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[U] Commonwealth v. Howlett

Superior Court of Pennsylvania

June 28, 2013



Appeal from the Judgment of Sentence November 19, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000963-2011, CP-41-CR-0000420-2008




Jack Larue Howlett appeals from the judgment of sentence of one and one-half to four years incarceration that was imposed in criminal action number CP-41-CR-0000420-2008 on November 19, 2012, and the consecutive judgment of sentence of six to twelve months incarceration imposed simultaneously at criminal action number CP-41-CR-0000963-2011. These sentences were the result of the revocation of intermediate punishment that Appellant was accorded in each case. We affirm.

In the 2008 action, Appellant was charged with possession with intent to deliver a controlled substance ("PWID"), delivery of a controlled substance, possession of a controlled substance, criminal conspiracy, and criminal use of a communication facility. The charges arose from an undercover investigation during which Appellant transferred cocaine to a confidential informant. On October 13, 2009, Appellant, who had a prior record score of three, pled guilty to PWID. He received twenty-four months probation, which was below the guideline recommendations. One of the conditions of Appellant's probation was that he had to abstain from using illegal drugs. In March 2011, his probation officer received information that Appellant was violating that condition by using heroin and that he had been admitted to a drug treatment facility. Against medical advice, Appellant thereafter left that institution. In April, 2011, Appellant gave a urine sample to his probation officer that tested positively for heroin.

In June 2011, Appellant was charged with possession of heroin and drug paraphernalia at CP-41-CR-0000963-2011. The court therefore revoked Appellant's probation in the 2008 case and sentenced Appellant to intermediate punishment under the intermediate punishment program

("IPP"). It conditioned continuation of intermediate punishment upon Appellant's successful completion of a treatment regimen named the Drug Court Program.

Thereafter, on September 14, 2011, Appellant pled guilty to both offenses charged in the 2011 action, and he was sentenced to a consecutive term of twelve months of intermediate punishment under IPP supervision that likewise was conditioned on completion of the Drug Court Program. Refraining from use of illegal drugs was a condition of both the terms of the IPP and the Drug Court Program.

On February 2012, Appellant voluntarily committed himself to Divine Providence Hospital as he had suicidal ideations. That facility administered a drug test, which was positive for the presence of cocaine. After Appellant left the hospital, he was detained for violating intermediate punishment. The court deferred ruling on revocation pending a mental health evaluation by Dr. Terri Calvert. In July 2012, Appellant provided his probation officer with a urine sample that established that he was under the influence of opiates. He was then found to be in violation of the intermediate punishment imposed at both criminal cases. The court deferred sentencing pending an additional evaluation from Dr. Calvert.

At the November 19, 2012 sentencing on the violations, the court outlined that the following facts informed its decision. Appellant, who was fifty-two years old, had a long history of drug use that began when he was twelve years old. When he was admitted to Divine Providence Hospital, Appellant conceded that "he had chronic drug use and had, in the past sold drugs." N.T. 11/19/12, at 6. His wife displayed a history of drug abuse, as well as his brother, who died from a cocaine-induced heart attack. Since April 4, 1991, Appellant had been committed to county prison fifteen times. Dr. Calvert concluded that Appellant's mental health issues, which included anxiety and non-specific bipolar disorder, were secondary to his drug use and would diminish if he ceased that activity. Appellant's probation officer recommended an aggregate sentence with respect to both actions of two and one-half to seven years imprisonment.

The sentencing court concurred that state incarceration was necessary, explaining: "I'm absolutely convinced that you need to be re-incarcerated because if not, you'll continue to use, and you'll continue to commit other offenses. I'm convinced as well that what we've tried up to this point hasn't worked" and that "we've exhausted the resources that are available here [at the county level]." Id. at 30. The court thus concluded that Appellant was unable to voluntarily cease drug use based on his extensive history. The court imposed a state sentence two to five years imprisonment, with credit for time served.[1] The court justified its sentence as follows: "I think it's appropriate under the circumstances. I think it reflects the fact that, you know, you've continued to use, and you've not taken advantage of the opportunities. Plus, I think to some extent, the resources in the state, to the extent you choose to take advantage of them, will help you." Id. at 31.

In this appeal, Appellant complains that "the sentencing court abused its discretion by imposing a manifestly unreasonable and excessive state sentence without considering the fundamental norms underlying the sentencing process." Appellant's brief at 6. Appellant's contention relates to the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not guarantee an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Prisk 13 A.3d 526, 532 -533 (Pa.Super. 2011) (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006)).

In this case, the notice of appeal was timely filed, and Appellant preserved his sentencing challenge at the sentencing hearing. N.T. 11/17/12, at 13-15. Additionally, Appellant included in his brief a separate statement of the reasons for allowance of appeal from the discretionary aspects of his sentence, as required by Pa.R.A.P. 2119(f). Appellant's brief at 13. Appellant complains that the court ignored several relevant sentencing factors, which raises a substantial question. Commonwealth v. Bricker, 41 A.3d 872 (Pa.Super. 2012).

We employ the following principles when reviewing a trial court's revocation sentence:

The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment—a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.
When assessing whether to revoke probation, the trial court must balance the interests of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa.Super. 2012) (quoting Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa.Super. 2011)). The same standards are applicable to the revocation of the imposition intermediate punishment. See Commonwealth v. Kuykendall, 2 A.3d 559 (Pa.Super. 2010).

Appellant argues that the court did not explain why a state sentence would further his rehabilitative needs. We disagree. The court clearly delineated that Appellant was not successful in the county programs that were made available to him, that Appellant demonstrably was unable to stop his use of cocaine and heroin, and that the state system could offer better help with his drug issues. As we have noted, "A sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence . . . but the record as a whole must reflect the sentencing court's consideration of the facts of the crime and character of the offender." Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa.Super. 2012). In this case, the court adequately explained why it imposed a state sentence and considered Appellant's character and the nature of the crimes, both of which were drug offenses.

Appellant also maintains that the sentence was improper since it "was made clear that appellant had mental health issues that were not taken into consideration or addressed by the county while he was on supervision." Appellant's brief at 10. The record of the sentencing transcript substantiates that Appellant was ineligible for the county mental health treatment program due to his substance use. N.T., 11/19/12, at 12. The sentencing court did not control the fact that the mental health treatment program was unavailable to Appellant and is not responsible for this default. Indeed, the sentencing court considered the problem with the county system as a reason that Appellant should be sentenced to state time. Thus, this allegation affords Appellant no relief.

Finally, Appellant suggests that the court placed undue emphasis on his lifelong drug use when it imposed the sentences herein. Appellant does not contest that he used cocaine and heroin for forty years, and the record substantiates his chronic relapses during the term of his probation imposed in the 2008 case as well as during his participation in the IPP. The court was permitted to consider this history when sentencing, and we are not permitted to remand for resentencing based upon the weight placed by the sentencing court on this factor. Commonwealth v. Macias, 968 A.2d 773 (Pa.Super. 2009). Hence, the allegation that the court placed undue weight on Appellant's history of drug abuse does not warrant reversal.

Finally, in light of Appellant's repeated failures to abide by the requirement that he refrain from drug use to retain his eligibility for the IPP, we reject Appellant's averment that the sentence was excessive and unreasonable. "A trial court does not necessarily abuse its discretion in imposing a seemingly harsh post-revocation sentence where the defendant originally received a lenient sentence and then failed to adhere the conditions imposed on him." Schutzues, supra at 99. Hence, we conclude that the court did not abuse its discretion in the present matter and affirm.

Judgment of sentence affirmed.

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