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[U] Commonwealth v. Simms

Superior Court of Pennsylvania

February 3, 2014



Appeal from the Judgment of Sentence Entered February 15, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0006174-2007.




Appellant, Maurice Simms, appeals from the judgment of sentence imposed after the trial court revoked his probation. We affirm.

Appellant and an accomplice robbed a seventy-six-year-old man at gunpoint on the morning of May 10, 2007, as the victim was walking his motorcycle through his yard to an alley. Appellant and his cohort absconded with $25.00. A jury convicted Appellant of robbery, graded as a first-degree felony, on August 16, 2007. The trial court sentenced him on September 21, 2007, to incarceration for an aggregate term of two and one-half to five years, followed by five years of probation. N.T., 9/21/07, at 14. Appellant filed post-sentence motions, which the trial court denied following a hearing. N.T., 10/26/07, at 5. Appellant filed a notice of appeal to this Court at 3135 EDA 2007, but discontinued the appeal on April 10, 2008. After serving his maximum state sentence, Appellant was released from custody on May 23, 2012. He did not report to the probation department to begin his five-year probationary sentence.

In October 2012, Appellant was arrested for disorderly conduct (engaging in fighting), 18 Pa.C.S.A. § 5503(a)(1). Following a bench trial on January 9, 2013, the trial court found Appellant guilty and sentenced him on the same day to no further penalty. While awaiting trial on the disorderly conduct charge, Appellant was arrested on November 9, 2012, and charged with burglary, criminal trespass, and defiant trespass. He entered a negotiated plea on January 23, 2013, to defiant trespass (actual communication), 18 Pa.C.S.A. § 3503(b)(1)(i), and the Commonwealth withdrew the burglary and criminal trespass charges. The trial court sentenced Appellant to twelve months of probation.

Appellant was taken into custody for alleged probation violations on January 25, 2013, and he appeared for a hearing on February 15, 2013. The trial court found Appellant to be in direct and technical violation of his probation, revoked probation, and sentenced him to incarceration for two and one-half to five years. N.T., 2/15/13, at 8. Appellant filed a timely post-sentence motion, which was denied by operation of law. Petition to Vacate and Reconsider Sentence, 2/22/13.

This timely appeal followed, in which Appellant presents a single question for our consideration:

Did not the lower court err and abuse its discretion by sentencing appellant to a manifestly excessive and unreasonable sentence following the revocation of appellant's probation in light of the minor probation violations at issue in this case, where the lower court failed to give proper consideration to appellant's individualized circumstances and where the Court failed to explain how, as a matter of law, this sentence was the least stringent sentence adequate to protect the community?

Appellant's Brief at 4.[1]

Appellant's issue challenges the discretionary aspects of his sentence. See Commonwealth v. Baker, 72 A.3d 652 (Pa.Super. 2013) (recognizing a claim that an aggregate sentence was excessive is treated as a challenge to the discretionary aspects of sentencing).[2] Where an appellant challenges the discretionary aspects of a sentence there is no automatic right to appeal, and an appellant's appeal should be deemed a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010):

[a]n appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
[W]e 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. [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa.Super. 2006)).

Here, Appellant has satisfied the first three requirements. He filed a timely appeal; he preserved his sentencing claim in a post-sentence motion; and Appellant's brief includes a Pa.R.A.P. 2119(f) statement of reasons relied upon for allowance of appeal. Appellant's Brief at 12. Thus, we next determine if Appellant's sentencing challenge raises a substantial question.

Whether a particular issue constitutes a substantial question about the appropriateness of a sentence is to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001). This Court will grant the appeal "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Sierra, 752 A.2d 910, 912–913 (Pa.Super. 2000) (quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc)).

In his Rule 2119(f) statement, Appellant argues that:

[his] probation was revoked as a result of two minor direct violations, both misdemeanors of the third degree, and a technical violation stemming from a misunderstanding about [his] reporting requirements . . . . [T]he sentence imposed far surpassed that required to protect the public and to respond to the gravity of the offenses involved in this matter. This presents a substantial question. While appellant's failure to satisfy the conditions of his probation entitled the lower court to re-sentence him, the complete lack of individualized sentencing and failure to place sufficient reasons for sentencing appellant to a lengthy incarceration sentence on the record also presents a substantial question.

Appellant's Brief at 9, 11.

One component of Appellant's challenge is a claim that the sentencing court "failed to take into consideration his individualized circumstances, " i.e., his two direct violations involved misdemeanor offenses and he was "erroneously informed by prison officials that his sentence was complete." Appellant's Brief at 9, 13. However, an allegation that the trial court failed to consider particular circumstances or factors in an appellant's case goes to the weight accorded to various sentencing factors and does not raise a substantial question. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013). Therefore, we decline to review this aspect of Appellant's discretionary challenge.

Another component of Appellant's challenge implicates section 9721(b) of the Pennsylvania Sentencing Code, which provides, in relevant part, as follows:

In every case in which the court . . . resentences an offender following revocation of probation . . ., the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b). Appellant complains that the sentencing court "failed to place sufficient reasons for sentencing appellant to a lengthy incarceration sentence on the record." Appellant's Brief at 13. Given its statutory basis, this claim advances a colorable argument that the sentencing judge's actions were inconsistent with an express provision of the Sentencing Code and, therefore, raises a substantial question that the sentence was inappropriate. Thus, we shall review it. In doing so, we apply a well-settled standard of review:

Sentencing is a matter vested within the discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. An abuse of discretion requires the trial court to have acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).

Upon review, we conclude that the record belies Appellant's claim. Before imposing the post-revocation sentence, the sentencing court addressed counsel and Appellant as follows:

I specifically told [Appellant] that he has been given an enormous break; instead of the mandatory 5 to 10[, ] over the Commonwealth's objection, I sentenced him to 2-and-a-half to 5, plus . . . 5 years' subsequent probation[.]
Mr. Simms, when you were last before me, you had four arrests -- two adjudications as a juvenile -- four arrests and one conviction as an adult. This was a gunpoint robbery and despite that, you were given 2-and-a-half to 5 years in prison and advised that there were any number of conditions[:] that you were to be enrolled in a vocation training program, get drug and alcohol therapy while in prison. Upon your release, you were to be gainfully employed in a W-2 type of employment within three months and you were to submit to drug and alcohol therapy.
You have managed to get arrested and convicted twice within six months of your release from prison. You are not amenable to probation. I have considered all the factors I am obliged to, including your need for rehabilitation and society's need for protection. I have considered the factors required by our Appellate Courts and those required by the Legislature[.]

N.T., 2/15/13, at 9, 15–16.

As evidenced by the foregoing remarks, the sentencing court provided a statement of its reasons for the sentence imposed on the record in open court. Specifically, the sentencing court relied on Appellant's history of juvenile adjudications and adult convictions. The sentencing court noted that Appellant's first-degree felony conviction carried a mandatory sentence of five to ten years of incarceration. Nonetheless, the sentencing court gave Appellant "an enormous break" by sentencing him to half of that time, plus probation. Moreover, the sentencing court pointed out that, within six months of Appellant's release, he directly violated his probation by committing two additional offenses. Based on Appellant's conduct, the sentencing court concluded that Appellant was not amenable to further probation. In light of the record at hand, we discern no abuse of the sentencing court's discretion. Accord Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa.Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013) ("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 [to] the conditions imposed on him.").

The final component of Appellant's challenge is an assertion that the sentencing court imposed a manifestly excessive and unreasonable sentence in light of his violations. To the extent that Appellant focuses on his technical violation, i.e., failing to report for probation, he has raised a substantial question. Schutzues, 54 A.3d at 98 (acknowledging argument that trial court imposed excessive sentence to technical violations raises substantial question). Thus, we shall address this aspect of Appellant's sentencing challenge.

Upon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000); 42 Pa.C.S.A. § 9771(b). In other words,

"[p]ursuant to 42 Pa.C.S. § 9771(b), when a defendant is found in violation of his probation, upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation." Crump, 995 A.2d at 1284. Once probation has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist: "(1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or, (3) such a sentence is essential to vindicate the authority of court." 42 Pa.C.S.A. § 9771(c)(1-3); Fish, 752 A.2d at 923.

Here, the trial court addressed Appellant's challenge as follows:

Not only was [Appellant's] sentence within statutory limits, it was also reasonable. See Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.Super. 2011) (recognizing that "the term [']unreasonable' generally means a decision that is either irrational or not guided by sound judgment"). In determining whether a sentence was reasonably imposed, the appellate court reviews: (1) the nature and circumstances of the offense and the history and characteristics of the individual; (2) the sentencing court's opportunity to observe the individual, including any presentence investigation; (3) the findings upon which the sentence was based; and (4) the guidelines promulgated by the commission. Id. (citing 42 Pa. C.S. §9781(d)). The record shows that this court considered all pertinent factors before imposing a reasonable sentence upon [Appellant].
In determining [Appellant's] sentence, this court considered all relevant factors, including the number of victims harmed by [Appellant's] criminal conduct, the manner in which [Appellant] committed these crimes, the protection of society, the sentencing guidelines, as well as his age, mental aptitude, education attainment, employment history, prior criminal record, and rehabilitative needs. See N.T. 02/15/13; 42 Pa. C.S. § 9721(b) (stating factors that court must consider when imposing sentence). Because this court carefully reviewed the sentencing guidelines, the statutory maximum for his conviction, the facts of this case, [Appellant's] individual circumstances and background, and all other legally permissible factors, there is no support for [Appellant's] claim that his sentence was excessive or unreasonable. As the court held in Commonwealth v. Eicher, 605 A.2d 337, 354 (Pa.Super. 1992) (quoting Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa.Super. 1990)), the sentencing court must be accorded great weight "as it is in the best position to view the individual's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime." As indicated above, this court carefully assessed [Appellant's] individual situation and all of the circumstances surrounding the various crimes he committed before imposing sentence. Thus, there is not merit to his claim that an unreasonable sentence was imposed.

Trial Court Opinion, 5/16/13, at 5–6.

Upon review pursuant to our deferential standard, we discern no abuse of the sentencing court's discretion. Appellant received a statutorily based sentence of total confinement after revocation of his probation for technical and direct violations. Appellant's post-revocation sentence, combined with the original sentence of two and one-half to five years, was less than the statutory maximum of twenty years for robbery, graded as a first-degree felony. 18 Pa.C.S.A. § 3701(a)(1)(i-iii), (b); 18 Pa.C.S.A. § 1103(1). The record supports the reasonableness of Appellant's sentence. He had a juvenile and adult criminal record, culminating in a violent crime — robbing a victim at gunpoint. He received a lenient sentence as part of a plea bargain and served his prison sentence but failed to report for his probationary sentence.[3] Additionally, Appellant did not obtain W-2 employment within three months of his release from prison. In fact, within six months of his release, Appellant committed additional crimes, which resulted in two convictions. Despite what Appellant describes as "the minor nature of [his] probation violations, " Appellant's Brief at 14, the above factors provide a sufficient basis for the trial court to sentence Appellant to a period of total confinement.

We note Appellant's reliance on Commonwealth v. Ferguson, 893 A.2d 735 (Pa.Super. 2006). Therein, this Court affirmed a post-revocation sentence of total confinement, but reversed the additional thirty-six year probationary sentence as excessive. We opined that:

the most compelling consideration for this Court in reviewing [Ferguson's] lengthy sentence of probation is his rehabilitative need. While the sentencing court was clearly concerned with [Ferguson's] recidivism, the court did not address how a 36 year period of probation would contribute to [Ferguson's] rehabilitative needs.

Ferguson, 893 A.2d at 740. Unlike Ferguson, Appellant committed a violent crime and did not receive a probationary sentence following revocation. Thus, we consider his reliance on Ferguson to be misplaced. Similarly, Commonwealth v. Parlante, 823 A.2d 927 (Pa.Super. 2003), is distinguishable. Therein, we reversed a post-revocation sentence of total confinement because:

the trial court failed to consider Parlante's age, family history, rehabilitative needs, the pre-sentence report or the fact that all of her offenses were non-violent in nature and that her last two probation violations were purely technical. The trial court based Parlante's sentence solely on the fact that her prior record indicated that it was likely that she would violate her probation in the future but failed to consider other important factors.

Parlante, 823 A.2d at 930. Unlike the sentencing court in Parlante, the sentencing court under review did consider all of the sentencing factors and supplied adequate reasons for sentencing Appellant to a term of confinement. N.T., 2/15/13, at 9, 15–16; Trial Court Opinion, 5/16/13, at 7. Thus, Appellant's reliance on Parlante is also misplaced.

In light of the record before us, we conclude that the revocation sentence of two and one-half to five years of incarceration is neither grossly disparate to Appellant's conduct nor does it "viscerally appear as patently 'unreasonable.'" Commonwealth v. Mastromarino, 2 A.3d 581, 588 (Pa.Super. 2010) (quoting Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595, 599 (Pa.Super. 2010)). Thus, Appellant has failed to establish that the trial court imposed an excessive or unreasonable sentence given the nature of his probation violation. Hence, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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