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[U] Commonwealth v. Jones

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
STEVEN JONES, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 12, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0010449-2011

BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Steven Jones, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following the revocation of his probation. He claims that the sentence of one to five years is excessive. We affirm.

We adopt the facts and procedural history set forth in the trial court's opinion. See Trial Ct. Op., 7/9/13, at 1-2. On March 1, 2013, Appellant conceded he violated his probation and the court ordered a presentence investigation. On April 12, 2013, the court sentenced Appellant to one to five years' imprisonment. Appellant did not file a motion to modify his sentence, but timely appealed on May 1, 2013. On May 2, 2013, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement by May 24, 2013. Appellant untimely filed his Rule 1925(b) statement on June 5, 2013. The trial court filed a responsive Pa.R.A.P. 1925(a) opinion.

As a prefatory matter, we address Appellant's untimely filed Rule 1925(b) statement. In Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc), the Court opined that if the Rule 1925(b) statement was untimely filed, "this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal." Burton, 973 A.2d at 433. Instantly, because the trial court filed a responsive opinion to Appellant's untimely Rule 1925(b) statement, we decline to find Appellant's issue waived on this basis. See id.

Appellant raises the following issue: "Was the revocation court's sentence manifestly excessive?" Appellant's Brief at 3. Appellant contends that the trial court erred by failing to adequately weigh his character prior to imposing sentence. Specifically, Appellant suggests the court should have weighed more heavily his mental health and substance abuse issues. We hold Appellant is not entitled to relief.

This Court has stated that

[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Prior to reaching the merits of a discretionary sentencing issue:
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).
Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa.Super. 2006) (some citations and punctuation omitted).

Instantly, Appellant timely appealed but did not preserve his issue at the sentencing hearing or in a motion to modify his sentence. See Evans, 901 A.2d at 533. Appellant, therefore, has waived his issue for appellate review, and we are precluded from examining its merits.[1] See id. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

OPINION

GLENN B. BRONSON, J.

I. PROCEDURAL BACKGROUND

On October 31, 2011, defendant Steven Jones pled guilty, pursuant to a negotiated plea agreement, to one count of carrying a firearm without a license (18 Pa.CS. § 6106(a)(1)). After the plea was accepted, the Court imposed the negotiated sentence of five years reporting probation. Thereafter, defendant absconded from supervision. On May 30, 2012, defendant appeared before the Court for a violation of probation hearing. At that time, the Court revoked defendant's probation, ordered a Forensic Intensive Recovery ("FIR") evaluation to address defendant's drug and alcohol problems, and re-sentenced him to a new term of five years reporting probation. The Court warned defendant that the next time that he violated his probation, the Court would likely impose a state sentence.

Once again, defendant absconded from supervision, and an absconder warrant was issued on August 1, 2012. His whereabouts were unknown to the Probation Department until December 16, 2012, when he was arrested for driving under the influence of a controlled substance (marijuana) ("DUI") (75 Pa.CS. § 3802(d)) and false identification to a law enforcement official ("false identification") (18 Pa.CS. § 4914(d)). Since a conviction on these new charges would constitute a direct violation of defendant's probation, defendant decided to move the new case in front of the undersigned judge so that he could plead guilty to the new charges and then be sentenced at the same time for the new offenses and for the accompanying violation of probation.[1] Accordingly, on March 1, 2013, defendant pled guilt)' to the new charges, and conceded the violation of probation regarding the firearms charge. On that same day, the Court revoked defendant's probation and ordered that a pre-sentence report, mental health examination, and Court Reporting Network ("CRN") evaluation be completed in preparation for a consolidated sentencing. On April 12, 2013, the Court sentenced defendant to one to five years incarceration for the revocation of probation on the charge of carrying a firearm without a license. The Court also sentenced defendant to one to six months incarceration for the DUT charge, and one month to one year of incarceration for the false identification charge. All sentences were run concurrently for an aggregate sentence of one to five years.

Defendant did not file post-sentence motions. Defendant has now appealed from the judgment of sentence entered by the Court on the ground that the sentence imposed by the Court was "manifestly excessive." Statement of Matters Complained of Pursuant to Pa.R.A.P. 3925(b) ("Statement of Errors") at ¶1. For the reasons set forth below, defendant's claim is without merit and the judgment of sentence should be affirmed.

II. FACTUAL BACKGROUND

The factual basis proffered by the Commonwealth for defendant's guilt)' plea to the charge of carrying a firearm without a license, to which defendant agreed, established the following. On August 23, 2011, defendant was walking down the street when a Philadelphia police officer observed a bulge in his pocket. The officer then saw that the bulge was a gun, and detained defendant. The gun was an operable, silver handgun with seven rounds of ammunition in the magazine.

The factual basis proffered by the Commonwealth for defendant's guilty plea to the DUT charge and the false identification charge, to which defendant agreed, established the following. On December 16, 2012, Philadelphia Police Officer Eugene Roher was in his patrol car when he observed defendant put his car in reverse in the middle of Pine Street. N.T. 3/1/2013 at 19-20. Officer Roher activated his siren, and stopped defendant for investigation. N.T. 3/1/2013 at 20. As Officer Roher approached defendant's car, he immediately smelled alcohol and marijuana emanating from the vehicle. N.T. 3/1/2013 at 20. He asked defendant for Ms driver's license and registration. N.T. 3/1/2013 at 20. Defendant then gave Officer Roher several different names and dates of birth, at which point Officer Roher removed defendant from the vehicle. N.T. 3/1/2013 at 20. Defendant had bloodshot eyes and slurred speech, and Officer Roher had to ask defendant certain questions several times to elicit a response. N.T. 3/1/2013 at 20, Defendant was arrested, and a drug test was performed. N.T. 3/1/2013 at 21-22. The result of the drug test demonstrated that, at the time that he was operating the vehicle, defendant had marijuana in his blood to a point where he was unable to safely operate the vehicle. N.T. 3/1/2013 at 21-22.

III. DISCUSSION

Defendant claims that "[t]he Court's sentence of 1 to 5 years state incarceration was greater than necessary under 42 Pa.C.S. § 9781(d) and 42 Pa.C.S. § 9721(b). Therefore, Appellant raises a manifestly excessive sentence claim." Statement of Errors at ¶ 1. This claim is waived, and is, in any event, without merit.

Defendant's claim that his sentence was excessive is addressed to the discretionary aspects of sentencing. See, e.g., Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010). It is well-established that objections to the discretionary aspects of sentencing are waived for purposes of appeal "if they are not raised at the sentencing hearing or raised in a motion to modify the sentence." Commonwealth v. Anderson, 830 A.2d 1013, 1016 (Pa.Super. 2003). Similarly, "when a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that new sentence either by objecting during the revocation sentencing or by filing a post-sentence motion." Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

In the case at bar, defendant did not raise a claim during the sentencing hearing that his sentence was excessive, and did not file any post-sentence motions objecting to his sentence. Accordingly, his claim on appeal that Ins sentence was excessive has been waived under the authority cited above.

In any event, defendant's challenge to sentence as being "manifestly excessive" is frivolous. First, only defendant's sentence for the revocation of probation on the gun charge had any effect on his aggregate sentence. The sentences on the DUI and the false identification charges were less than the sentence on the firearms charge, and all were run concurrently, resulting in defendant receiving no additional time at all for the two new charges.

As for the one to five year sentence on the firearms charge, it is settled law that "[t]he imposition of sentence following the revocation of probation Ms vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal.'" Commonwealth v. Coolbangh, 770 A.2d 788, 792 (Pa.Super. 2001) (quoting Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000)). "In order to establish that the sentencing court abused its discretion, [defendant] must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, bias or ill will, or arrived at a manifestly unreasonable decision." Commonwealth v. Williams, 2013 PA.Super. 151, 2013 WL 3198409 at *3 (Pa.Super. 2013).

Here, the record demonstrates that the Court's sentence of one to five years, rather than being excessive, was an extremely lenient sentence. The firearms charge here at issue, for carrying a firearm without a license, is a third-degree felony, carrying a maximum penalty of 3 ½ to 7 years incarceration. When defendant was originally sentenced on October 31, 2011, following his guilty plea to this charge, the sentencing guidelines had a standard range of 12 to 24 months, plus or minus 12 months for the aggravated and mitigated ranges, respectively.[2] Although a sentence at the very bottom of the standard range of the guidelines would have been a state sentence, the Court sentenced defendant to five years probation. Having received this very generous sentence from the Court, defendant responded by absconding from supervision and using drugs just a few months later.

Nevertheless, on May 30, 2012, the Court once again imposed a probationary sentence, allowing defendant to receive drug treatment from the street. This second opportunity for defendant to serve a probationary sentence turned out to be an unfortunate error in the judgment of the Court. Defendant again absconded from supervision, walked out on his drug program, and remained a fugitive for several months before being arrested on the DUI and false identification charges described above. Even with this extraordinary history, the Court still sentenced defendant at the bottom of the standard range of the guidelines, [3] In doing so, the Court explicitly considered the entire history of defendant's case, his rehabilitative needs, and his mental health and drug problems. N.T. 4/12/2013 at 14-15. There is utterly nothing in the record to support defendant's claim that the sentence was, in any way, an abuse of discretion.

IV. CONCLUSION

For ail of the foregoing reasons, the Court's judgment of sentence should be affirmed.


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