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[U] Commonwealth v. Reid

Superior Court of Pennsylvania

February 11, 2014



Appeal from the Judgment of Sentence March 27, 2013 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002590-2006




Appellant, Joseph John Reid, Jr., appeals from the March 27, 2013 judgment of sentence of 18 months to four years' imprisonment imposed following the revocation of his probation.[1] After careful review, we affirm.

The trial court has summarized the relevant factual and procedural history as follows.

On February 2, 2007, [] Appellant plead guilty to [a]ggravated [i]ndecent [a]ssault upon a [v]ictim [l]ess than 13 [y]ears of [a]ge.[2] On May 8, 2007, he was sentenced to three (3) to six (6) years of incarceration followed by two years of probation along with the condition that he is prohibited from having contact with any minors and [his] co-defendant. He was also deemed a lifetime Megan's Law registrant for the crime [he] committed.
[Appellant was subsequently brought before the trial court on allegations that he violated conditions of his probation. On January 10, 2013, Appellant waived his Gagnon I[3] hearing.] On March 20, 2013, [during his Gagnon II hearing, ] Appellant stipulated to violating two conditions[ of his probation:] condition 5c requiring refraining from assaulting behavior and condition 8 requiring no contact with minor children. Having stipulated to the violations, [Appellant] was sentenced on March 27, 2013, to a term of eighteen (18) months to four (4) years of incarceration and was given credit for time served from January 3, 2013.
[] Appellant filed an [a]mended [m]otion for [r]econsideration of [s]entence on April 4, 2013, which was denied on April 8, 2013.

Trial Court Opinion, 12/26/13, at 1. This timely notice of appeal followed on April 24, 2013.[4]

Appellant raises the following issue on appeal.

1. Did the [t]rial [c]ourt abuse its discretion by imposing a manifestly excessive sentence of total confinement without considering all relevant factors of the Sentencing Code, [42 Pa.C.S.A. §§ 9701-9799.41, ] specifically [S]ections 9721 and 9771?

Appellant's Brief at 3.

Our review is guided by the following.

[T]he proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. … An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012) (citation omitted).

Likewise, we review a sentence imposed following the revocation of probation for an error of law or an abuse of discretion. Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa.Super. 2008). As the revocation of a sentence of probation is within the sound discretion of the trial court, "our review is limited to determining the validity of the revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing." Id.

[W]e must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. … [A] sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.

Id. at 887 (citations and quotation marks omitted).

Herein, Appellant does not challenge the legality of his sentence. Rather, Appellant's sole issue raised on appeal pertains to the discretionary aspects of his sentence. Id. at 6. See Commonwealth v. Cartrette, 2013 Pa.Super. LEXIS 4573, *36 (Pa.Super. 2013) (en banc) (concluding that a claim that "the sentencing court did not consider the appropriate sentencing factors delineated in 42 Pa.C.S.A. § 9721(b)[ is] a challenge to the discretionary aspects of [a] sentence[]").

It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal. [Therefore, b]efore we reach the merits of this issue, we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa.Super. 2013) (citations omitted), appeal denied, 2013 Pa. LEXIS 2828 (Pa. 2013).

Instantly, Appellant filed a timely notice of appeal, preserved his claim in a timely post-sentence motion, and included a separate Pa.R.A.P. 2119(f) statement within his appellate brief. See Appellant's Brief at 7. Accordingly, Appellant has complied with the technical requirements to challenge the discretionary aspects of his sentence. See Edwards, supra at 330.

Turning to the substantial question analysis, we have previously concluded that "a claim that a particular probation revocation sentence is excessive in light of its underlying technical violations can present a [substantial] question that we should review." Commonwealth v. Carver, 923 A.2d 495, 497 (Pa.Super. 2007), citing Commonwealth v. Sierra, 752 A.2d 910, 912, 913 (Pa.Super. 2000). Herein, Appellant alleges that the trial court imposed a manifestly excessive sentence considering that his "sentence… was based entirely on technical violations." Appellant's Brief at 12-13. Accordingly, Appellant has raised a substantial question pursuant to Carver. We will address the merits of his claim. See Edwards, supra.

As provided, Appellant argues that the trial court did not properly consider the factors set forth in Sections 9721 and 9771 of the Sentencing Code when formulating his sentence. Appellant's Brief at 13. Appellant's specific arguments follow.

First, [Appellant] had not been convicted of another crime, as required by [S]ection 9771(c)(1). Second, the evidence and [Appellant's] background, which originally reflected a prior record score of "0", did not indicate or suggest that [Appellant] was likely to commit another offense if he were not imprisoned, as required by [S]ection 9771(c)(2). Third, the situation was such that total confinement was not required to vindicate the authority of the [trial] court pursuant to [S]ection 9771(c)(3).
[W]hile technically contrary to the condition placed upon [Appellant] in 2007, [Appellant's] single technical violation is not demonstrative that [Appellant] intended to offend or ignore the authority of the [trial c]ourt. In contrast, had [Appellant] possessed the intent to thwart the authority of the [trial] court, the technical violation would not have involved the minor children of his girlfriend, but, rather, it would have involved contact with his own children, for whom he sought a relationship but had not had contact….

Id. at 13-14.[5]

Alternatively, the Commonwealth maintains that the trial court's sentence appropriately vindicated the trial court's authority, pursuant to Section 9771(c)(3), for the hereafter reasons.

[Appellant] as much as admitted that he violated a term of probation of which he was aware and that he knew he was violating that term as he did so. …
Appellant[] was well aware that he was not allowed, at this point, to have any contact with minor children. Yet he did so knowing that he was in direct violation of the [trial] court's order.

Commonwealth's Brief at 3-4. Upon review, we agree.

The Sentencing Code provides that the trial court may impose a sentence of total confinement upon revocation of a sentence of probation if one of following three circumstances applies.

§ 9771. Modification or revocation of order of probation

(c) Limitation on sentence of total confinement.--The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(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 the court.

42 Pa.C.S.A. § 9771(c). We have consistently held "[t]echnical violations can support revocation and a sentence of incarceration when such violations are flagrant and indicate an inability to reform." Carver, supra at 498; see also Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa.Super. 2012) (concluding that appellant's frequent contact with his young nieces was not a de minimus violation of his probation when one of his probation conditions barred him from having any contact with minors), appeal denied, 67 A.3d 796 (Pa. 2013).

Herein, the trial court asserts that its sentence of total confinement was necessary under the latter two subsections of Section 9771(c), i.e., "the conduct of [Appellant] indicates that it is likely that he will commit another crime if he is not imprisoned[ and] such a sentence is essential to vindicate the authority of the [trial] court." 42 Pa.C.S.A. § 9771(c). Initially, the trial court concluded that a total confinement of Appellant was necessary because Appellant's assaultive and dismissive behavior indicates that he will likely commit another crime if not imprisoned. Trial Court Opinion, 12/26/13, at 9-12. Specifically, the trial court rationalized as follows.

Appellant violated the terms of his probation by assaulting a member of the public specifically, his paramour's [18-year-old] son. This clearly indicates a need to incarcerate [Appellant] to prevent [him] from assaulting another member of the public. In addition, the other violation committed by [] Appellant was his contact with minor children. [] Appellant convinced himself that having contact with minors was acceptable as long as he imposed his own condition[:] that the contact was supervised by other adults. This complete ignorance of th[e trial c]ourt's order shows a risk to the public as [Appellant] may once again impose his own conditions of probation to come in contact with a minor and create an environment susceptible to offending.

Id. at 10.

Additionally, the trial court found its total confinement sentence necessary to vindicate its authority. Id. at 8-12. Specifically, the trial court reasoned as follows.

Appellant engaged in a lengthy conversation with th[e trial c]ourt, wherein he attempted to justify his violation by stating that he made sure the visits with the minor children were supervised. This shows a complete lack of respect for the authority of the [trial c]ourt and its order to completely refrain from any contact with the minor children. [] Appellant believed he could be out of prison and alter the terms of his probation at his own discretion. He then stated that he had issues with this parole agent and the parole office stating that he "was on a lack of supervision." In light of the above statement, [] Appellant's lack of respect for th[e trial c]ourt's order while on probation, and his attempt to minimize his behavior, including consideration of [] Appellant's record, th[e trial c]ourt believed incarceration was necessary.

Id. at 8 (citations to notes of testimony omitted).

As discussed within the trial court's opinion, the following dialogue occurred between Appellant and the court at the time of sentencing.

[Trial Court]: And one of the primary special conditions imposed by th[e trial c]ourt is that you have no contact with minor children, and you were staying at a place where there [were] minor children, correct?
[Appellant]: I was visiting with my girlfriend.
None of the contact with the minors was unsupervised. I made sure that there was at least someone around. The mother [of the children] was always there if there was any contact.
[Trial Court]: So what you're saying is you only partially didn't follow my order, but because of the fact that you made provisions for it to be supervised I should go along with that.
[Appellant]: No. I wanted to make sure that nothing would happen.
[Trial Court]: Nothing would happen if you just followed the order.

N.T., 3/27/13, at 3-4.

Instantly, the trial court presided over Appellant's case from his initial guilty plea in 2007 through his probation violation hearing in 2013. Trial Court Opinion, 12/26/13, at 6. When the trial court originally sentenced Appellant, it considered a Presentence Investigation Report (PSI). Id. at 6-7. Following Appellant's 2013 admissions, the trial court continued Appellant's sentencing hearing for one week so that it could "review [Appellant's] records from the PA Department of Corrections which [were] provided through the PA Board of Probation and Parole." Trial Court Order, 3/20/13. When the trial court sentenced Appellant following the revocation of his probation, "[it] remained informed by the PSI and all the relevant information surrounding Appellant's character and the facts [underlying his] case." Trial Court Opinion, 12/26/13, at 7. Following the above-mentioned exchange with Appellant, the trial court sentenced Appellant to total confinement pursuant to 42 Pa.C.S.A. § 9771(c)(2)-(3). As "it is evident that the [trial] court was aware of sentencing considerations and weighed the considerations in a meaningful fashion[, ]" this sentence should not be disturbed. See Ahmad, supra.

Herein, the sentencing transcript reveals that Appellant blatantly disregarded the trial court's order to have no contact with minor children. N.T., 3/27/13, at 3, 7. Additionally, Appellant admitted to engaging in assaultive behavior against an 18-year-old male. Trial Court Order, 3/20/13. Although these violations were technical in nature, it does not follow that they are de minimis and cannot support a sentence of incarceration. See Schutzues, supra. Following the trial court's consideration of Appellant's admissions and explanations, it aptly concluded that Appellant presented a continuing danger to minor children and the community at large. Trial Court Opinion, 12/26/13, at 10. Accordingly, we conclude that the trial court did not abuse its discretion when it sentenced Appellant to total confinement following the revocation of his probation. As a result, Appellant's argument fails.

Based on the foregoing, we conclude the trial court did not abuse its discretion when it sentenced Appellant to 18 months to four years' imprisonment after it revoked his probation. See Provenzano, supra. Accordingly, the trial court's March 27, 2013 judgment of sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.


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