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[U] Commonwealth v. Morrison

Superior Court of Pennsylvania

February 26, 2014



Appeal from the Judgment of Sentence, February 19, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at Nos. CP-02-CR-0004475-2010, CP-02-CR-0012312-2010




Roland Aaron Morrison appeals from the judgment of sentence of February 19, 2013, following his violation of probation. We affirm.

On September 14, 2011, appellant pled guilty to two counts of felony retail theft, as well as other charges, and received an aggregate sentence of 9 to 18 months' incarceration, followed by 3 years of probation. These were appellant's twelfth and thirteenth convictions of retail theft. (Notes of testimony, 9/14/11 at 10.) Appellant was explicitly warned that if he was convicted again, he would be facing state time. (Id. at 11.)

On August 17, 2012, appellant pled guilty to two new counts of retail theft, representing his fourteenth and fifteenth convictions for that offense. (Notes of testimony, 2/19/13 at 2, 4.) A violation of probation ("VOP") hearing was held on February 19, 2013. Probation was revoked, and appellant was resentenced to an aggregate of 3½ to 7½ years' imprisonment. Post-sentence motions were denied, and this timely appeal followed. Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

On appeal, appellant challenges the discretionary aspects of sentencing:

Was the three and a half to seven and a half year sentence of incarceration imposed manifestly excessive, unreasonable, and an abuse of discretion where the court did not consider [appellant]'s rehabilitative needs or his nature and characteristics?

Appellant's brief at 6.

The sentence imposed 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.'" Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001), quoting Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (other citations omitted). See also Commonwealth v. Cartrette, A.3d, 2013 WL 6821398 (Pa.Super. filed December 24, 2013) (en banc) (holding that this court's scope of review on appeal from a probation revocation sentence includes discretionary sentencing challenges). As the Coolbaugh court observed:

We recently summarized our standard of review and the law applicable to revocation proceedings as follows:
Our review is limited to determining the validity of the probation 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. 42 Pa.C.S.A. § 9771(b) . . . . Also, 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. Finally, it is the law of this Commonwealth that 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). Id., quoting Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000) (other citations omitted). We also note that the sentencing guidelines do not apply to sentences imposed as the result of probation revocations. Id. (citations omitted).

An appellant wishing to appeal the discretionary aspects of a probation-revocation sentence has no absolute right to do so but, rather, must petition this Court for permission to do so. [Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)]; 42 Pa.C.S.A. § 9781(b). Specifically, the appellant must present, as part of the appellate brief, a concise statement of the reasons relied upon for allowance of appeal. Malovich, 903 A.2d at 1250; Pa.R.A.P. 2119(f). In that statement, the appellant must persuade us there exists a substantial question that the sentence is inappropriate under the sentencing code. Malovich, 903 A.2d at 1250; Pa.R.A.P. 2119(f).

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

In general, an appellant may demonstrate the existence of a substantial question by advancing a colorable argument that the sentencing court's actions were inconsistent with a specific provision of the sentencing code or violated a fundamental norm of the sentencing process. Malovich, 903 A.2d at 1252. While this general guideline holds true, we conduct a case-specific analysis of each appeal to decide whether the particular issues presented actually form a substantial question. Id. Thus, we do not include or exclude any entire class of issues as being or not being substantial. Id. Instead, we evaluate each claim based on the particulars of its own case. Id.

Id. at 289-290.

In his Rule 2119(f) statement, appellant claims that his sentence was manifestly excessive where the trial court failed to consider "[appellant]'s rehabilitative needs, his minimal threat to the public, his age, his mental illness, and his marked change in clarity since being properly medicated." (Appellant's brief at 13-14.) Similarly, in appellant's Rule 1925(b) statement, he argues that his criminal conduct was driven by mental illness and substance abuse issues; that he is in need of rehabilitation, not incarceration; that he is not a danger to society since being properly medicated; and that his prior offenses consist primarily of non-violent acts aimed at gaining money to fuel his drug addiction. (Appellant's Rule 1925(b) statement, 7/2/13 at 3.) Appellant's argument that the trial court failed to properly weigh certain mitigating factors -- such as his age, his need for drug treatment, and the non-violent nature of his crimes -- does not raise a substantial question for review. Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008), appeal denied, 600 Pa. 774, 968 A.2d 1280 (2009) (citation omitted) ("[A]n allegation that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate.").

To the extent appellant raises a substantial question by alleging that the trial court failed to consider certain statutory factors including his need for rehabilitation, the record belies appellant's claims. As stated above, appellant had fifteen prior convictions for retail theft including the two new convictions resulting in his probation being revoked. Appellant has been under probation supervision on 23 different cases since 1992. (Notes of testimony, 2/19/13 at 3.) He was removed from Mental Health Court in 2011 for leaving the treatment facility within days of placement, and absconded from ACTA, an alternative housing program, in June of 2012. (Id.) His probation officer indicated that he was not sure what to do with appellant. (Id. at 3-4.) The trial court remarked,

He's got a five prior record score. He's RFEL [(Repeat Felony Offender)]. He's been given every opportunity, every tool we have, and that is from opportunities for supervision on probation, to JRS [(Justice Related Services)] plans, to mental health treatment, to alternative housing, and he has continued on his course. He apparently doesn't think much of the retail thefts.

Id. at 7.

As the trial court states, appellant has clearly demonstrated his inability or unwillingness to comply with the reasonable rules of society. (Trial court opinion, 8/30/13 at 5.) The trial court considered the statutory factors delineated in 42 Pa.C.S.A. § 9721(b), and a sentence of total confinement was manifestly appropriate. There is simply nothing to review here.

Judgment of sentence affirmed.

Judgment Entered.

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