March 10, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
AAKI MORRIS, Appellant
Appeal from the Judgment of Sentence Entered August 17, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0311941-2002.
BEFORE: SHOGAN, OTT and PLATT [*] ,JJ.
Appellant, Aaki Morris, appeals from the judgment of sentence entered following the revocation of his probation. We affirm.
The trial court summarized the procedural history of this case as follows:
[Appellant] entered a negotiated guilty plea to theft by deception and credit card fraud and, pursuant thereto, was sentenced to two (2) years reporting probation on May 31, 2002. On May 24, 2007, after having incurred both direct and technical violations, defendant's probation was revoked by this court and he was sentenced to six (6) to twelve (12) months in a county correctional facility, followed by one (1) year reporting probation. Defendant's petition for parole was granted on December 7, 2007 and defendant was released from custody. Following his release from prison, defendant reported to his probation officer for a few months, then stopped reporting in July 2008. Accordingly, an absconder warrant was issued for his arrest on September 15, 2008. However, defendant was not taken into custody on this warrant until August 25, 2011. In the period between the date he absconded and the date of his arrest on the outstanding warrant, defendant incurred four (4) arrests and two (2) convictions and served prison terms in two (2) different counties.1 On July 6, 2012, at a Gagnon II hearing, this court revoked defendant's probation, and set the matter down for argument on defendant's motion to dismiss for failure to timely hold a violation of probation hearing. On July 24, 2012, this court heard argument and denied defendant's motion. On August 17, 2012 this court imposed a sentence of incarceration in a state correctional facility for a period of two and one-half (2 1/2) to five (5) years. Defendant filed a notice of appeal on September 17, 2012 and was ordered to file a Statement of Matters Complained of on Appeal on September 18, 2012. Said statement was filed on October 9, 2012. This Court filed an opinion pursuant to Pa.R.A.P. 1925(a) on November 20, 2012. Defendant subsequently filed a "Petition to Remand to Lower Court for Acceptance of Supplemental Rule 1925(b) Statement and Issuance of Supplemental Rule 1925(b) Statement, and Petition to Vacate Briefing Schedule" with the Superior Court, raising additional issues with respect to the discretionary aspects of his sentence. The Superior Court remanded the matter to this Court on March 22, 2013, directing this defendant to file a supplemental Statement of Matters Complained of on Appeal, addressing the discretionary aspects of his sentence. Said Statement was filed on April 12, 2013.
1 Defendant incurred arrests in both Berks and Montgomery counties. He was convicted in Berks County on CP-06-CR-0001730-2011 and in Montgomery County on CP-46-CR-0000468-2011. In separate guilty pleas, defendant was sentenced to separate, but identical, sentences of nine (9) to twenty-three (23) month[s], followed by two (2) years [of] probation in both cases.
Trial Court Opinion, 6/11/13, at 1-2 (footnote in original).
Appellant presents the following issue for our review:
Where [Appellant] admittedly acted in direct and technical violation of parole, then served and was paroled from nine-month sentences of incarceration in other counties without a timely violation hearing in Philadelphia, then was released for nine months during which time [Appellant] appropriately reported to the probation department, tested to be drug-free, obtained employment and was providing for his son and family, did not the lower court abuse its discretion and impose an unduly harsh and excessive punishment, in contravention of the general standards set forth by 42 Pa.C.S.A. § 9721 and particularly without regard for the rehabilitative needs of [Appellant], by sentencing [Appellant] to a term of incarceration in a state institution for a period of 2 ½ to 5 years?
Appellant's Brief at 4.
As this Court recently clarified in Commonwealth v Cartrette, __A.3d__, 2013 PA Super. 325 (Pa. Super. filed December 24, 2013) (en banc), our scope of review following the revocation of probation is not limited solely 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. Rather, it also includes challenges to the discretionary aspects of the sentence imposed. Specifically, we unequivocally held that "this Court's scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges." Id. at *11. Further, as we have long held, the imposition of sentence following the revocation of probation is vested within the sound discretion of the court, which, absent an abuse of that discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
We are also mindful that "[t]he right to appeal a discretionary aspect of sentence is not absolute." Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super. 1999). Rather, where an appellant challenges the discretionary aspects of a sentence, the appeal should be considered to be 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):
An 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. ; (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)). The determination of whether there is a substantial question is made on a case-by-case basis, and 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. Sierra, 752 A.2d at 912-913.
Herein, the first three requirements of the four-part test are met, those being that Appellant brought an appropriate appeal, raised the challenge in his post-sentence motion, and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court.
In Appellant's 2119(f) statement, he argues that the trial court abused its discretion by failing to consider Appellant's rehabilitative needs and the protection of the public. Appellant's Brief at 12-13. Essentially, Appellant asserts that the sentencing court failed to properly consider factors set forth under 42 Pa.C.S.A. § 9721(b). Thus, we conclude that, in this instance, Appellant has raised a substantial question. See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (concluding that the appellant raised a substantial question where it was alleged that the trial court failed to consider the factors set forth in 42 Pa.C.S.A. § 9721(b)). Nevertheless, we conclude that Appellant is entitled to no relief on his claim, as the record reveals that the court properly considered the protection of the public and Appellant's rehabilitative needs in fashioning the sentence.
Again, we are mindful of our standard of review, which is as follows:
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.
Sierra, 752 A.2d at 913 (citations and quotation marks omitted).
With regard to our review of a sentence imposed following the revocation of probation, we observe that, "[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." Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010). When imposing a sentence of total confinement after a probation revocation, the sentencing court is to consider the factors set forth in 42 Pa.C.S.A. § 9771(c) and 42 Pa.C.S.A. § 9721(b). Commonwealth v. Ferguson, 893 A.2d 735 (Pa. Super. 2006). Pursuant to Section 9771(c), a court may sentence a defendant to total confinement after a revocation of probation if one of the following conditions exists:
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 this court.
42 Pa.C.S.A. § 9771(c); Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001). A sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question, 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. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006). See also Commonwealth v. Fish, 752 A.2d 921, 924 (Pa. Super. 2000) (reiterating that although a court is required to explain its reasons for imposing sentence, it need not specifically cite or include the language of the sentencing code; it must only demonstrate that the court had considered the factors specified in the code.).
Appellant argues that the term of imprisonment he was ordered to serve, which was the statutory maximum, is manifestly excessive and unreasonable. In effect, Appellant contends that his sentence, although within the statutory guidelines, was inappropriate in light of the fact that he took responsibility for his crime and that he has become a productive member of society.
Our review of the record reflects that at the time of sentencing, the court heard testimony from Appellant's girlfriend, who is also the mother of one of his children, N.T., 8/17/12, at 5-12; one of Appellant's brothers, id. at 13-20; and Appellant's mother, id. at 20-26. In addition, our review of the record reflects that the court listened to Appellant's stated remorse, his efforts to be a productive member of society, and his attempts at rehabilitation. Id. at 28-32, 35-36. The trial court also heard from Appellant's counsel who reiterated that Appellant had benefitted from the passing of time and the support of his family. Id. at 26-28. Appellant's counsel concluded with the following statement:
He totally changed this time. Now, is it because he's 32? Is it because he has a wonder[ful] girlfriend? He's close to his children? I don't know why. Maybe it's just because of age. And his older brother is now taking an active part in his life. But he did change, and he was doing extremely well. Setting up family counseling, trying to get full-time employment, working two jobs to try to make ends meet.
And then that rug was pulled out from under him, great prejudice to him, to his children, and his family, he was taken off the street.
Id. at 34-35.
The record further reflects that the trial court offered the following exhaustive explanation for the imposition of the instant prison sentence upon Appellant:
[Appellant], I want you to appreciate that I have given due consideration to all the factors I'm obliged to consider before imposing a sentence. I have read and reviewed the presentence investigative report. I have recourse to the guidelines. I've considered your need for rehabilitation. And I've considered society's need for protection. I've considered all the factors I'm required to consider as imposed on this Court by both our appellate courts and the legislature.
What it boils down to, sir, is that you have used your considerable intellect to [prey] on other people, and you have done it routinely.
And you have now seized onto the contention that because between October of '11 and July of '12 your matter was not brought before me for resolution, that all should be forgiven. That because you avoided arrests during that short window, and established a relationship with a woman, and the fact that you have a child, and your mother loves you, we should somehow forget the fact that you have 16 arrests, 9 convictions, 10 commitments, 8 violations, 8 revocations.
You were arrested in Montgomery County on 12/99 for a felony issue of credit cards and given a county sentence. You left there and you went to Georgia. You were arrested twice in Georgia for forgery. At age 21 you were back in Pennsylvania, Montgomery County, arrested [for] theft by deception, [for] which you received two years [of] probation.
You were, again, at age 22, back before a judge in Montgomery County for unauthorized use of an automobile, [for] which you received two years [of] probation.
You were before me following that arrest in October of '01, the case we are here for today, and you [pled] guilty to theft by deception.
Now, it is inconceivable that the Commonwealth would negotiate a sentence of two years [of] probation in a case where someone had four times been arrested for crimes of deception, forgery, credit card fraud, until you take a look at what it would require to convict you. There would have been the necessity to bring five witnesses to show that you used an unauthorized credit card to purchase an airline ticket and then reap the benefits of the monies therefrom.
Why, in a city rampant with violent crime, should the Commonwealth extend monies to prosecuting you in the hopes that you will be incarcerated and you will be willing to rehabilitate and accept a period of probation? You received a period of probation, and shortly thereafter, you are back in Montgomery County, this time graduating to selling drugs. And for the felony of possession with intent to deliver a controlled substance, with five previous convictions, you got a grand total of 9 to 23 months in the county prison.
Now, having already committed crimes in two states, Pennsylvania and Georgia, you then set out at age 25 to commit criminal activity in New Jersey; convicted of receiving stolen property over there. Back in Montgomery County, retail theft. And again two counts of forgery; one in Berks County and one in Montgomery County.
You have had an atrocious history of convictions for crimes against your fellow citizens. You have on this record, [defense counsel's] advocacy aside, for a period of October '11 to July '12, been less than a stellar citizen. You have contributed nothing to society. You've taken from those around you. And it is time that you be punished for your misdeeds. It is time for the courts to give serious consideration to who you are and what your needs are as well as the society's need for protection.
So on CP-51-CR-0311941-2002, on the charge of theft by deception, a misdemeanor of the first degree, the Court imposes a term of not less than two and [one] half, no[r] more than five years of state incarceration. With a condition that you pay the restitution of $419 that's a decade overdue. That while you're in prison, you are to enroll and complete some kind of training so you could get a job upon release. And in line with the notation in the report that these kinds of crimes usually involve people with an underlying drug disorder, or in my humble opinion, people who simply don't want to work, I'm going to require that you as a condition before you are to be considered for parole, submit to an evaluation to determine your need for alcohol and drug therapy, and that you enroll and complete such therapy if there is a need for such therapy.
Further, upon your release on parole, that you are required to be gainfully employed with a W-2 Form not less than six months after your release.
N.T., 8/17/12, at 36-40.
Upon review, we discern no abuse of discretion as the court carefully considered Appellant's need for rehabilitation, as well as the necessity to protect the public, when it imposed the prison sentence following the revocation of probation. Accordingly, Appellant is entitled to no relief.
Judgment of sentence affirmed.