Opinion
J-A28015-17 No. 1494 EDA 2015
12-21-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. DOUGLASS CASEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 20, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004121-2010, CP-51-CR-0004540-2013 BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Douglass Casey, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following revocation of his probation at both docket numbers. We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant facts of this case. Therefore, we have no reason to restate them. Procedurally, we add Appellant entered a negotiated guilty plea on August 19, 2010, to theft by unlawful taking and access device fraud at Docket No. 4121-2010. That same day, the court sentenced Appellant to an aggregate term of nine (9) to twenty-three (23) months' incarceration, plus three (3) years' probation. Appellant filed no post-sentence motion or direct appeal.
While on probation on July 11, 2013, Appellant entered a negotiated guilty plea to forgery at Docket No. 4540-2013. That same day, the court sentenced Appellant at Docket No. 4540-2013 to three (3) to twelve (12) months' incarceration, plus one (1) year probation. The court also revoked Appellant's probation at Docket No. 4121-2010 and resentenced Appellant to nine (9) to twenty-three (23) months' incarceration, plus two (2) years' probation, to run consecutive to the sentence at Docket No. 4540-2013. On July 22, 2013, Appellant filed a motion for reconsideration of his new sentence at Docket No. 4121-2010, which the court denied on July 25, 2013. Appellant subsequently sought no appellate review.
While on probation on December 9, 2014, Appellant entered a negotiated guilty plea to robbery at Docket No. 9228-2014. With the benefit of a pre-sentence investigation ("PSI") report, the court conducted a sentencing hearing on April 20, 2015. At the conclusion of the hearing, the court sentenced Appellant, to two (2) to four (4) years' incarceration, plus four (4) years' probation at Docket No. 9228-2014. The court also revoked Appellant's probation and resentenced Appellant at Docket No. 4121-2010 and Docket No. 4540-2013. At Docket No. 4121-2010, the court resentenced Appellant to an aggregate term of two (2) to four (4) years' incarceration, plus one (1) year probation, to run consecutive to the sentence at Docket No. 9228-2014. At Docket No. 4540-2013, the court resentenced Appellant to one (1) to two (2) years' incarceration, to run consecutive to the new sentence at Docket No. 4121-2010. In sum, the court imposed an aggregate sentence of five (5) to ten (10) years' incarceration, plus five (5) years' probation.
Within thirty days of resentencing, Appellant filed a post-sentence motion, which the court denied, and a timely notice of appeal from the revocation sentences at Docket No. 4121-2010 and Docket No. 4540-2013. On January 27, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied on February 9, 2016.
Appellant raises one issue for our review:
DID NOT THE [SENTENCING] COURT ERR AND ABUSE ITS DISCRETION WHEN IT IMPOSED A MANIFESTLY EXCESSIVE VIOLATION OF PROBATION SENTENCE WHICH FAR SURPASSED WHAT WAS REQUIRED TO PROTECT THE PUBLIC, THE COMPLAINANT OR THE COMMUNITY AND WAS WELL BEYOND WHAT WAS NECESSARY TO FOSTER APPELLANT'S REHABILITATION?(Appellant's Brief at 3).
When reviewing the outcome of a revocation proceeding, this Court is limited to determining the validity of the proceeding, the legality of the judgment of sentence imposed, and the discretionary aspects of sentencing. Commonwealth v. Cartrette , 83 A.3d 1031, 1033-34 (Pa.Super. 2013) (en banc) (explaining that, notwithstanding prior decisions which stated our scope of review in revocation proceedings is limited to validity of proceedings and legality of sentence, this Court's scope of review on appeal from revocation sentencing can also include discretionary sentencing challenges).
Appellant argues the court disregarded Appellant's rehabilitative needs when it imposed the revocation sentences at Docket No. 4121-2010 and Docket No. 4540-2013. Appellant avers the sentencing court failed to consider Appellant's childhood history as a victim of physical, emotional, and sexual abuse, as well as his need for mental health and substance abuse treatment. Appellant maintains the court did not consider that Appellant had participated in rehabilitation programs while in custody and had the support of two service providers, who attended the April 20, 2015 sentencing hearing. Appellant concludes the court imposed an excessive and unreasonable sentence. Appellant's challenge is to the discretionary aspects of his sentence. See Commonwealth v. Lutes , 793 A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno , 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating allegation court ignored mitigating factors challenges discretionary aspects of sentencing).
Appellant preserved this claim in his motion for modification of sentence, Rule 1925(b) statement, and Rule 2119(f) statement. --------
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa.Super. 2000). When appealing the discretionary aspects of a sentence, an appellant must also invoke the appellate court's jurisdiction by, inter alia, including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 425-26, 812 A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal 'furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.'" Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)). "The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Anderson , 830 A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists "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 , supra at 913 (quoting Commonwealth v. Brown , 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).
A claim of excessiveness can raise a substantial question as to the appropriateness of a sentence under the Sentencing Code, even if the sentence is within the statutory limits. Mouzon , supra at 430, 812 A.2d at 624. Bald allegations of excessiveness, however, do not raise a substantial question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather, a substantial question exists "only where the appellant's Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process...." Id. See , e.g., Cartrette , supra (indicating claim that revocation court ignored appropriate sentencing factors raises substantial question). Significantly, an allegation that the sentencing court failed to consider certain mitigating factors, absent more, does not raise a substantial question for our review. Commonwealth v. Rhoades , 8 A.3d 912, 918-19 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328 (2011), cert. denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012). See also Commonwealth v. Berry , 785 A.2d 994, 997 (Pa.Super. 2001) (holding claim that sentencing court ignored appellant's rehabilitative needs failed to raise substantial question).
In the context of probation revocation and resentencing, the Sentencing Code provides, in pertinent part:
§ 9771. Modification or revocation of order of probation
(a) General rule.—The court may at any time
terminate continued supervision or lessen or increase the conditions upon which an order of probation has been imposed.
(b) Revocation.—The court may revoke an order of probation upon proof of the violation of specified conditions of the 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.
(c) Limitation on sentence of total confinement.—The court shall not impose a sentence of total confinement upon revocation unless it finds that:
42 Pa.C.S.A. § 9771(a)-(c). "The reason for revocation of probation need not necessarily be the commission of or conviction for subsequent criminal conduct. Rather, this Court has repeatedly acknowledged the very broad standard that sentencing courts must use in determining whether probation has been violated." Commonwealth v. Colon , 102 A.3d 1033, 1041 (Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015).(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.
* * *
"In general, 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." Commonwealth v. Hoover , 909 A.2d 321, 322 (Pa.Super. 2006). The Sentencing Guidelines do not apply to sentences imposed following a revocation of probation. Commonwealth v. Ferguson , 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 (2006). "[U]pon 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. Coolbaugh , 770 A.2d 788, 792 (Pa.Super. 2001).
Pursuant to Section 9721(b), "the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b). "[T]he 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." Id. Nevertheless, "[a] sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence...." Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, "the record as a whole must reflect the sentencing court's consideration of the facts of the crime and character of the offender." Id. See also Commonwealth v. Carrillo- Diaz , 64 A.3d 722, 727-28 (Pa.Super. 2013) (explaining where revocation court presided over defendant's no contest plea hearing and original sentencing, as well as his probation revocation hearing and sentencing, court had sufficient information to evaluate circumstances of offense and character of defendant when sentencing following revocation).
Instantly, Appellant's claim that the court failed to consider specific mitigating factors (Appellant's rehabilitative needs, history as a victim of abuse, participation in rehabilitative programs, and support from service providers) and his bald claim of excessiveness do not raise substantial questions meriting review. See Mouzon , supra; Berry , supra. In any event, the court had the benefit of a PSI report at sentencing. Therefore, we can presume the court considered the relevant factors when it sentenced Appellant. See Commonwealth v. Tirado , 870 A.2d 362, 368 (Pa.Super. 2005) (holding where sentencing court had benefit of PSI report, law presumes court was aware of and weighed relevant information regarding defendant's character and mitigating factors).
Moreover, even if Appellant had raised substantial questions, we would affirm on the basis of the trial court's opinion. ( See Trial Court Opinion, filed July 25, 2016, at 5-6) (finding: sentencing court fashioned sentence that accounted for need to protect public, rehabilitative needs of Appellant, and gravity of Appellant's offenses; Appellant's previous periods of incarceration and probation failed to dissuade him from continuing to commit crimes; Appellant's three crimes were similar in nature and progressively offensive; despite mitigating factors, Appellant's most recent offense warranted lengthy period of incarceration to break his pattern of behavior and victimization; Appellant required more appropriate sentence to protect community; further, Appellant's sentences were under statutory maximum for those offenses). The record supports the trial court's rationale. See Hoover , supra. Accordingly, we affirm.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/21/2017
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