Com. v. Hansen, M. ( 2017 )

J-S77037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MICHAEL L. HANSEN :
: No. 755 MDA 2017
Appellant
Appeal from the Judgment of Sentence March 31, 2017
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001007-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 18, 2017
Appellant Michael L. Hansen appeals from the March 31, 2017, judgment
of sentence entered in the Court of Common Pleas of Lancaster County
following the revocation of his probation. After a careful review, we affirm.
The trial court has aptly set forth the facts and procedural history
underlying this appeal as follows:
On February 8, 2017, [Appellant] pled guilty to defiant
trespass,1 conspiracy to commit defiant trespass,2 criminal
mischief,3 theft by unlawful taking,4 and two counts of simple
assault.5 The facts underlying [Appellant’s] guilty pleas involve
crimes committed by him and/or by others at his direction in the
course of [Appellant’s] employment as a bail bondsman. The
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1 18 Pa.C.S.A. § 3503(b)(1)(iii).
2 18 Pa.C.S.A. § 903(a)(1); 18 Pa.C.S.A. § 3503(b)(1)(iii).
3 18 Pa.C.S.A. § 3304(a)(5).
4 18 Pa.C.S.A. § 3921(a).
5 18 Pa.C.S.A. § 2701(a).
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* Former Justice specially assigned to the Superior Court.
J-S77037-17
victim, Lisa Brown, was an indemnitor on a bail bond [Appellant]
issued to Joshua Green. On December 8, 2016, [Appellant] and
several bounty hunters within his employ ransacked Ms. Brown’s
apartment and caused damage [to] her personal property.
[Appellant] and/or one of his associates also stole Ms. Brown’s dog
and took it to [Appellant’s] office.
[Appellant] returned to Ms. Brown’s apartment on
December 9, 2016, and unlawfully directed his crew of bounty
hunters to take Ms. Brown into custody. While being restrained,
handcuffed, and removed from her residence by [Appellant] and
his associates, [Ms. Brown] suffered injuries to her neck, back,
and wrists. [Appellant] also pointed a shotgun at one or more of
Ms. Brown’s neighbors that were observing the unlawful arrest to
clear them out of the way. [Appellant] confirmed these facts as
they were stated on the record at his guilty plea and stated that
those were the facts to which he was admitting by pleading guilty.
[Appellant] was initially sentenced to an aggregate term of
four (4) years of probation. Prior to sentencing, counsel for
[Appellant] requested that it be taken into consideration that
[Appellant] would be losing his insurance license, leaving the bail
industry, and pursuing a new career. Given the specific facts in
this case, including the nature of [Appellant’s] conduct and the
fact that he committed his crimes while abusing his authority as a
bail bondsman and while directing others to do the same, one of
the conditions of [Appellant’s] probation was that during the term
of his supervision, he not be in or associated with the bail bonds
business. [Appellant] did not file a post-sentence motion and did
not file a direct appeal.
On February 17, 2017, [Appellant’s] probation officer
observed a public message from [Appellant] on the Facebook page
of his bail bonds company stating that his wife had taken over the
bailing and that he was managing the office. Additionally, on
February 21, 2017, [Appellant] was observed to be behind a desk
at the office of Marquette Bail Bonds and wearing an identification
badge of the business. [Appellant] stipulated to the probation
violation at a hearing on March 31, 2017, and following a
revocation of probation, [he] was resentenced to an aggregate
term of time served to twelve (12) months of incarceration and a
four (4) year term of supervision. It was again made a condition
of [Appellant’s] supervision that he not be in or associated with
the bail bonds business. Additionally, [Appellant] confirmed that,
on March 16, 2017, he entered into a consent agreement and
voluntarily relinquished his insurance license. [Appellant] did not
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file a post-sentence motion, but did filed [sic] a [timely] notice of
appeal of the March 31, 2017, judgment of sentence[.] [All
Pa.R.A.P. 1925 requirements have been met.]
Trial Court Opinion, filed 6/23/17, at 1-4 (footnote containing citations to
record omitted).
On appeal, Appellant challenges the trial court’s condition of probation
directing that he “shall in no way play a role in any bail bondsmen business,
even if it is not your own. You shall not be associated in any way with any
bail bondsmen business, even your own.” N.T., 3/31/17, at 7. Further, that
he “shall not…be involved [with] bail bondsmen in any way[.]” Trial Court
Sentencing Order, filed 3/31/17. Appellant contends the condition of
probation constitutes an “illegal sentence” that is “manifestly unreasonable,”
not “reasonably related to his rehabilitation,” “unduly restrictive of his liberty,”
and “incompatible with his freedom of conscience.” Appellant’s Brief at 10,
11.
We must first determine whether Appellant’s challenge to this condition
imposed on his probation constitutes a challenge to the legality of his sentence
or whether it is, instead, a challenge to the discretionary aspects of his
sentence. A challenge to the legality of a sentence may be raised as a matter
of right, is non-waivable, and may be entertained so long as the reviewing
court has jurisdiction. Commonwealth v. Robinson, 931 A.2d 15, 19-20
(Pa.Super. 2007) (en banc). Conversely, when one questions the
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discretionary aspects of his sentence, an appeal is not guaranteed as of right.
Id.This Court has held that a challenge to the legality of a sentence is
essentially a claim that the trial court did not have statutory authority or
jurisdiction to impose the sentence that it handed down. Commonwealth v.
Nava, 966 A.2d 630, 632 (Pa.Super. 2009). This Court has held, however,
that a challenge to a condition of probation involves a matter specifically
committed to the jurisdiction of the sentencing court under the Sentencing
Code, 42 Pa.C.S.A. § 9754(b), and generally constitutes a challenge to the
discretionary aspects of a sentence rather than to its legality. See
Commonwealth v. Dewey, 57 A.3d 1267 (Pa.Super. 2012) (holding claim
trial court erred in imposing as condition of probation that the defendant have
no unsupervised contact with minors, including his own child, presented
challenge to discretionary aspects of sentencing); Commonwealth v. Houtz,
982 A.2d 537, 538 (Pa.Super. 2009) (holding challenge to probation condition
generally challenges the discretionary aspects of sentence and not the legality
of the sentence imposed); Commonwealth v. Hartman, 908 A.2d 316, 319
(Pa.Super. 2006) (holding claim trial court erred in placing a condition on a
defendant’s probation that he not possess or use a computer, own a cell phone
or PDA with Internet capabilities, or otherwise access the Internet presented
a challenge to the discretionary aspects of his sentence).
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In the case sub judice, Appellant clarifies that he is not challenging
whether the trial court, as a condition of probation, had the authority to
preclude him from “act[ing] as a bail bondsman.” Appellant’s Brief at 11.
Rather, he asserts that he is challenging the “overly broad and restrictive”
reach of the probation condition that precludes him from being “associated”
with bail bondsman or having “any association” with the industry as a whole.
See Appellant’s Brief at 11, 13. We conclude Appellant has raised a challenge
to the discretionary aspects of his sentence and not the legality of the
sentence the trial court imposed. Accordingly, Appellant is not entitled to an
appeal of his sentence as of right, but rather to an allowance of appeal at the
discretion of this Court.6 See 42 Pa.C.S.A. § 9781(b).
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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006) (citations
omitted).
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6 We note that, in an appeal from a sentence imposed after the court has
revoked probation, we may generally review “the validity of the revocation
proceedings, the legality of the sentence imposed following revocation,
and…challenge[s] to the discretionary aspects of the sentence imposed.”
Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.Super. 2015).
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Here, Appellant filed a timely notice of appeal, but he did not file a post-
sentence motion or otherwise preserve his discretionary aspects of sentencing
issue in the trial court. See Pa.R.Crim.P. 720. Nevertheless, there is no
indication in the record that Appellant was advised of his post-sentence rights
when he was sentenced following the revocation of his probation. Accordingly,
we decline to find waiver on this basis. See Commonwealth v. Patterson,
940 A.2d 493, 498 (Pa.Super. 2007) (“The courts of this Commonwealth have
held that a court breakdown occurred in instances where the trial court, at the
time of sentencing, either failed to advise Appellant of his post-sentence and
appellate rights or misadvised him.”); Commonwealth v. Malovich, 903
A.2d 1247, 1252 (Pa.Super. 2006) (“Given that Appellant was unaware of the
need to preserve claims in a motion for reconsideration, we find that he has
not waived those claims on appeal.”).
Moreover, Appellant’s brief does not contain a Rule 2119(f) statement.
The Commonwealth, however, has not objected to this omission. When the
appellant has not included a Rule 2119(f) statement and the appellee has not
objected, this Court may ignore the omission and determine if there is a
substantial question that the sentence imposed was not appropriate.
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004). Although
this Court is permitted to overlook a party’s failure to provide a 2119(f)
statement, it should only do so in situations where the substantial question
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presented is evident from the appellant's brief. Commonwealth v.
Saranchak, 544 Pa. 158, 675 A.2d 268, 277 n.18 (1996).
Here, in developing his appellate argument, Appellant specifically
references 42 Pa.C.S.A. § 9754(c)(13) of the Sentencing Code, and he
contends the trial court’s condition of probation is not consistent therewith.
This Court has held that an appellant who challenges a condition of his
probation pursuant to Section 9754(c)(13) raises a substantial question.
Dewey, supra; Hartman, supra. Accordingly, we shall proceed to a review
of the merits of the claim.
It is well-settled that:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)
(quotation omitted).
“A probation order is unique and individualized. It is constructed as an
alternative to imprisonment and is designed to rehabilitate a criminal
defendant while still preserving the rights of law-abiding citizens to be secure
in their persons and property.” Commonwealth v. Koren, 646 A.2d 1205,
1208 (Pa.Super. 1994). The trial court has discretion to order any reasonable
conditions that are “devised to serve the rehabilitative goals, such as
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recognition of wrongdoing, deterrence of future criminal conduct, and
encouragement of future law-abiding conduct.” Commonwealth v. Hall, 622
Pa. 396, 80 A.3d 1204, 1209 (2013). Section 9754(c)(13) of the Sentencing
Code specifically provides that “[t]he court may as a condition of its
[probation] order require the defendant:. . .To satisfy any other conditions
reasonably related to the rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his freedom of conscience.” 42
Pa.C.S.A. § 9754(c)(13).
Upon review of the record, we conclude the trial court did not abuse its
discretion in precluding Appellant from being “associated” with bail bondsman
or having “any association” with the industry as a whole. In supporting its
decision, the trial court relevantly indicated:
It is worth noting here and emphasizing that [Appellant] not
only committed his crimes in the course of his employment as a
bail bondsman, but acted in concert with others within the
industry. [Appellant] severely abused the authority and privileges
granted to him through his employment in the bail bonds industry
and encouraged and/or directed others within the industry to do
the same. He acted with extreme indifference to the rights of
others and proved himself a serious threat to the public and their
property, as well as a threat to the reputation of the bail bonds
industry. Prohibiting him from being involved in that industry
during the term of his supervision is not only rationally related to
[Appellant’s] rehabilitation, by impressing upon him the
seriousness of his crimes and preventing recidivism, but is
necessary to protect the public.
Trial Court Opinion, filed 6/23/17, at 10-11.
We find no abuse of discretion. The criminal charges at issue arose from
Appellant’s association with the bail bonds industry, including directing others
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within the industry to participate in his illegal actions. Moreover, the violation
of probation arose from Appellant attempting to continue his bail bonds
business via his wife while he worked “behind the scenes” and continued to
wear a badge at the office. Thus, we conclude the trial court’s prohibition
upon Appellant from being associated with the industry, as well as associating
with people in the industry, for a period of time is rationally related to the trial
court’s rehabilitative goals.
We note that “a person placed on probation does not enjoy the full
panoply of constitutional rights otherwise enjoyed by those who [have] not
run afoul of the law.” Koren, 646 A.2d at 1209 (quotations omitted). “A
probation order with conditions placed on it will to some extent always restrict
a person’s freedom.” Hartman, 908 A.2d at 321 (citation omitted). In the
instant case, the trial court’s condition of probation served the important goals
of protecting the public and preventing recidivism, and we conclude the trial
court did not abuse its discretion in this regard.7 See id.For all of the foregoing reasons, we affirm.
Affirmed.
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7 On appeal, Appellant asserts that the condition of probation has resulted in
“far reaching results.” See Appellant’s Brief at 12. In this regard, he suggests
generally that the probation condition has resulted in his wife separating from
him and a strained relationship with his sister and son. See id. However,
Appellant’s allegations of fact do not appear in the certified record and were
made without sufficient development for the first time on appeal. Thus, we
decline to review Appellant’s averments further.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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