Com. v. Logsdon, J. ( 2016 )


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  • J-S20025-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JOHNNY RAY LOGSDON, JR.
    Appellant                  No. 1251 WDA 2015
    Appeal from the Judgment of Sentence July 1, 2015
    In the Court of Common Pleas of Jefferson County
    Criminal Division at No(s): CP-33-CR-0000387-2013
    BEFORE: PANELLA, OLSON and PLATT,* JJ.
    MEMORANDUM BY OLSON, J.:                           FILED MARCH 29, 2016
    Appellant, Johnny Ray Logsdon, Jr., appeals from the judgment of
    sentence entered on April 28, 2015 following the revocation of his probation.
    We affirm.
    The certified record establishes the following factual and procedural
    history. On March 5, 2014, the trial court sentenced Appellant to five years’
    probation after accepting his guilty plea to one count of unauthorized use of
    an access device (18 Pa.C.S.A. § 4106(a)). While serving this probationary
    sentence, Appellant was convicted of new charges, including possession of a
    controlled substance (35 P.S. § 780-113(a)(16)) and presenting false
    identification to law enforcement officers (18 Pa.C.S.A. § 4914).    The trial
    court found Appellant to be in violation of the terms of his probation and, on
    August 12, 2014, modified his probationary sentence to include 60 days’
    *Retired Senior Judge assigned to the Superior Court.
    J-S20025-16
    incarceration in the Jefferson County Jail. Pursuant to the terms of the trial
    court’s August 12, 2014 order, Appellant was to serve his sentence
    “beginning August 22 through August 24, 2014 and each weekend thereafter
    until his sentence [was] complete.” Trial Court Order, 8/12/14.
    On April 20, 2015, while on work release, Appellant tested positive for
    opiates in violation of the conditions of his probation and the terms of his
    work release.      Because of this violation, the trial court, on July 1, 2015,
    docketed an order that revoked Appellant’s probation and sentenced him to
    three and one-half to seven years’ imprisonment in a state correctional
    facility, with credit for time served.         Gagnon Order, 7/2/15.   On July 15,
    2015, Appellant filed a motion for reconsideration of his sentence, which the
    court denied on that same date. Appellant filed a notice of appeal on July
    30, 2015.1
    Appellant presents one issue for our review:
    Whether the trial court abused its discretion when it revoked
    Appellant’s probation and resentenced him to serve a sentence
    of incarceration in [a] [s]tate [c]orrectional [i]nstitution for a
    minimum of three and one-half (3½) years to a maximum of
    seven (7) years for [A]ppellant’s violation of probation[?]
    Appellant’s Brief at 6.
    ____________________________________________
    1
    On July 31, 2015, the trial court ordered Appellant to file a concise
    statement of errors complained of on appeal (“concise statement”). See
    Pa.R.A.P. 1925(a).     On August 11, 2015, Appellant filed his concise
    statement. The trial court issued its Rule 1925(a) opinion on September 25,
    2015.
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    Appellant’s lone issue challenges the discretionary aspects of his
    sentence.2     See Commonwealth v. Haynes, 
    125 A.3d 800
    , 806 (Pa.
    Super. 2015). Pursuant to statute, Appellant does not have an automatic
    right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
    § 9781(b).     Instead, Appellant must petition this Court for permission to
    appeal the discretionary aspects of his sentence.        
    Id. As this
    Court has
    explained, in order to reach the merits of a discretionary aspects claim,
    [w]e conduct a four-part analysis to determine: (1) whether
    [the] 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. [708]; (3) whether [the] 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. Leatherby, 
    116 A.3d 73
    , 83 (Pa. Super. 2015) (citation
    omitted).
    On July 30, 2015, Appellant filed a timely notice of appeal to the
    judgment of sentence issued on July 1, 2015. See Pa.R.A.P. 903(a) (“notice
    of appeal required by Rule 902 (manner of taking appeal) shall be filed
    within 30 days after the entry of the order from which the appeal is taken”);
    Pa.R.Crim.P. 708(E) (motion to modify revocation sentence does not toll
    30-day appeal period).         In addition, Appellant included within his brief a
    ____________________________________________
    2
    By now, it is well-settled that a challenge to the discretionary aspects of a
    revocation sentence represents a cognizable issue on appeal.               See
    Commonwealth v. Cartrette, 
    83 A.3d 1030
    (Pa. Super. 2013) (en banc).
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    statement pursuant to Pa.R.A.P. 2119(f). Hence, Appellant satisfied the first
    and third prongs of the foregoing test.
    The fourth prong of the foregoing test asks whether the appellant
    raises a substantial question as to whether his sentence is appropriate under
    the Sentencing Code. “An appellant must, pursuant to [Pa.R.A.P.] 2119(f),
    articulate 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.”
    Commonwealth v. Shugars, 
    895 A.2d 1270
    , 1274 (Pa. Super. 2006)
    (internal citations and quotations omitted). Whether a substantial question
    exists focuses “on the reasons for which the appeal is sought, in contrast to
    the facts underlying the appeal, which are necessary only to decide the
    appeal on the merits.” 
    Id. In his
    Rule 2119(f) statement, Appellant argues that his sentence is
    unreasonable because it constituted too severe a punishment in light of the
    nature of his probation violation.    Appellant also claims that the court’s
    explanation for the sentence did not justify its severity. We read Appellant’s
    contentions as alleging that the court failed to consider the sentencing
    factors delineated in 42 Pa.C.S.A. § 9721(b).           As such, we hold that
    Appellant raises a substantial question. See Cartrette, 
    83 A.3d 1042-1043
    (claim that trial court's sentence is inconsistent with gravity of probation
    violation, the need for public protection, or defendant’s rehabilitative needs
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    is tantamount to assertion that sentencing court did not consider the
    appropriate sentencing factors delineated in 42 Pa.C.S. § 9721(b), which
    raises a substantial question).
    We now consider the second prong of the foregoing test; i.e., whether
    Appellant properly preserved his discretionary sentencing challenge before
    the trial court. In this case, Appellant failed to object to the discretionary
    aspects of his sentence at the July 1, 2015 resentencing hearing. See N.T.,
    7/1/15, at 2-4. However, on July 15, 2015, Appellant filed a post-sentence
    motion seeking modification of his sentence.      The trial court denied the
    motion on that same date. Under Pa.R.Crim.P. 708(E), “A motion to modify
    a sentence imposed after a revocation shall be filed within 10 days of the
    date of imposition.”     Pa.R.Crim.P. 708(E).   Thus, Appellant’s motion for
    modification was due on or before Monday, July 13, 2015. See 1 Pa.C.S.A.
    § 1908 (computation of time). Because Appellant did not seek modification
    of his sentence until July 15, 2015, his discretionary sentencing challenge is
    waived since his post-sentence motion was untimely and, therefore, was not
    properly preserved before the trial court. Nonetheless, even if we were to
    reach the merits of Appellant’s discretionary sentencing claim, we conclude
    that he is not entitled to relief.
    Appellant argues that his maximum sentence for a technical violation
    is manifestly unreasonable. Specifically, he claims that the trial court failed
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    to explain why a lesser sentence would not have been sufficient to vindicate
    the court’s authority.
    “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.” Commonwealth v. Clarke, 
    70 A.3d 1281
    ,
    1287 (Pa. Super. 2013) (citation omitted).       The sentencing court must
    “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).    In addition, in all cases where the court “resentences an
    offender following revocation of probation …, the 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. In its
    Rule 1925(a) opinion, the trial court offered the following
    explanation for imposing its sentence of three and one-half to seven years’
    total confinement following Appellant’s probation violation.
    Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of total
    incarceration is warranted if it is deemed to be necessary to
    vindicate the authority of the court. As the [trial c]ourt stated
    on the record, that was the case here. [Appellant] was on work
    release – an opportunity many inmates do not enjoy – when he
    violated his probation by ingesting opiates. What he thereby
    accomplished was to convince the [c]ourt that he had no respect
    or concern for its authority. He had already violated his original
    probationary sentence and was serving weekends in the county
    jail because of it. That lesser penalty clearly did not make the
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    desired impression, though. Something more was required. And
    something more is what the [c]ourt gave [Appellant] on July 1,
    2015.
    As well as addressing the nature of the violation itself, the [trial
    c]ourt advised [Appellant] that it [] reviewed the presentence
    investigation   report    and      [considered]    his   individual
    circumstances in fashioning his sentence. In doing so, [the trial
    court] adequately articulated its reasons for the sentence, which,
    incidentally, included the boot camp recommendation he
    requested.
    Trial Court Opinion, 9/25/15, at 1-2.
    We perceive no abuse of discretion in the sentence imposed by the
    trial court.   Indeed, the record reflects that the court considered the
    sentencing code, the circumstances of Appellant’s probation violation, a
    presentence investigation report, and the individual character of the
    offender. N.T., 7/1/15, at 3. Apart from boilerplate characterizations of the
    sentence as “harsh” and “excessive,” Appellant does not challenge the
    factual findings rendered by the court or allege that the court overlooked or
    ignored relevant factors pertaining to the discretionary aspects of his
    sentence. Significantly, Appellant points to no evidence that the trial court
    harbored any bias, ill will, or prejudice towards him. We also bear in mind
    that the court confronted a situation in which Appellant committed a second
    probation violation.     As the trial court determined, Appellant’s repeat
    violation   manifested   a   direct   affront   to   the   court’s   authority   and
    demonstrated Appellant’s inability or unwillingness to refrain from criminal
    activity, even while under judicial supervision.      In such circumstances, we
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    see no grounds for finding an abuse of discretion that allows us to disturb
    the trial court’s sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/29/2016
    -8-
    

Document Info

Docket Number: 1251 WDA 2015

Filed Date: 3/29/2016

Precedential Status: Precedential

Modified Date: 3/30/2016