Com. v. Bartlett, P. ( 2016 )

J-S55039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PARIS BARTLETT,
Appellant No. 804 EDA 2015
Appeal from the Judgment of Sentence September 20, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0808341-2006,
CP-51-CR-1301845-2006
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 12, 2016
Appellant Paris Bartlett appeals from the judgment of sentence
entered by the Court of Common Pleas of Philadelphia County after
Appellant’s probation was revoked. Appellant claims that the lower court
erred in failing to advise him of his right to allocution and the consequences
of violating his probation. In addition, he raises several challenges to the
discretionary aspects of his sentence. After careful review, we affirm.
On September 19, 2003, Appellant was charged with identify theft,
forgery, and related offenses (CP-51-CR-0808341-2006). On March 17,
2005, Appellant was charged with burglary and related offenses (CP-51-CR-
1301845-2006). On April 19, 2007, Appellant entered guilty pleas on both
dockets before the Honorable Thomas Dempsey, who sentenced Appellant to
*Former Justice specially assigned to the Superior Court.
J-S55039-16
two concurrent terms of 11½ to 23 months incarceration followed by five
years probation.
Appellant’s probation was first revoked on November 14, 2008.
Appellant appeared for a violation of probation (VOP) hearing before Judge
Dempsey, who sentenced Appellant to time served to twenty-three months
imprisonment followed by three years probation.
Appellant’s probation was revoked a second time after his June 12,
2009 arrest where officers observed Appellant participating in a suspicious
hand-to-hand transaction and discovered Appellant in possession of
marijuana and a loaded firearm. After a Daisey Kates hearing1 held on
September 20, 2012, the Honorable Diana Anhalt found Appellant in
violation of his probation for possessing the drugs and firearm as well as his
failure to pay restitution, costs, fines, and fees in the other cases. Judge
Anhalt sentenced Appellant to consecutive terms of two to five years
imprisonment on docket at CP-51-CR-0808341-2006 and three to ten years
incarceration on the docket at CP-51-CR-1301845-2006.
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1
“The focus of a probation violation hearing, even though prompted by a
subsequent arrest, is whether the conduct of the probationer indicates that
the probation has proven to be an effective vehicle to accomplish
rehabilitation and a sufficient deterrent against future antisocial conduct.”
Commonwealth v. Kates, 452 Pa. 102, 114-15, 305 A.2d 701, 708 (Pa.
1973) (finding no statutory or constitutional bar to holding VOP hearing prior
to trial for criminal charges based on same activities which gave rise to
alleged probation violation).
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On March 12, 2013, Appellant filed a timely petition under the Post
Conviction Relief Act (“PCRA”).2 The PCRA court appointed counsel, who
filed an amended petition seeking the reinstatement of Appellant’s direct
appellate rights. On March 12, 2015, the PCRA court granted the requested
relief. This timely appeal followed. Appellant complied with the lower
court’s direction to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raised the following issues in his 1925(b) statement:
I. The Court was in error in conducting the sentencing
hearing following [Appellant’s] violation hearing for the
following reasons:
a. The Court never advised [Appellant] at his original
guilty plea hearing that he could receive a maximum
statutory sentence if he violated probation, thus his
plea agreement was abrogated;
b. The Court never advised [Appellant] of his right to
allocution at the violation hearing;
c. The Court never ordered a pre[-]sentence investigation
report following his violation;
d. The Court never issued a contemporaneous statement
as to why the sentence was outside the guidelines.
1925(b) statement, 4/28/15, at 1-2.
Appellant first claims that the original trial court judge who accepted
his consolidated plea agreement in April 2007 erred in not advising him of
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2
42 Pa.C.S. §§ 9541-9546.
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the potential sentence he faced upon the violation of his probation.
Appellant cannot ask to withdraw his guilty plea after a violation of his
probation when he never contested the validity of the original plea or the
plea colloquies when they were entered. Commonwealth v. Cartrette, 83
A.3d 1030, 1035-36 (Pa. Super. 2013) (stating that the “voluntariness of a
guilty plea cannot be contested following the revocation of probation”).
Even if this claim was properly preserved before this Court, we note
that the record contains Appellant’s signed written plea colloquy forms,3
which clearly shows that Appellant acknowledged that he understood the
maximum penalties he faced in each case. Appellant cannot now disavow
the representations he made to the lower court when he entered his plea.
See Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015)
(providing that a defendant is bound by statements made in a written plea
colloquy).
In his remaining claims, Appellant argues that the lower court erred in
failing to advise him of his right to allocution, order a pre-sentence report, or
place on the record its reasons for imposing Appellant’s sentence. As
Appellant did not preserve any of the issues by objecting at sentencing or in
a post-sentence motion, we find all three issues waived on appeal. See
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3
The record does not contain transcripts of Appellant’s guilty plea hearing.
We caution counsel that it is the appellant's burden to ensure that the
certified record is complete. Pa.R.A.P. 1921.
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Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”); Commonwealth v. Hardy,
99 A.3d 577, 579 (Pa. Super. 2014) (“in order to preserve a claim of error
pertaining to the right of allocution, the defendant must raise the claim
before the trial court at the time of sentencing or in a post-sentence motion,
or suffer waiver of the claim on appeal”). Commonwealth v. Taylor, ---
A.3d ---, 2016 PA Super 83 (Pa. Super. filed Apr. 11, 2016) (“[o]bjections to
the discretionary aspects of a sentence are generally waived if they are not
raised at the sentencing hearing or in a motion to modify the sentence
imposed”).
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2016
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