Com. v. Flowers, M. , 149 A.3d 867 ( 2016 )

J-S50039-16
2016 PA Super 230COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL A. FLOWERS
Appellant No. 3 MDA 2016
Appeal from the Judgment of Sentence dated November 9, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP- 35 -CR- 0002248 -2011
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
OPINION BY SOLANO, J.: FILED OCTOBER 24, 2016
Appellant, Michael A. Flowers, appeals from the judgment of sentence
entered following the revocation of his placement in State Intermediate
Punishment,' which was imposed after he pled guilty to four counts of theft
by unlawful taking.2 For the reasons that follow, we vacate Appellant's
judgment of sentence and remand for re- sentencing.
The trial court summarized the factual and procedural history relevant
to this case as follows: Under Docket No. CP- 35 -CR- 0002248 -2011,
Appellant was charged with four counts of Theft by Unlawful Taking, in
* Former Justice specially assigned to the Superior Court.
' 61 Pa.C.S. §§ 4101 -4109.
2 18 Pa.C.S. § 3921.
J-S50039-16
violation of 18 Pa. C.S. § 3921(a), and four counts of Receiving Stolen
Property, in violation of 18 Pa.C.S. § 3925(a). These charges stemmed from
a July 15, 2011 report to Scranton Police in which the victim stated that her
son discovered a bag of her jewelry in Appellant's possession when Appellant
was in the hospital. Upon further investigation, Scranton Police discovered
additional jewelry owned by the victim that Appellant sold at a local pawn
shop. Trial Court Opinion, 3/1/16, at 1 -2.
On January 26, 2012, Appellant entered an open guilty plea to four
counts of Theft by Unlawful Taking in the Lackawanna County Drug
Treatment Court, which is designed to help certain illegal drug users receive
treatment, achieve drug abstinence, and ultimately have their cases
dismissed. At that time, the remaining charges against Appellant were
withdrawn.
On October 1, 2013, Appellant was terminated from the Lackawanna
County Treatment Court program, based upon the following violations:
5/9/2012: Missed color [a drug testing
requirement] and appointment
with Tony Villano, sanction[ed] to
one weekend in Lackawanna
County prison.
5/18/2012: Admitted to using suboxone and
heroin, placed in Lackawanna
County prison, assessed for
treatment.
9/29/2012: Missed color, week sanction.
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10/11/2012: Tested positive for suboxone,
placed in Lackawanna County
prison.
2/2/2013: Tested positive for opiates at
Salvation Army, placed in
Lackawanna County prison,
allowed re -entry to Salvation Army
program on 2- 25 -13.
6/26/2013: [Appellant] caught stealing from
Salvation Army, and admitted to
doing so; placed in Lackawanna
County prison.
Trial Court Opinion, 3/1/16, at 2 -3. Appellant's guilty plea was accepted and
sentencing was deferred pending referral to the Department of Corrections
for an evaluation and eligibility assessment to determine Appellant's
potential suitability for State Intermediate Punishment (SIP), a two -year
program designed to move offenders from confinement to in- patient
treatment, then to supervised out - patient treatment, and ultimately to
reintegration into the community. Id. at 3.
On May 13, 2014, the trial court received the Department of
Corrections' recommendation that Appellant would benefit from the SIP
program. Thereafter, on June 9, 2014, the court sentenced Appellant on
Count One to two years in the SIP program. It sentenced him to two years'
probation each on Counts Two, Three, and Four, to run consecutively, for an
aggregate sentence of two years in SIP followed by six years' probation.
The court also ordered restitution in the amount of $4,300.00. Id. at 3.
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On September 18, 2015, the court received notice that Appellant had
been expelled from the SIP program due to his failure to comply with
administrative and disciplinary guidelines, including repeated violations
regarding substance abuse during SIP. On November 9, 2015, the court
resentenced Appellant as follows: 2 -5 years' incarceration on Count One, 1-
3 years' incarceration plus two years' probation on Count Two, 1 -2 years'
incarceration plus two years' probation on Count Three, and two years'
probation on Count Four, for an aggregate sentence of 4 -10 years'
incarceration, followed by six years' probation On November 18, 2015,
Appellant filed a timely Motion for Reconsideration of Sentence, which the
court denied by an order dated December 1, 2015, and entered on
December 2, 2015. Id. at 3 -4. On December 28, 2015, Appellant filed a
Notice of Appeal to this Court.
On appeal, Appellant raises two sentencing issues for our review:
1. Whether the lower court failed to articulate sufficient
reasons or any reasons for the sentences imposed?
2. Whether the sentences imposed by the lower court
were excessive in light of all of the factors presented?
Appellant's Brief at 4. In an opinion, the sentencing court expressed the
view that, in light of Appellant's termination from SIP for repeated drug use
violations, the reasons for the sentences were clear and that it neither
imposed an illegal sentence nor abused its discretion. Trial Court Opinion,
3/1/16, at 10 -14.
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Jurisdiction
We begin by determining whether we have appellate jurisdiction.
Appellant challenges the discretionary aspects of his sentence. Our
jurisdiction to hear such a challenge is discretionary, and we may not
exercise our discretion to review such an issue unless we first determine
that: (1) the appeal is timely; (2) Appellant preserved his issue; (3)
Appellant's brief includes a concise statement of the reasons relied upon for
allowance of an appeal with respect to the discretionary aspects of his
sentences, as required by Rule 2119(f) of the Pennsylvania Rules of
Appellate Procedure; and (4) that concise statement raises a substantial
question that the sentences were inappropriate under the Sentencing Code.
Commonwealth v. Colon, 102 A.3d 1033, 1042 -43 (Pa. Super. 2014).3 If
3 The third and fourth of these requirements arise because the General
Assembly has provided that a challenge to the discretionary aspects of a
sentence is not appealable as of right. Commonwealth v. Edwards, 71
A.3d 323, 330 (Pa. Super. 2013). Instead, to invoke this Court's power to
review the discretionary aspects of a sentence, an appellant must petition
the Court to exercise discretionary jurisdiction under Section 9781(b) of the
Sentencing Code, 42 Pa. C.S. § 9781(b). Section 9781(b) provides: "The
defendant or the Commonwealth may file a petition for allowance of appeal
of the discretionary aspects of a sentence to the appellate court that
. . .
has initial jurisdiction for such appeals. Allowance of appeal may be granted
at the discretion of the appellate court where it appears that there is a
substantial question that the sentence imposed is not appropriate under this
chapter." The Supreme Court of Pennsylvania has held that a notice of
appeal operates as a petition for allowance of appeal under this section so
long as the appellant's brief then includes a statement under Rule 2119(f)
that sets forth sufficient reasons for this Court to exercise its discretionary
(Footnote Continued Next Page)
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the appeal satisfies each of these prerequisites, we may accept it and
proceed to the substantive merits of the case. Id.
The second, third, and fourth of these requirements are met here.
Appellant preserved his sentencing challenge in his November 18, 2015
petition for reconsideration of sentence, and he included a separate Rule
2119(f) concise statement in his appellate brief. See Appellant's Brief at 9-
10. In addition, Appellant has raised a substantial question for our review
by asserting that the trial court failed to state adequate reasons on the
record for Appellant's sentence. See Commonwealth v. Oliver, 693 A.2d
1342, 1347 -48 (Pa. Super. 1997) (claim that sentencing court failed to state
adequate reasons for sentence imposed presents substantial question
regarding appropriateness of sentence).
The pivotal question, then, is whether Appellant filed a timely notice of
appeal. Like most other appeals, an appeal from a sentence imposed after
revocation of intermediate punishment must be filed within 30 days after
imposition of the new sentence. See Pa. R. App. P. 903(a). In contrast to
other sentencing situations in which the filing of a post- sentence motion
extends the appeal period until after the motion has been decided, see Pa.
R. Crim. P. 720(a)(2), the filing of a motion to modify a sentence imposed
after revocation of parole or intermediate punishment does not toll the 30-
(Footnote Continued)
jurisdiction. See Commonwealth v. Tuladziecki, 522 A.2d 17, 18 -20 (Pa.
1987); see also Commonwealth v. Gambal, 561 A.2d 710 (Pa. 1988).
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day appeal period. Pa. R. Crim. P. 708(E).4 Here, Appellant was sentenced
on November 9, 2015. He moved for reconsideration of his sentence on
November 18, 2015, and the court denied that motion in an order dated
December 1, 2015, which was stamped as entered on December 2, 2015.
Appellant appealed on December 28, 2015, which was within 30 days of the
order denying his motion for reconsideration, but more than 30 days from
the November 9, 2015 order imposing Appellant's sentence. Accordingly,
Appellant's appeal was untimely.
Appellant argues, however, that he filed his appeal late because the
trial court provided him with incorrect information about the appeal deadline,
and that his late filing therefore should be excused because the
misinformation constituted a breakdown of the judicial process. See
Appellant's Brief at 6 -7, citing Commonwealth v. Parlante, 823 A.2d 927,
929 (Pa. Super. 2003), and Commonwealth v. Coolbaugh, 770 A.2d 788,
791 (Pa. Super. 2001). Notably, the Commonwealth agrees. See
4 A note to Rule 708 provides:
Under this rule, the mere filing of a motion to modify sentence
does not affect the running of the 30 -day period for filing a
timely notice of appeal. Any appeal must be filed within the 30-
day period unless the sentencing judge within 30 days of the
imposition of sentence expressly grants reconsideration or
vacates the sentence. See Commonwealth v. Coleman, 721
A.2d 798, 799, n.2 (Pa. Super. 1998). See also Pa.R.A.P.
1701(b)(3).
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Commonwealth's Brief at 3. After careful review of the record, we also
agree.
Rule 704(C)(3) of the Rules of Criminal Procedure provides that at the
time of sentencing, the sentencing judge "shall determine on the record that
the defendant has been advised of . . . the right to file a post- sentence
motion and to appeal, of the time within which the defendant must
exercise those rights, and of the right to assistance of counsel in the
preparation of the motion and appeal. [Emphasis added.]" The transcript of
the sentencing proceeding on November 9, 2015 discloses that the trial
court did not provide Appellant with information about when he could
appeal, but that the court instead presided while the following colloquy
occurred between Appellant and his trial counsel:
[DEFENSE COUNSEL]: Michael, you have a right to file
a reconsideration of sentence
within 10 days if you're not
satisfied with the sentence
imposed. You also have 30
days-
[APPELLANT] : How do I do that?
[DEFENSE COUNSEL]: You can let me know and I can
file that. You can do it in
writing.
[APPELLANT] : I'd like a reconsideration if
possible.
[DEFENSE COUNSEL]: Okay, and you also have a right
to file an appeal within 30 days
from the date of sentence or
from the disposition on the
reconsideration.
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[APPELLANT] : Okay.
[DEFENSE COUNSEL]: Okay, I'll file that for you.
[APPELLANT]: Yes. Thank you.
N.T., 11/9/15, at 3 -4 (emphasis added). Counsel's statement that Appellant
could file his appeal "within 30 days ... from the disposition on the [motion
for] reconsideration" was erroneous, but the trial court did not correct that
statement. The court therefore did not assure that Appellant had been
properly advised of the correct appeal deadline pursuant to Rule 704(C)(3).
Moreover, when the trial court denied Appellant's motion for
reconsideration of his sentence in its December 1, 2015 order, the order
stated, "You have the right to appeal this decision but you must do so within
thirty (30) days of the date of this Order." That statement in the court's
order dated December 1, 2015 was erroneous. The final order from which
an appeal may be taken in a criminal case is the judgment of sentence, not
an order disposing of a post- sentence motion. Commonwealth v. Harper,
890 A.2d 1078, 1081 (Pa. Super. 2006). Even when an order disposing of a
post- sentence motion extends the 30 -day appeal period under Criminal Rule
720, the appeal is still from the order imposing sentence, because a "direct
appeal in a criminal proceeding lies from the judgment of sentence." See
Commonwealth v. Preacher, 827 A.2d 1235, 1236 n.1 (Pa. Super. 2003).
Here, under Rule 708(E), there was no extension of the 30 days. The
order's statement that Appellant could appeal within 30 days of its
December 1, 2015 order was incorrect.
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In Parlante, the trial court imposed a new sentence after revoking the
defendant's parole, and, when doing so, told the defendant that she could
appeal 30 days after denial of a post- sentence motion. 823 A.2d at 929.
As a result, the defendant did not file her appeal until after her motion was
denied, by which time more than 30 days had expired from the imposition of
sentence. We declined to quash the appeal, explaining that the late appeal
"resulted from the trial court's misstatement of the appeal period, which
operated as a 'breakdown in the court's operation. ' Id., quoting
Coolbaugh, 770 A.2d at 791. The same is true here. The trial court's error
in failing to correct the erroneous information provided to Appellant at the
time of sentencing, despite its obligation to assure that correct information
was provided under Rule 704(C), coupled with the further error in the
information provided in the court's December 1, 2015 order, constituted a
"breakdown in the court's operation" that excuses Appellant's late filing of
his appeal. We therefore decline to quash the appeal as untimely.
Because Appellant has met the threshold requirements for our exercise
of jurisdiction, we accept the appeal and proceed to the merits.
The Merits
Preliminarily, we recognize - as do the trial court and Commonwealth
- that Appellant's SIP sentence was analogous to a sentence of probation.
See Trial Court Opinion at 10; Commonwealth's Brief at 6 (both citing
Commonwealth v. Kuykendall, 2 A.3d 559, 563 -564 (Pa. Super. 2010)).
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We review a sentence imposed following a revocation of probation for an
error of law or an abuse of discretion. Colon, 102 A.3d at 1041.
Accordingly, we apply that same standard in reviewing revocation of
Appellant's SIP sentence. See Kuykendall, 2 A.3d at 563 (dictum).5 "An
abuse of discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused."
Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc)
(quoted citations omitted).
As noted, SIP is a two -year program designed to benefit certain
criminal offenders with drug and alcohol problems. Treatment in the
program "is a privilege granted at the discretion of the sentencing court."
Kuykendall, 2 A.3d at 565. During the two -year program, the sentenced
individual progresses from incarceration to in- patient drug treatment, out-
patient treatment and supervision, and, finally, reintegration into the
5 The focus in Kuykendall was on whether revocation of SIP and
subsequent resentencing implicate double jeopardy. We held that they did
not, since the revocation is not a second punishment for the original
conviction, but rather an integral element of the original conditional SIP
sentence. The question in this case, concerning the effect of a sentencing
court's violation of Criminal Rule 708(D)(2), requiring statement on the
record of specific reasons for imposition of a revocation sentence, was not at
issue in Kuykendall and does not appear to have yet been addressed in a
published opinion.
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community. 61 Pa.C.S. § 4105(b); see Kuykendall, 2 A.3d at 560.6 The
program gives the Department of Corrections "maximum flexibility" to
6
Section 4105(b) provides:
Notwithstanding any credit to which the defendant may be
entitled under 42 Pa.C.S. § 9760 (relating to credit for
time served), the duration of the drug offender treatment
program shall be 24 months and shall include the
following:
(1) A period in a State correctional institution of not less
than seven months. This period shall include:
(i) The time during which the defendants are being
evaluated by the department under section 4104(b)
(relating to referral to State intermediate punishment
program).
(ii) Following evaluation under subparagraph (i), not
less than four months shall be in an institutional
therapeutic community.
(2) A period of treatment in a community -based
therapeutic community of at least two months.
(3) A period of at least six -months' treatment through an
outpatient addiction treatment facility. During the
outpatient addiction treatment period of the drug offender
treatment program, the participant may be housed in a
community corrections center or group home or placed in
an approved transitional residence. The participant must
comply with any conditions established by the department
regardless of where the participant resides during the
outpatient addiction treatment portion of the drug offender
treatment program.
(4) A period of supervised reintegration into the
community for the balance of the drug offender treatment
program, during which the participant shall continue to be
(Footnote Continued Next Page)
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"transfer a participant back and forth between less restrictive and more
restrictive settings." 61 Pa.C.S. § 4105(c)(2).7
Under Section 4105(f)(3), "A participant may be expelled from the
drug offender treatment program at any time in accordance with guidelines
established by the department, including failure to comply with
administrative or disciplinary procedures or requirements set forth by the
department." 61 Pa. C.S. § 4105(f)(3). Section 9774 of the Sentencing
Code provides that if a SIP participant is expelled, the trial court may revoke
a participant's SIP sentence after a hearing. At that point, "the sentencing
alternatives available to the court shall be the same as the alternatives
available at the time of initial sentencing." 42 Pa.C.S. § 9774(c).
Appellant concedes that he was expelled from the SIP program. N.T.,
11/9/15, at 2. He does not challenge the trial court's exercise of its
discretion to revoke his participation in the program. Cf. Commonwealth
v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (revocation of parole is a
(Footnote Continued)
supervised by the department and comply with any
conditions imposed by the department.
7
Section 4105(c)(1) states: "Consistent with the minimum time
requirements set forth in subsection (b), the department may transfer, at its
discretion, a participant between a State correctional institution, an
institutional therapeutic community, a community -based therapeutic
community, an outpatient addiction treatment program and an approved
transitional residence. The department may also transfer a participant back
and forth between less restrictive and more restrictive settings based upon
the participant's progress or regression in treatment or for medical,
disciplinary or other administrative reasons."
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matter committed to the sound discretion of the trial court, and that court's
decision will not be disturbed on appeal in the absence of an error of law or
an abuse of discretion). Instead, Appellant limits his challenge to the trial
court's imposition of new sentences upon revocation of his SIP program
participation. In particular, he asserts that the trial court abused its
discretion when it failed to state its reasons for Appellant's sentences on the
record in violation of Pennsylvania Rule of Criminal Procedure 708, which
states, "[t]he judge shall state on the record the reasons for the sentence
imposed." Pa.R.Crim.P. 708(D)(2).
Appellant notes that, although he was expelled from SIP, he did not
commit a new crime. Nevertheless, he was given lengthy new sentences on
each count which exceeded the benchmarks in the sentencing guidelines.
He contends that his new sentences were "punishment for his failure to
complete SIP." Appellant's Brief at 14. He argues:
The Appellant suffers from drug addiction issues. He asserts
that to impose lengthier sentences upon being expelled from SIP
than what was originally imposed is a punishment for his failure
to complete the program. He contends that the new sentences
were not warranted by the facts surrounding the violations or by
the necessity to protect the public. He maintains that the
sentences imposed are inconsistent with the sentencing
guidelines, contrary to the fundamental norms of the sentencing
process and fail to consider his personal life situation.
Id. at 14 -15. Appellant asserts that there is nothing in the record from his
sentencing proceeding to allow him to determine whether the sentences
were based upon accurate, sufficient, and proper information, and he argues
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that the current record is not sufficient for this Court to determine whether
the trial court abused its discretion when it imposed the sentences. He
therefore asks that this matter be remanded for the trial court to conduct an
appropriate review of the facts surrounding his participation in the SIP
program; determine the nature and circumstances of his violations, his
participation history, and the levels of the program he completed; and set
forth the findings upon which his new sentences were based. Appellant's
Brief at 11 -12.
In response, the Commonwealth acknowledges that the trial court is
required to articulate sufficient reasons on the record for a sentence
imposed, but avers that the trial court in this instance gave "adequate"
reasons for its sentences by referencing Appellant's violation of his SIP
sentence. The Commonwealth also refers to the trial court's Rule 1925(a)
opinion, in which the court explained its reasons for having imposed the
sentences at issue. Commonwealth's Brief at 5 -7. In that Rule 1925(a)
opinion, the trial court acknowledged the mandate to state on the record the
reasons for the sentences imposed and maintained that it satisfied the
requirement to do so. Trial Court Opinion, 3/1/16, at 9. The trial court
explained:
This Court was informed of both the sentencing guidelines
and . Memoranda and Recommendations of the
. .
Lackawanna County Adult Probation and Parole
Department. Moreover, for the instant matter, the
Appellant was before the Court for sentencing following his
termination from State Intermediate Punishment, the
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sentence he received after his termination from the
Lackawanna County Drug Treatment Court Program. The
violation is clearly the reason for the revocation and
sentence. Moreover, Appellant has been before this Court
and under its supervision for a considerable length of time.
In addition to this Court's observations, the record is
replete with information regarding the Appellant's
character and history. Furthermore, Appellant was
terminated for violations in both Treatment Court and
State Intermediate Punishment, demonstrating Appellant's
disrespect for this Court's authority and the repeated
assistance that has been provided.
Id. at 10.
The Sentencing Code governs this issue. The Code provides that upon
revocation of SIP, a sentencing court has the same sentencing alternatives
that were available to it at the time of initial sentencing. 42 Pa.C.S. §
9774(c). But the Code also mandates that when an offender is resentenced
following revocation of State Intermediate Punishment, 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."
See Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa. Super. 2013)
(en banc) (quoting 42 Pa. C.S. § 9721(b)).8 Appellant's drug treatment
8
Section 9721(b) provides: "In every case in which the court imposes a
sentence for a felony or misdemeanor, modifies a sentence, resentences an
offender following revocation of probation, county intermediate punishment
or State intermediate punishment or resentences following remand, 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.... Failure to comply shall be grounds for vacating the sentence or
resentence and resentencing the defendant."
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program was a State Intermediate Punishment program, 61 Pa. C.S. §
4105(a), and this Code requirement therefore is directly applicable here.
Failure to comply with it "shall be grounds for vacating the sentence or
resentence and resentencing the defendant." Cartrette, 83 A.3d at 1041;
see also Commonwealth v. Rudy, 450 A.2d 102 (Pa. Super. 1982) (in the
absence of an explanation, remand for re- sentencing and articulation of the
reasons for a new sentence imposed after the revocation is warranted).
Insofar as is relevant here, the requirement that a trial court explain
its sentence under Section 9721 and corresponding Criminal Rule 708 has
two components. First, the court must state its reasons on the record at the
time the sentence is imposed. See Commonwealth v. Riggins, 377 A.2d
140, 143 (Pa. 1977); Commonwealth v. Beasley, 570 A.2d 1336, 1338
(Pa. Super. 1990) ( "A sentencing court has a statutory duty to disclose in
open court at the time of sentencing a statement of reasons for the sentence
imposed "). Requiring the sentencing court to state its reasons at that time
provides a procedural mechanism for the aggrieved party both to attempt to
rebut the court's explanation and inclination before the sentencing
proceeding ends, and to identify and frame substantive claims for post -
sentence motions or appeal. Commonwealth v. Reaves, 923 A.2d 1119,
1129 (Pa. 2007). Therefore, contrary to the Commonwealth's suggestion in
this case, it is not sufficient for the trial court to state its reasons in a post -
sentence Rule 1925(a) opinion. See Commonwealth v. Giles, 449 A.2d
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641 (Pa. Super. 1982) (rejecting argument that the failure to state reasons
at the time of sentencing can be remedied by stating them in a later
opinion); see also Commonwealth v. Harris, 457 A.2d 572, 574 -575 (Pa.
Super. 1983). The reasons must be given "in open court at the time of
sentencing." 42 Pa. C.S. § 9721(b).
Second, although "[a] sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence, ... 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. Crump, 995 A.2d 1280,
1283 (Pa. Super. 2010). A "discourse on the court's sentencing philosophy,
as it applies to the defendant before it, is not required." Commonwealth v.
Hill, 629 A.2d 949, 953 (Pa. Super. 1993). But "the reasons must reflect
the judge's consideration of the sentencing code, the circumstances of the
offense and the character of the offender." Beasley, 570 A.2d at 1338; see
also Hill, 629 A.2d at 953 ( "Simply put, the sentencing judge must state his
or her reasons for the sentence imposed ").
Mindful of these precepts, we turn to the record before us. The notes
of testimony from the November 9, 2015 SIP revocation hearing read as
follows:
THE COURT: Mr. Flowers? Hello?
[APPELLANT]: Hello, Your Honor, Michael
Flowers.
THE COURT: Michael, how are you?
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[APPELLANT] : I'm well. I've been better.
THE COURT: Okay, I received back a letter
from the Department of
Corrections indicating that you
have been terminated from the
program.
[APPELLANT] : Yes, sir.
THE COURT: Attorney [for Appellant]?
[DEFENSE COUNSEL]: Judge, I reviewed the file and it
appears to me that [Appellant's]
prior record score is rather low.
The standard ranges for each
offense would be RS to 1. He
does have 1278 days credit for
this offense. He is ready to max
out in December, so I would
just ask for time served.
THE COURT: [Appellant], anything you'd like
to say before I impose
sentence?
[APPELLANT] : Your Honor, the last four years
of my life I've been on two
different programs, I've learned
a lot about myself. I've learned
a lot about addiction. You
know, I know that I'm a good
person, I just have a bad
problem. Really I just want to
thank you for the opportunities
that you've given me. I know
that I haven't really shown
through them [sic], but I have
learned a lot. So it wasn't a
complete waste.
THE COURT: All right, Michael. In regard to
11 CR 2248, Count 1, the court
will be sentencing you to two to
five years on Count 1. One to
three years plus two years'
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probation on Count 2. Count 3,
one to two years plus two years'
probation; and on Count four,
two years' probation. That will
be an aggregate of 4 to 10
years plus 6 years' probation.
You must follow through on all
your aftercare programs and
everything required on parole.
Thank you. [Defense Counsel ?]
N.T., 11/9/15, at 2 -3. Thereafter followed the colloquy between Appellant
and defense counsel about post -trial proceedings that is quoted earlier in
this opinion.
The notes of testimony show that at the time of sentencing, the trial
court failed to state "on the record the reasons for the sentence imposed," in
contravention of Section 9721(b) of the Sentencing Code and Criminal Rule
708(D)(2). The court may have believed that its reasons seemed apparent,
and we note that defense counsel did not object. Nevertheless, the court's
failure to comply with the requirements set forth in the rule and statute at
issue is reversible error. Accordingly, we are constrained to remand this
matter to the trial court for re- sentencing, at which time the court shall
comply with Criminal Rule 708(D)(2) and articulate adequate reasons for the
new sentence. Because our disposition renders Appellant's second issue, in
which he asserts that his sentence is excessive, as yet unripe, we decline to
address it.
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Judgment of sentence vacated. Case remanded for re- sentencing and
articulation of the reasons for the sentence imposed. Jurisdiction
relinquished.
Judgment Entered.
J: sephD. Seletyn,
Prothonotary
Date: 10/24/2016
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