Com. v. Potts, A. ( 2016 )

J-S69039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON A. POTTS,
Appellant No. 2017 MDA 2015
Appeal from the Judgment of Sentence July 17, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0004251-2013
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 14, 2016
Appellant, Aaron A. Potts, appeals from the judgment of sentence
imposed following revocation of his parole and probation. We affirm.
The trial court aptly summarized the procedural history of this case as
follows:
On March 10, 2014, Appellant . . . pled guilty [pursuant to a
negotiated plea agreement] to one count of corruption of minors,
a first degree misdemeanor.1 The charges were filed in
connection with inappropriate behavior of a sexual nature with a
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.[A.] [§] 6301(a)(1)(i). [Appellant] had been charged with three
additional crimes: Unlawful Contact With Minor—Sexual Offense (18
Pa.C.S.[A.] §[]6318(a)(1)), Indecent Assault of Person Less Than 16 Years
of Age (18 Pa.C.S.[A.] §[]3126(a)(8)) and Corruption of Minors—Def. Age
18 or Above (18 Pa.C.S.[A.] §[ 6301(a)(ii)).] The second corruption of
minors charge was dismissed at the preliminary hearing and the remaining
charges were withdrawn at the guilty plea/sentencing hearing.
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minor child. On that same day, [the] court sentenced him to a
split sentence, as follows:
1. Phase One—six (6) to twenty-three (23) months [of]
incarceration in Dauphin County Prison;
2. Phase Two—thirty-six (36) months of probation
consecutive to Phase One.
Appellant was made eligible for work release[2] and subject to
several conditions including: no contact with the victim and her
family; no contact with minor females under the age of eighteen
(18); no employment or volunteer work with female children; a
curfew while on probation; and, a sexual offender evaluation
[and treatment]. Appellant was ordered to report to the
Dauphin County Work Release Center on April 10, 2014 by 10:00
a.m.
Appellant failed to report on April 10, 2014, so a warrant
was issued for his arrest. Law enforcement executed the
warrant when he was discovered and committed him to the Work
Release Center. On April 1, 2015, Appellant was paroled and
commenced his term of probationary supervision. On June 9,
2015, Dauphin County Adult Probation submitted a request for a
revocation hearing alleging that Appellant had violated several
parole rules. Following a revocation hearing on July 17, 2015,
Appellant’s parole and probation were revoked. Based upon the
revocation, [the] court sentenced him to a nine (9) month term
of incarceration which represented the remaining back time on
Phase One of his original sentence. Phase Two was also revoked
and he was sentenced to an eighteen (18) to thirty-six (36)
month term of incarceration consecutive to Phase One. Fourteen
months of time credit were applied. Appellant was also ordered
to participate in sex offender treatment and all of the no contact
and curfew conditions of his original sentence were reimposed.
A post-sentence motion was filed on July 23, 2015,
contending that Appellant’s sentence upon revocation was
excessive and unreasonable as he was sentenced to the
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2
Work release rules precluded Appellant from possessing a cell phone. (See
N.T. Revocation Hearing, 7/17/15, at 8).
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maximum punishment allowable for a first degree misdemeanor.
Upon consideration of Appellant’s motion and the
Commonwealth’s response, [the] court denied relief by order
dated August 10, 2015.
On August 19, 2015, Appellant filed a notice of appeal to
the Pennsylvania Superior Court. The appeal was subsequently
quashed sua sponte by the Superior Court as the notice of
appeal had been untimely filed.
Following remand of the record to the trial court, Appellant
filed a Post-Conviction Relief Act Petition [See 42 Pa.C.S.A. §§
9541-9546,] requesting reinstatement of his appeal rights nunc
pro tunc. The Commonwealth did not oppose his petition and
upon review, [the] court granted his relief, reinstating his
appellate rights. Appellant was also told that he had thirty (30)
days in which to file a notice of appeal should he choose to do
so. Appellant timely filed a notice of appeal on November 17,
2015.
In compliance with [the] court’s order, on November 24,
2015, Appellant timely filed a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b)[.] . . .
(Trial Court Opinion, 2/03/16, at 1-3) (footnote and some capitalization
omitted). The trial court filed its opinion on February 3, 2016. See
Pa.R.A.P. 1925(a).
On appeal, Appellant raises one issue for our review:
Was not the imposition of a probation violation sentence of [one
and one-half] to [three] years[’] incarceration, consecutive to a
[nine]-month imposition of back-time for violating parole, clearly
unreasonable, so manifestly excessive as to constitute an abuse
of discretion, and inconsistent with the protection of the public,
the gravity of the offenses, and [Appellant’s] rehabilitative needs
where the revocation conduct involved technical violations of
parole/probation that occurred soon after [Appellant’s] release
on parole and where the court based its revocation sentence in
part on conduct that occurred during [Appellant’s] incarceration
prior to his being paroled?
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(Appellant’s Brief, at 4) (some capitalization omitted).
Appellant argues the trial court abused its discretion in imposing an
unreasonable and excessive sentence of total confinement, given that the
revocation was based only on technical violations, and not a new offense.
(See id. at 12-13, 18). Appellant maintains that, in imposing a term of
incarceration, the court failed to consider factors that bear upon sentencing,
including his need for rehabilitation and treatment. (See id. at 12, 19).
As an initial matter, we observe that Appellant’s issue challenges the
discretionary aspects of his sentence.
. . . [A] challenge to the discretionary aspects of a sentence is
not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Before we reach the merits of this [issue], we
must engage in a four part analysis to determine:
(1) whether the appeal is timely; (2) whether
Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
substantial question that the sentence is appropriate
under the sentencing code. The third and fourth of
these requirements arise because Appellant’s attack
on his sentence is not an appeal as of right. Rather,
he must petition this Court, in his concise statement
of reasons, to grant consideration of his appeal on
the grounds that there is a substantial question.
Finally, if the appeal satisfies each of these four
requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015) (case citations omitted).
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Instantly, Appellant preserved his claim by filing a post-sentence
motion, filed a timely notice of appeal, and included in his brief a concise
statement pursuant to Pa.R.A.P. 2119(f). Furthermore, Appellant’s claim
that the trial court inappropriately sentenced him to a term of total
confinement based on technical violations raises a substantial question for
our review. See Colon, supra at 1043. Accordingly, we will review his
claim on its merits.
Our standard of review is well-settled. We have explained:
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.
An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its
discretion unless the record discloses that the
judgment exercised was manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will.
In determining whether a sentence is
manifestly excessive, the appellate court must give
great weight to the sentencing court’s discretion, as
he or she is in the best position to measure factors
such as the nature of the crime, the defendant’s
character, and the defendant’s display of remorse,
defiance, or indifference.
Upon revoking probation, a sentencing court may choose
from any of the sentencing options that existed at the time of
the original sentencing, including incarceration. 42 Pa.C.S.A. §
9771(b). [U]pon 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.
However, 42 Pa.C.S.A. § 9771(c) provides that once probation
has been revoked, a sentence of total confinement may only be
imposed if any of the following conditions exist:
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(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.
42 Pa.C.S.A. § 9771(c).
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 [and] [f]ailure to comply with these provisions
shall be grounds for vacating the sentence or resentence and
resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court
need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing
court’s consideration of the facts of the crime and character of
the offender.
Id. at 1043–44 (case citations and quotation marks omitted).
Here, at the revocation hearing, the trial court heard from Dauphin
County Probation Officer Doug Lauver, who described Appellant’s extensive
history with the department. (See N.T. Revocation Hearing, at 2-6). Mr.
Lauver testified regarding Appellant’s initial failure to report to work release,
and informed the court of Appellant’s multiple employment terminations
once he did report, due to verbal altercations with his employers. (See id.
at 3-4). Mr. Lauver also reported Appellant’s failure to pay fines; his
possession of a cell phone in the work release center containing numerous
pornographic photographs; his refusal to provide the probation department
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with his correct address; his failure to participate in court-ordered evaluation
and treatment; and his belligerent behavior towards probation officers and
work release staff. (See id. at 2-6). The court also heard from Appellant,
who provided copious excuses for his actions before eventually taking
responsibility for his failure to provide his correct address and to pay fines,
and for his aggressive behavior, which he claimed was provoked by others.
(See id. at 9-12).
In its Rule 1925(a) opinion, the court emphasized that the
Commonwealth gave Appellant a generous plea deal, which included the
withdrawal of two charges, and it explained its reasons for the sentence of
total confinement as follows:
. . . [T]he record is replete with support for the finding that
the sentence imposed was proper. Appellant’s possession of
pornographic materials on his cellphone combined with his
resistance to treatment and supervision and his failure to
undergo a sexual offender evaluation amounts to a likelihood
that, unless incarcerated, he would commit another crime.
Additionally, the record also shows that Appellant has flouted the
court’s authority since his original sentencing in March of 2014.
Finally, Appellant made an excuse for every alleged violation
until pressed by the court, at which time he admitted culpability
for failing to pay fines, his overt behavior to work release staff
and his [probation officer], and for being deceptive with respect
to providing an address. This court submits that the
incarceration sentence handed down is essential to vindicate our
authority.
. . . [T]his court submits that in light of Appellant’s
continuing pattern of defiant and aggressive behavior along with
his resistance to treatment and failure to take any blame for his
circumstance, discretion was properly exercised in the re-
sentencing of Appellant following the revocation of
parole/probation.
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(Trial Ct. Op., at 9-10; see id. at 8) (citation and some capitalization
omitted).
Upon review, we discern no abuse of discretion in the trial court’s
determination that Appellant’s sentence of imprisonment was essential to
vindicate the authority of the court, and that his pattern of noncompliant
conduct, including his failure to participate in sexual offender evaluation and
treatment, indicated a likelihood that he will commit another crime if he is
not imprisoned. See 42 Pa.C.S.A. § 9771(c)(2), (3); Colon, supra at
1043–44.3 Accordingly, we affirm the judgment of sentence.
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3
We note that as part of his issue on appeal, Appellant asserts the court
improperly based its revocation sentence in part on his conduct before he
was paroled, and erroneously conflated his pre-parole and post-parole
conduct. (See Appellant’s Brief, at 11, 21-22). To the extent Appellant
seeks to raise this claim as a distinct issue, we agree with the
Commonwealth that it is waived for his failure to include it in his Rule
1925(b) statement, and we note that the trial court did not address this
issue. (See Commonwealth’s Brief, at 8, 15-17; Trial Ct. Op. at 6-10); see
also Commonwealth v. Treiber, 121 A.3d 435, 475 (Pa. 2015) (“These
issues are waived because appellant did not state them with sufficient
specificity in his Concise Statement of Matters Complained of on Appeal.”)
(citing Pa.R.A.P. 1925(b)(4)(vii)). Moreover, “[u]nder Pennsylvania law, an
order of probation can be changed or revoked if, at any time before the
defendant has completed the maximum period of probation, or before he has
begun service of his probation the defendant commits offenses or otherwise
demonstrates he is unworthy of probation.” Commonwealth v. Mitchell,
955 A.2d 433, 435 n.2 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa.
2009) (citations and internal quotation marks omitted). Thus, Appellant’s
argument would merit no relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2016
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