Com. v. Ward, W. ( 2018 )

J-S48029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM WARD :
:
Appellant : No. 2284 EDA 2017
Appeal from the Judgment of Sentence June 12, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013019-2008
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 05, 2018
William Ward (Appellant) appeals from the judgment of sentence
imposed following the revocation of his probation. Upon review, we affirm.
The trial court summarized the factual and procedural background as
follows:
On December 14, 2009, [Appellant] entered into an open
guilty plea to ethnic intimidation, graded as a felony of the first
degree, and conspiracy to commit aggravated assault, graded as
a felony of the second degree. A presentence sentence report was
ordered and sentencing was deferred several times until February
7, 2011.
[The trial court] sentenced [Appellant] to 11½ to 23 months
county incarceration, plus five years reporting probation on both
counts to run concurrent. In addition, this sentence was to run
concurrent with the sentence [Appellant] was serving for Judge
Bronson, with credit for time served. As conditions of sentence,
[the trial court] ordered [Appellant] to complete anger
management treatment, undergo random urinalysis, obtain a
GED, complete job training, seek and maintain employment, stay
out of trouble with the law, stay away from the complainant and
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* Retired Senior Judge assigned to the Superior Court.
J-S48029-18
his wife, and pay mandatory court costs and supervision fees at a
rate of $40 per month. No appeal was filed.
While serving probation, [Appellant] was arrested on April
29, 2016 and charged with possession of a controlled substance
with intent to deliver (PWID) and conspiracy. [Appellant] was
sentenced on that case on May 22, 2017 by Judge McCaffery to
1½ to 3 years state incarceration, plus 4 years reporting
probation.
A violation of probation hearing was held on June 12, 2017
. . . . [The trial court] read and incorporated the report of the
Probation Department, dated 5/25/2017, into the record. The
[c]ourt noted that at the time of arrest, [Appellant] was employed
but had not paid court costs or completed vocational training or
anger management treatment, which was necessitated by the
nature of the ethnic intimidation. Defense Counsel stated he
believed that [Appellant] was doing well on probation prior to the
new arrest, requested the [c]ourt “take everything into
consideration” and impose a sentence concurrent with the new
sentence imposed by Judge McCaffery.
The Commonwealth then elaborated on facts of the new
conviction that formed the basis for this direct violation. The
underlying offense was possession with intent to deliver $16,000
worth of narcotics. The Commonwealth argued that the amount
of drugs indicated that this was neither a part time job nor
supplemental income for [Appellant]. [The] Commonwealth also
argued that the amount of drugs suggested that [Appellant] did
not enter this activity recently and that [Appellant] was carrying
out this activity regularly while on [the c]ourt’s probation. The
Commonwealth recommended the [c]ourt punish the ethnic
intimidation more harshly than the PWID due to the higher rate of
victimization. As a result, the Commonwealth recommended a
sentence of 2 to 4 years’ incarceration plus five years of probation.
This [c]ourt asked [Appellant] to recall that when he pled
guilty, the maximum possible sentence was 30 years in jail. The
[c]ourt noted that [Appellant] served two years, so there were 28
years remaining for which [Appellant] could be sentenced.
[Appellant] responded that he knew he made a mistake and that
he lost dearly with family and kids. He stated he hoped the [c]ourt
would not sentence him to 28 years. [Appellant] did not express
remorse for any of his actions.
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This [c]ourt found [Appellant] in both direct and technical
violation of probation. This [c]ourt revoked probation and
imposed a new sentence of five to ten years in state prison on the
ethnic intimidation charge, plus five years reporting probation to
run consecutive to parole. This sentence was to run consecutive
to Judge McCaffery’s sentence. On the conspiracy to commit
aggravated assault charge, the [c]ourt imposed a new sentence
of five years reporting probation, which would run concurrent to
the probation for ethnic intimidation. As conditions of the
sentence, [Appellant] was ordered to complete anger
management treatment, job training, parenting classes, undergo
random urinalysis, and pay $40 a month in costs, finds, and
supervision fees.
[Appellant filed an unsuccessful motion for reconsideration
of his sentence on June 22, 2017.] On July 12, 2017, [Appellant]
filed a Notice of Appeal to the Superior Court. On August 2, 2017,
upon receipt of the notes of testimony, this [c]ourt ordered
appellate counsel to file a Concise Statement of Errors pursuant
to Pa.R.A.P. 1925(b). Appellate counsel did so on August 24,
2017.
Trial Court Opinion, 9/22/17, at 1-4.
On appeal, Appellant presents two questions for our review:
1. Was not the [trial] court’s imposition of a five (5) to ten (10)
year sentence of incarceration for violations of probation an
abuse of discretion where the court violated the requirements
of 42 Pa.C.S.[A]. § 9721(b) of the Sentencing Code where the
court failed to give individualized consideration to [A]ppellant’s
personal history, rehabilitative needs or background, and
without explaining how, as a matter of law, this sentence was
the least stringent one adequate to protect the community and
to serve the rehabilitative needs of the [A]ppellant?
2. Did not the trial court err and abuse its discretion by sentencing
[Appellant] to an excessive period of incarceration?
Appellant’s Brief at 4.
These issues challenge the discretionary aspects of Appellant’s
sentence. “The right to appellate review of the discretionary aspects of a
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sentence is not absolute, and must be considered a petition for permission to
appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.
2014), appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a
four-part test to invoke this Court’s jurisdiction when challenging the
discretionary aspects of a sentence.” Id. We conduct this four-part test to
determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Here, Appellant has complied with the first three prongs of the
discretionary aspect test to invoke our jurisdiction. We thus proceed to
determine whether he has raised a substantial question. Appellant argues in
his 2119(f) statement that the sentence imposed by the trial court was
“manifestly unreasonable and excessive.” Appellant’s Brief at 10. A claim
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that a sentence is manifestly excessive such that it constitutes too severe a
punishment raises a substantial question for our review. See
Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011).
Our scope of review in an appeal of a sentence imposed after probation
revocation is limited to the validity of the revocation proceedings and the
legality of the sentence imposed following revocation. Commonwealth v.
Infante, 888 A.2d 783, 790 (Pa. 2005). “Revocation of a probation sentence
is a 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.” Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa.
Super. 2008) (citation omitted). Upon sentencing following a 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.
Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001).
However, a re-sentence may not exceed the statutory limits of the sentence,
including allowable deductions for time served. See id.Although Appellant argues that the sentence imposed by the trial court
following revocation of probation was excessive, he notably does not argue
that the sentence imposed by the court was beyond the maximum. Nor does
the record support such an assertion. It is well settled that the sentencing
guidelines do not apply to sentences imposed as a result of probation or parole
revocations. Commonwealth v. Ware, 737 A.2d 251, 255 (Pa. Super.
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1999), appeal denied, 747 A.2d 900 (Pa. 1999).1 Here, the trial court did
not exceed the statutory maximum when it resentenced Appellant to five to
ten years’ imprisonment for ethnic intimidation following the revocation of his
probation. Therefore, we find no abuse of discretion in the trial court’s
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/18
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1 204 Pa.Code § 303.1(b) states: “The sentencing guidelines do not apply to
sentences imposed as a result of the following: . . . revocation of probation,
intermediate punishment or parole.”
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