Com v. Derry, D. , 150 A.3d 987 ( 2016 )

J-A21001-16
2016 PA Super 250COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID DERRY,
Appellant No. 3501 EDA 2015
Appeal from the Judgment of Sentence entered October 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001783-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID DERRY,
Appellant No. 3502 EDA 2015
Appeal from the Judgment of Sentence entered October 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012178-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
OPINION BY BENDER, P.J.E.: FILED NOVEMBER 15, 2016
In this consolidated action, Appellant, David Derry, appeals from the
judgment of sentence of an aggregate term of 5-10 years’ incarceration and
20 years’ probation, imposed following his commission of new crimes in
November of 2014, while he was serving terms of probation in effect at CP-
51-CR-0001783-2013 (hereinafter, “case number 1783”) and CP-51-CR-
J-A21001-16
0012178-2013 (hereinafter, “case number 12178”). Appellant presents
multiple challenges to the discretionary aspects of the sentence imposed by
the sentencing court. After careful review, we affirm.
The trial court set forth the factual and procedural history of this case
as follows:
On October 23, 2013, [Appellant] entered into a
negotiated guilty plea to the charges of … Possession with Intent
to Distribute ("PWID") and Criminal Conspiracy and was
sentenced by this [c]ourt to twelve (12) months of drug
treatment, followed by four (4) years' probation. On November
14, 2014, Philadelphia Police arrested [Appellant] for Burglary,
Aggravated Assault, Reckless Endangerment, Violation of a
Protection From Abuse ("PFA") Order, and related, lesser
charges. These charges were based on confrontations that
occurred between [Appellant] and Lynette Rosario ("Rosario"),
on November 6 and 14, 2014. On November 6, 2014,
[Appellant] came to Ms. Rosario's house at 22 East Thelma
Street, in the city and county of Philadelphia. N.T.[,]
10/19/2015[,] at 5-6. [Appellant] came to the door, and pulled
Ms. Rosario into the basement where he proceeded to slap and
punch her. Id. Defendant then went upstairs and took clothing,
her car keys, and her vehicle. Id.On November 14, 2014, Ms. Rosario was getting her nails
done at E Street and Wyoming Street, in the city and county of
Philadelphia, at approximately 12:30 in the afternoon when she
observed [Appellant] in her car, circling in the parking lot. Id. at
6-7. Ms. Rosario, who was with her nephew at the time,
proceeded to leave the salon and return to her residence. Id. at
7. Upon returning to her residence, Ms. Rosario found
[Appellant] parked outside of her residence. [Id.] at 7.
[Appellant] exited his vehicle, made his way toward the vehicle
that Ms. Rosario and her nephew were in, and attempted to kick
in the window of the car. Id. At the time of this incident on
November 14, 2014, the PFA was in place. Id. at 7-8.
After [the] Preliminary Hearing, the District Attorney filed
criminal informations arising from the November 6 and 14, 2014
incidents at CP-51-CR-0013897[-2014] and [CP-51-CR-
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]0013898[-2014] (collectively "New Charges"). At the first trial
listing [for the] [N]ew [C]harges, Ms. Rosario appeared and
asked the District Attorney's Office to withdraw the prosecution,
however, the office did not acquiesce to her wishes and sought a
new trial date. On October 16, 2015, at the second trial hearing,
[Appellant] agreed to transfer the New Charges from Judge
Robert P. Coleman to this [c]ourt for disposition pursuant to Pa.
R.C[rim].P. 701.
At a hearing held before this [c]ourt on October 19, 2015,
[Appellant] entered into a negotiated guilty plea to the New
Charges. [Id.] at 8-13. This [c]ourt accepted [Appellant]'s
plea, and found him to be in direct violation of his probation. Id.
This [c]ourt went on to impose Violation of Probation ("VOP")
sentences of five (5) to ten (10) years[’] imprisonment for PWID
and ten (10) years of concurrent probation for Criminal
Conspiracy on CP-51-CR-0001783-2013, and ten (10) years[’]
consecutive probation on CP- 51-CR-0012178-2013. Id. at 22-
23. On October 28, 2015, [Appellant] filed Motions for
Reconsideration of VOP sentence, arguing that the VOP
sentences imposed by the [c]ourt were greater than necessary
to protect Ms. Rosario, rehabilitate [Appellant], and prevent a
repeat occurrence. On November 4, 2015, this [c]ourt denied
both Motions for Reconsideration without a hearing. N.T.[,]
11/4/2015[,] at 2-3.
[Appellant] filed [a] Notice of Appeal on November 17,
2015, after which this [c]ourt entered an Order on December 8,
2015, requesting the filing of a [Pa.R.A.P. 1925(b) statement]
within twenty-one (21) days. On December 28, 2015,
[Appellant] filed [his Rule 1925(b) statement]. [Therein,
Appellant] complained that this [c]ourt imposed an [i]llegal
[s]entence of [p]robation [at case number 1783], arguing that
the aggregate penalty imposed by the [c]ourt exceeded the
maximum sentence of ten (10) years allowed for by the penalty
provision of 35 P.S. § 780-113(f)(1.1). Further, [Appellant]
allege[d] that the [c]ourt did not adequately consider all relevant
factors prior to imposing the VOP penalty. [Appellant] state[d]
that the penalty was motivated by ill will and a desire to punish
[Appellant]. [Appellant] also allege[d] the VOP sentence
imposed was excessive and violated fundamental norms of
sentencing as set forth under Pa.R.A.P. 2119(f).
Trial Court Opinion (TCO), 2/25/16, at 1-3.
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Appellant now presents the following claims for our consideration:
A. The court did not adequately consider all relevant factors prior
to imposing the VOP sentences, which instead appear to have
been motivated by ill will and a desire to punish [Appellant].
B. The court imposed an unreasonable term of probation at
[case number 1783].
C. The court’s aggregate VOP penalty in these cases was
manifestly excessive and unreasonable.
Appellant’s Brief, at 3 (unnecessary capitalization and citations omitted).
All three of Appellant’s claims facially implicate the discretionary
aspects of the trial court’s sentencing decision.
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill[-]will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)
(quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
2006)).
Moreover,
[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to review as of right. Commonwealth
v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether 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
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modify sentence, see Pa.R.Crim.P. [720]; (3) whether
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. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). Objections 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. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
A substantial question exists “only when the appellant advances
a colorable argument that the sentencing judge's actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Sierra, supra at 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Instantly, Appellant timely appealed his sentence, after having
preserved his sentencing claims in a post-sentence motion. Appellant has
also provided a Rule 2119(f) statement in his appellate brief, which purports
to offer reasons why his sentencing claims present substantial questions for
our review. Appellant suggests three potential substantial questions: first,
that the VOP court failed to consider factors set forth in 42 Pa.C.S. §
9721(b). Second, that the sentence was the product a “desire to punish;”
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and, third, that the aggregate sentence imposed was manifestly
unreasonable in the circumstances of this case.
Appellant contends his first claim satisfies the substantial question test
because the trial court ostensibly failed to adhere to the principles set forth
in Section 9721(b), that is, 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. §
9721(b) (hereinafter, Section 9721(b) factors).
An averment that “the trial court failed to consider relevant sentencing
criteria, including the protection of the public, the gravity of the underlying
offense and the rehabilitative needs of Appellant, as 42 PA.C.S.[] § 9721(b)
requires[,]” presents a substantial question for our review in typical cases.
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012). However,
here, the Commonwealth argues that our Supreme Court, in
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014), held that Section
9721(b) does not apply to a sentence imposed for a VOP and, therefore, that
a sentence’s inconsistency with Section 9721(b) factors does not present a
substantial question for our review on the basis that a sentence is
“inconsistent with a specific provision of the Sentencing Code.”
Commonwealth’s Brief, at 6-7; Moury, 992 A.2d at 170 (quoting from
Sierra 752 A.2d at 912-13).
Indeed, in Pasture, our Supreme Court stated:
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The sentencing court's institutional advantage is, perhaps, more
pronounced in fashioning a sentence following the revocation of
probation, which is qualitatively different than an initial
sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a
defendant reappears before the court for sentencing proceedings
following a violation of the mercy bestowed upon him in the form
of a probationary sentence. For example, in such a case,
contrary to when an initial sentence is imposed, the Sentencing
Guidelines do not apply, and the revocation court is not cabined
by Section 9721(b)'s requirement 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.”
Pasture, 107 A.3d at 27 (emphasis added).
Additional scrutiny is warranted, however, as this statement by our
Supreme Court, as interpreted by the Commonwealth, appears to contradict
the unanimous holding of an en banc panel this Court made just a year prior
to Pasture, that a VOP court’s failure to consider Section 9721(b) factors
does present a substantial question for our review. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (recognizing, in an
appeal from a VOP sentence, that a substantial question is presented by the
claim that “the sentencing court did not consider the appropriate sentencing
factors delineated in” Section 9721(b), although ultimately rejecting that
particular sentencing claim on waiver grounds). The Cartrette Court
recognized that some provisions of Section 9721(b) do not apply at VOP
sentencing proceedings, such as the command that the sentencing court
“shall also consider any guidelines for sentencing and resentencing adopted
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by the Pennsylvania Commission on Sentencing.” Id. at 1040-41 (quoting
from 42 Pa.C.S. § 9721(b)).
This discrepancy between this Court’s unanimous en banc decision in
Cartrette, and our Supreme Court’s decision in Pasture, turns on the
Supreme Court’s use of the term, “cabined,” in the phrase, “the revocation
court is not cabined by Section 9721(b)'s requirement 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.’” Pasture, 107 A.3d at 27 (emphasis added).
The Commonwealth would have us interpret ‘cabined’ in this context to
mean, effectively, ‘need not consider at all.’ See Commonwealth’s Brief, at
7 (“Plainly, the revocation court could not have violated a provision of the
Sentencing Code that did not apply to [Appellant]’s case.”). This
interpretation contradicts the more nuanced view expressed in Cartrette
regarding the applicability of Section 9721(b) to VOP sentences:
While parts of § 9721(b) do not govern revocation proceedings,
as our sentencing guidelines are not required to be consulted in
such instances, see 204 Pa.Code. § 303.1(b), other provisions of
that section do apply. For example, 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. § 9721(b). In
addition, in all cases where the court “resentences an offender
following revocation of probation, county intermediate
punishment or State intermediate punishment or resentences
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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.” Id. Failure
to comply with these provisions “shall be grounds for vacating
the sentence or resentence and resentencing the defendant.”
Id.
Cartrette, 83 A.3d at 1040–41 (emphasis added).
Moreover, the Commonwealth’s interpretation of the Supreme Court’s
use of the term ‘cabined’ is far from the obvious one. The Pasture Court’s
use of this term does not imply that Section 9721(b) is now wholly irrelevant
or inapplicable to VOP sentences, contrary to all previous authority. The
definition of the verb ‘cabined’ is to “confine in a small space.” The New
Oxford American Dictionary, 239 (1st ed 2001). Thus, we read “the
revocation court is not cabined by Section 9721(b)'s requirement,” Pasture,
107 A.3d at 27 (emphasis added), to be synonymous with, ‘the revocation
court is not confined or restrained solely by Section 9721(b) factors.’
Instead, at a VOP sentencing hearing, additional factors and concerns are in
play. The statute governing the modification or revocation of an order of
probation discusses these additional concerns:
(b) Revocation.--The court may revoke an order of probation
upon proof of the violation of specified conditions of the
probation. Upon revocation the sentencing alternatives available
to the court shall be the same as were available at the time of
initial sentencing, due consideration being given to the time
spent serving the order of probation.
(c) Limitation on sentence of total confinement.--The court
shall not impose a sentence of total confinement upon revocation
unless it finds that:
(1) the defendant has been convicted of another crime; or
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(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. § 9771(c).
Thus, Section 9771(c) mandates a VOP court’s consideration of
additional factors at sentencing not addressed by Section 9721(b).
Consequently, a VOP court is not confined to only consider the factors set
forth in Section 9721(b), that is, it is not cabined by Section 9721(b).
Instead, a VOP court must also consider the dictates of Section 9771(c),
given the unique aspects of VOP sentences not applicable when a court
issues the initial sentence. In addition to issuing a sentence 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[,]” a VOP court must also consider, for
example, whether the sentence imposed is “essential to vindicate the
authority of the court[,]” and must give “due consideration … to the time
spent serving the order of probation.” 42 Pa.C.S. § 9771(c). Both of these
concerns are unique to VOP sentencing hearings and may, in the end, weigh
heavily on a court’s consideration of an appropriate VOP sentence. But such
additional considerations do not, as a necessary consequence, render the
Section 9721(b) factors inapplicable for purposes of VOP sentences.
There should be little doubt about the intent of the Pasture Court.
The Court never explicitly stated that a claim alleging a VOP court’s failure to
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consider Section 9721(b) factors no longer presents a substantial question
for the purposes of discretionary sentencing review. Nor did the Pasture
Court expressly overturn cases such as Cartrette, which clearly stated that
such a claim does present a substantial question. Indeed, the Pasture
Court, in reversing this Court’s decision1 to overturn Pasture’s sentence,
ultimately concluded that the Superior Court had given “insufficient
deference to the revocation court's imposition of the sentence[.]” Pasture,
107 A.3d at 29. This strongly suggests the Pasture Court had reached the
merits of Pasture’s discretionary aspects of sentencing claim, and had not
reversed the lower court based on the substantial question doctrine.
Indeed, there is absolutely no discussion of the substantial question doctrine
at all in Pasture.
Accordingly, we hold that Pasture did not upend our substantial
question doctrine, as our Supreme Court did not hold in that case that
consideration of Section 9721(b) factors is now irrelevant or inapplicable to
VOP sentences. To the contrary, a VOP sentencing court must consider
those factors, see Cartrette, 83 A.3d at 1040–41, but must also consider
factors set forth in Section 9771(c), which are unique to VOP sentences. 2
____________________________________________
1
Commonwealth v. Pasture, 48 A.3d 489 (Pa. Super. 2012)
(memorandum opinion).
2
As the Pasture Court suggested, review of the discretionary aspects of a
VOP court’s sentence with regard to Section 9721(b) factors may, as a
(Footnote Continued Next Page)
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Therefore, we find that Appellant presents a substantial question for our
review, to the extent that he challenges the sentencing court’s failure to
consider Section 9721(b) factors. Riggs, supra.
Appellant also claims that his sentence was a product of a “desire to
punish,” which presents a separate potential substantial question.
Appellant’s Brief, at 18. As the Commonwealth correctly points out with
regard to this claim, Appellant cites no conflicting sentencing provision or
case law showing such a desire is contrary to the fundamental norms of
_______________________
(Footnote Continued)
practical matter, dictate a greater degree of deference from a reviewing
court:
Simply put, since the defendant has previously appeared before
the sentencing court, the stated reasons for a revocation
sentence need not be as elaborate as that which is required at
initial sentencing. The rationale for this is obvious. When
sentencing is a consequence of the revocation of probation, the
trial judge is already fully informed as to the facts and
circumstances of both the crime and the nature of the
defendant, particularly where, as here, the trial judge had the
benefit of a PSI during the initial sentencing proceedings. See
[Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa. 2007)]
(“Where [PSI] exist[s], we shall continue to presume that the
sentencing judge was aware of the relevant information
regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.”).
Pasture, 107 A.3d at 28. However, while Pasture guides our review of
claims concerning the discretionary aspects of a VOP court’s sentence with
respect to the sentencing court’s adherence to Section 9721(b) factors, it
does not proscribe our review entirely under the substantial question
doctrine.
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sentencing.3 However, it is axiomatic that an abuse of a sentencing court’s
discretion may be demonstrated where the court “exercised its judgment for
reasons of partiality, prejudice, bias or ill[-]will[.]” Hoch, 936 A.2d at 518.
Thus, to the extent that Appellant argues that the VOP court’s desire to
punish was motivated by one of these factors, and can demonstrate such
with adequate support from the record, he presents a substantial question
for our review, because sentences which are the product of such factors are
necessarily contrary to the fundamental norms of sentencing.
Appellant also claims that the aggregate VOP sentence imposed by the
court was manifestly excessive and unreasonable. A claim that “a sentence
is manifestly excessive such that it constitutes too severe a punishment
raises a substantial question.” Commonwealth v. Kelly, 33 A.3d 638, 640
(Pa. Super. 2011). Accordingly, we now turn to the merits of Appellant’s
sentencing claims.
First, in the argument portion of his brief, under the auspices of his
first claim, Appellant asserts that the trial court failed to consider “the
impact of incarceration on the well-being of Ms. Rosario and her child with
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3
Nevertheless, the Commonwealth disingenuously construes Appellant’s
claim as an assertion that “punishing a defendant for criminal behavior is
contrary to the fundamental norms of sentencing.” Commonwealth’s Brief,
at 7. Obviously, albeit inarticulately, Appellant is trying to challenge the zeal
of the sentencing court, not its basic function. We note that the
Commonwealth’s rhetorical gamesmanship in this regard is not helpful to our
review.
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[Appellant][.]” Appellant’s Brief, at 19. However, Appellant fails to argue
how this concern relates to the VOP court’s consideration of Section 9721(b)
factors. While the court is required to consider the gravity of the offense as
it relates to the impact on the life of the victim and on the community, it is
not required under that provision to consider the impact of the sentence on
the victim and/or the community. Accordingly, we find no merit to this
aspect of Appellant’s claim.
Next, Appellant asserts that the court failed to adequately consider his
rehabilitative needs. In this regard, Appellant avers that the court
improperly characterized his technical violations of failing to report for
treatment under the terms of his probation, and testing positive for
marijuana. However, Appellant was not sentenced primarily for technical
violations of his probation. More importantly, Appellant violated his
probation by committing new offenses to which he pled guilty: simple
assault, criminal trespass, and indirect criminal contempt (for the violation of
a PFA in effect with regard to Ms. Rosario). Accordingly, we find the VOP
court’s discussion of his technical violations to be ancillary to the primary
justification for his new sentence. Moreover, Appellant does not engage in
any discussion of his rehabilitate efforts, successful or otherwise, other than
to intimate that the court’s ostensible overstatement of his technical
violations of probation was improper. That Appellant’s technical violations
were relatively minor does not demonstrate that the court was unaware of
his rehabilitative efforts, or that the efforts made showed promise not
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reflected in the VOP court’s sentence. To the contrary, Appellant’s
commission of new offenses, in addition to his technical violations of the
terms of his probation, demonstrate the lack of success of the rehabilitative
aspects of Appellant’s previously imposed probationary sentence. Therefore,
we find this argument unpersuasive and lacking merit.
Next, Appellant alleges bias or ill-will on the part of the VOP court.
When Appellant requested a date for a hearing on his post-sentence motion
for seeking reconsideration of his sentence, the VOP court addressed the
matter as follows:
[Appellant’s Counsel]: I think he should – I would ask that
he be present.
THE COURT: Okay, sure. We’ve got to accommodate him.
Sure. Accommodate him. They go to Graterford every
day.
[. . .]
[Prosecutor]: What’s his name, Judge?
THE COURT: His name is David Derry, D-A-V-I-D, Derry,
D-E-R-R-Y. And we’ll do him November 4th. There you go.
Signed, sealed – let me give this to – I’m going to make a
copy for everybody. Bright and early. 9 o’clock we’ll do
him. Tell him to get dressed today, so he can be on time
tomorrow. Tell him to wear a suit and tie. Get dressed
up. We’re going to have a party in here.
[Prosecutor]: We’re bringing him down? He’ll be dressed –
he’ll be dressed however he wishes.
THE COURT: He can come in however he wants to. He can
come in naked as a jaybird. Doesn’t matter. Okay. We’ll
see you tomorrow.
MR. MAURER: Thank you, Judge. Appreciate the courtesy.
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THE COURT: I’ll bring the candles, and the matches. Have
the fireworks go out [sic]. You’ll think it’s the Fourth of
July here tomorrow. Next.
N.T., 11/3/15, at 5-6.
Appellant believes the VOP court’s comments above, on their face,
demonstrated the court’s ill-will or bias towards him. We disagree. While
the court appears to have engaged in a series of sarcastic comments,
essentially feigning excitement about Appellant’s return to the courtroom,
we do not believe this conduct rises to the level of “partiality, prejudice, bias
or ill[-]will.” Hoch, 936 A.2d at 518. The court does not appear to be pre-
judging the merits of Appellant’s post-sentence motions, or making any
specific comments suggesting a particular animus towards Appellant. In any
event, Appellant fails to sufficiently articulate, with any specificity, why the
court’s comments should be received as bias or ill-will toward Appellant
specifically, rather than simply playful banter among court staff and
attorneys conducted outside the presence of Appellant. Accordingly, we
conclude that this aspect of Appellant’s first claim also lacks merit.
Appellant’s second claim generally asserts that his term of 10 years’
probation, imposed at case number 1783, was unreasonable. However,
beyond that, his argument is difficult to discern. That new term of 10
years’ probation was imposed for Appellant’s criminal conspiracy conviction,
which the court ordered to run concurrently with Appellant’s 5-10 year term
of incarceration for PWID. Appellant complains:
In the event [Appellant] is paroled at or near his minimum date
in Case 1783, he will have been “supervised” for no less than 5
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years at the point the [c]ourt’s sentence of 10 years[’] probation
becomes effective. If that probation term is consecutive
according to the docket, the resulting aggregate term of
supervision will exceed the ten-year maximum sentence
applicable to 51-CR-01783-2013. While this sentence was not
illegal, an aggregate supervision term of 20 years is
unreasonable.
Appellant’s Brief, at 22.
It appears that the true nature of Appellant’s complaint is that the
docket does not reflect the sentence imposed by the VOP court at the VOP
sentencing hearing. The court indicates in its opinion that the sentence in
question was imposed concurrently, not consecutively, to the sentence of
incarceration. TCO, at 2. Likewise, the VOP sentencing hearing transcript
reflects the same sentencing structure. N.T., 10/19/15, at 48. Moreover,
the sentencing order for case numbers 1783 reflects the same.
The “Disposition Sentencing/Penalties” section of the publicly available
docket sheets for case number 1783 does not indicate either way whether
the sentence in question is to run concurrently or consecutively to the
sentence of incarceration. However, the docket entry for 10/19/2015 reads,
in part, verbatim: “PROBATION REVOKED; NEW SENTENCE: 5-10 YRS
CONFINEMENT FOLLOWED BY 10YR PROBATION/CREDIT FOR TIME
GRANTED[.]” This contradicts the sentence actually imposed by the VOP
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court at sentencing, as reflected in the sentencing order, and as stated by
the VOP court in its opinion.4
Although the sentencing order and the court’s statement at the
sentencing hearing clearly control, we acknowledge that this incorrect entry
in the lower court docket could cause confusion in the future. Accordingly,
we remand this matter to the VOP court to correct the erroneous docket
entry for case number 1783 entered on 10/19/2015, which should reflect
that the imposed term of probation is concurrent to, not consecutive to, the
imposed term of incarceration.
Finally, in his third claim, Appellant challenges the aggregate sentence
imposed at case numbers 1783 and 12178 as manifestly unreasonable. The
entirety of Appellant’s argument is as follows:
“Generally speaking, ‘unreasonable’ commonly connotes a
decision that is ‘irrational’ or ‘not guided by sound judgment.’”
[Commonwealth v.] Walls[, 926 A.2d 957,] 963 [Pa. 2007],
____________________________________________
4
Appellant has three VOP sentences. As noted above, at case number
1783, he was sentenced to 5-10 years’ incarceration, with a concurrent term
of 10 years’ probation. At case number 12178, Appellant was sentence to
10 years’ probation, consecutive to the sentence imposed at case number
1783. At first glance, it appeared that the troublesome docket entry on case
number 1783 may have simply reflected the aggregate sentence for both
cases, with the concurrent-to-incarceration probation term being omitted.
However, the publically available docket sheets for case number 12178
refute such a conclusion, as it lists only the sentence at case number 12178,
which is stated as, verbatim: “NEW: 10YR PROBATION/ CONSECUTIVE TO
ANY OTHER[.]” Thus, the docket entries for case number 1783 are
erroneous or, at best, misleading. Read together, these combined entries
suggest that Appellant has two consecutive terms of 10 years’ probation,
rather than just one.
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quoting the Random House Dictionary of the English Language,
2084 (2d ed. 1987). The following aspects of [Appellant]’s VOP
sentence confirm that it was unreasonable:
1. The victim, Lynette Rosario, appeared at sentencing to
explain that she had known [Appellant] for 22 years, and
that her infant daughter with [Appellant], Maribel Derry,
was almost seven months old.
2. Ms. Rosario attributed the new charges to “arguing back
and forth, both of us.” Mr. Rosario added that “I wasn’t
taking my meds, and we were just having problems.”
3. The new charges in Case 1783 were resolved with a
sentence of time served to 23 months, while the new
charges at Case 12178 involved a guilty plea to ICC with
no further penalty.
4. [Appellant] reported to probation as directed until the
incident on November 6, 2014, which was the basis of the
new charges at Case 1783.
These circumstances, for which [Appellant] had served 11
months in prison at the time of sentencing, did not warrant
additional penalties of 5 to 10 years SCI, followed by (depending
on the [c]ourt’s opinion or the docket) an aggregate term of
either 10 or 20 additional years of probation.
Appellant’s Brief, at 22-23 (citations to reproduced record omitted).
Appellant’s argument is woefully inadequate to establish an abuse of
the VOP court’s discretion. Appellant primarily lists various factual
assertions which the VOP court may or may not have accepted. However,
the VOP court was not compelled to accept Ms. Rosario’s version of events.
Indeed, the VOP court stated, “as Ms. Rosario appeared in person before the
[c]ourt herself, the [c]ourt had no option but to consider her testimony, and
found her explanation for [Appellant]'s conduct to be unsatisfactory.” TCO,
at 6. This Court cannot substitute its judgment regarding Ms. Rosario’s
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credibly for that of the VOP court. See Commonwealth v. Myers, 722
A.2d 649, 654 (Pa. 1998) (“[O]ur standard of review does not permit an
appellate court to challenge the sentencing court's credibility
determinations.”).
Moreover, the primary justification for Appellant’s VOP sentence was
not merely the specific conduct giving rise to his new offenses, but the fact
that Appellant engaged in such conduct while already under the court’s
supervision and, additionally, in violation of the PFA in effect when he
committed those offenses. The VOP court stated:
This [c]ourt's sentence was not manifestly unreasonable.
The record clearly shows that the [c]ourt took several factors
into consideration when formulating [Appellant]'s new sentence.
These considerations include: [Appellant]'s recent arrest,
[Appellant]'s direct and technical violations, the willfulness of
these violations, the Sentencing Guidelines, the fundamental
norms which underlie the sentencing process, [Appellant]'s
statements, and the probation officer's report.
...
[Appellant] assaulted and burglarized Ms. Rosario, and in doing
so violated his PFA. This [c]ourt concluded that a lesser
sentence would deprecate the seriousness of the offense….
Additionally, [Appellant]'s conduct has escalated from non-
violent crimes, for which [Appellant] was currently on the
[p]robation of this [c]ourt, to the violent crimes [Appellant]
committed against Ms. Rosario. Thus the past conduct, and
escalation in conduct, of [Appellant] indicates that it is likely that
he will commit another crime if he is not imprisoned…..
Therefore, the imposition of this sentence was essential to
vindicate the authority of this [c]ourt.
TCO, at 5-6.
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Clearly, the VOP court considered far more than the seriousness of
Appellant’s new offenses. Consequently, Appellant’s cursory argument
appears largely unresponsive to many of the reasons the VOP court offered
for the imposed sentence. We agree that Appellant’s sentence appears
harsh; however, he simply fails to demonstrate that the harshness of his
sentence is a product of an abuse of the VOP court’s discretion. Thus, we
conclude that his third claim also lacks merit.
In sum, we hold that the failure to consider Section 9721(b) factors
does present a substantial question for our review of the discretionary
aspects of sentences imposed for violations of probation. However, we
conclude that Appellant’s first and third sentencing claims lack merit. With
regard to Appellant’s second claim, we remand to the VOP court for the
limited purpose of correcting the erroneous entry in the court’s docket
concerning Appellant’s new sentence imposed in case number 1783.
Judgment of sentence affirmed. Case remanded for correction of a
clerical error in the lower court docket. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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