Com. v. Banks, E. , 198 A.3d 391 ( 2018 )

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2018 PA Super 390COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EMMANUEL THEODORE BANKS :
:
Appellant : No. 1451 MDA 2017
Appeal from the Judgment of Sentence Entered December 15, 2016
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000621-2014,
CP-67-CR-0001283-2015, CP-67-CR-0001472-2015,
CP-67-CR-0001501-2015, CP-67-CR-0001503-2015,
CP-67-CR-0003290-2015
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
OPINION BY McLAUGHLIN, J.: FILED OCTOBER 29, 2018
Emmanuel Theodore Banks appeals from the judgment of sentence of
18 to 42 months, imposed on December 15, 2016, following revocation of his
intermediate punishment. Banks challenges the authority of a visiting judge
to revoke his original sentence, as well as discretionary aspects of the new
sentence imposed. We affirm.
In June 2015, Banks pleaded guilty before the Honorable Thomas H.
Kelley to certain charges filed against him at each of the above-listed dockets.1
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* Retired Senior Judge assigned to the Superior Court.
1 Banks pleaded guilty to the following:
(1) Dkt. No. 621-2014 - Theft by Unlawful Taking, 18 Pa.C.S. § 3921(a)
(graded as an M2);
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See Notes of Testimony (N.T. Plea), 06/30/2015. The underlying facts
supporting each of those pleas were not addressed by the revocation court,
nor is their substance relevant to the issues currently before this Court.
Therefore, we need not discuss them in detail. See N.T. Plea at 6-9 (outlining
the factual basis for Banks’ crimes).
Following a presentence investigation, this matter proceeded to
sentencing in October 2015. See Notes of Testimony (N.T. Sentencing),
10/01/2015. The court imposed concurrent sentences for all charges,
comprised largely of time-served sentences, probation, costs and fines. Id.
at 5-7. At three dockets, Nos. 1472-2015, 1503-2015, and 3290-2015, the
court imposed county intermediate punishment (IP) of five years, with the
first twelve months to be served in the Day Reporting Center (DRC). Id. at
6. Following imposition of sentence, for reasons that are not clear from the
record, this matter was re-assigned to the Honorable Michael E. Bortner. See,
e.g., Dkt. No. CP-67-CR-0001472-2015, Filings Information, Registry Entry,
10/22/2015.
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(2) Dkt. No. 1283-2015 – Resisting Arrest, 18 Pa.C.S. § 5104; Accidents
Involving Damage, 75 Pa.C.S. § 3743(a); Driving under Suspension,
75 Pa.C.S. § 1543(a).
(3) Dkt. No. 1472-2015 – two counts of Possession with Intent to Deliver
(PWID), 35 P.S. § 780-113(a)(30);
(4) Dkt. No. 1501-2015 – Defiant Trespass, 18 Pa.C.S. § 3503(b)(1)(i);
(5) Dkt. No. 1503-2015 – Theft by Unlawful Taking, 18 Pa.C.S. § 3921(a)
(graded as an M1);
(6) Dkt. No. 3290-2015 – PWID, 35 P.S. § 780-113(a)(30).
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In June 2016, the York County Probation Department filed a petition for
violation at each of Banks’ six dockets. See Pet. for Violation, 06/17/2018.
In support of the petition, the department cited new criminal charges and
numerous technical violations. Id. at 4-5. According to the department, the
charges arose from a domestic dispute involving Banks’ paramour and
included allegations of assault and theft.2 Id. at 5. The technical violations
included numerous allegations of failure to report to the DRC, failure to report
for urine screenings, and/or production of a urine sample that tested positive
for marijuana or alcohol. Id. at 4-5.
A warrant issued, and Banks was detained. In October 2016, he was
released on supervised bail, and a hearing was scheduled for December 2016.
See Revocation Ct. Order, 10/20/2016. The stated purpose of the hearing
was two-fold: (1) a preliminary hearing to address Banks’ new charges,
apparently necessary because the complaining witness was no longer
cooperating with the Commonwealth; and (2) an IP violation hearing. Id.
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2In its opinion, the revocation court stated that Banks was charged thereafter,
by Informations dated September 2, 2016, as follows:
(1) Dkt. No. 5301-2016 – Simple Assault, 18 Pa.C.S. § 2701(a)(1);
(2) Dkt. No. 5303-2016 - Kidnapping, 18 Pa.C.S. § 2901(a)(3); Burglary,
18 Pa.C.S. § 3502(a)(1); Simple Assault, 18 Pa.C.S. § 2701(a)(3);
Terroristic Threats, 18 Pa.C.S. § 2706(a)(1); and Unlawful Restraint,
18 Pa.C.S. § 2902(a)(1).
Revocation Ct. Pa.R.A.P. 1925(a) Op., 02/28/2018, at 2.
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Sometime after this order issued, Judge Bortner left the bench on a medical
convalescence. See Revocation Ct. Pa.R.A.P. 1925(a) Op. at 2.
At this point, the procedural history of this case becomes complicated.
During Judge Bortner’s absence, in December 2016, the scheduled hearing
commenced before the Honorable Linda K. M. Ludgate. Notes of Testimony
(N.T. Revocation), 12/15/2016.3 At the request of the Commonwealth, the
court entered an order to nolle pros the charges related to Banks’ paramour.
Id. at 2. The parties proceeded to address Banks’ alleged IP violations. Id.
At this point, the following exchange occurred:
THE COURT: Okay. Is your client prepared to proceed today[,]
because otherwise why wouldn’t he proceed?
[BANKS’ COUNSEL]: Yeah, we can proceed. That’s fine.
N.T. Revocation at 3.
Counsel conceded technical violations of his IP sentence but voiced
concern that the nolle prossed charges formed the primary basis for the
revocation hearing. Id. Though initially the court indicated that the substance
of the new charges were no longer relevant, upon further consideration, the
court agreed to consider the evidence. Id. at 3-4.
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3 Judge Ludgate served as a visiting, senior judge from Berks County,
Pennsylvania. See N.T. Revocation at 1; Notes of Testimony (N.T. Post
Sentence Hearing), 03/28/2017, at 16; Revocation Ct. Pa.R.A.P. 1925(a) Op.
at 2; PCRA Ct. Order, 06/30/2017, at 2. As will become clear, this hearing
represents Judge Ludgate’s sole involvement with this case.
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The probation officer first detailed the technical violations committed by
Banks.4 Id. at 4-6 (detailing the dates on which Banks failed to report to the
DRC, failed to provide urine samples or provided diluted samples, and
produced samples testing positive for marijuana or alcohol). Thereafter, the
probation officer again referenced Banks’ arrest and provided details of Banks’
alleged behavior:
PROBATION OFFICER: Well, condition 10 [of the terms of Banks’
intermediate punishment], assaultive and threatening behavior.
Again, those are related to those cases. That incident, there was
a police report. Probation was contacted, as you see, Your Honor,
May 28th –
THE COURT: He punched her in the head. Is this a domestic thing?
PROBATION OFFCIER: It appears to be so, Your Honor. It’s his
paramour. She –
THE COURT: It was a second time he’s alleged to have broken into
her house?
PROBATION OFFICER: I believe so, Your Honor, according to this
report, and according to what we have on record from the police
as well.
THE COURT: It looks like, according to this third paragraph under
10, that this was a place that was in her name?
PROBATION OFFICER: It seems so, Your Honor.
THE COURT: And then he got arrested on domestic violence?
PROBATION OFFICER: Yes. He was detained and officers from
York City Police Department did also submit a report as well.
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4The parties seemingly agreed to proceed with an informal hearing. See id.
at 3. Though Banks was sworn in, the probation officer was not. Id. at 3-4.
Banks does not challenge the informal nature of the proceedings.
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We were able to make entry, the probation department, into [the
alleged victim’s] house. In paragraph 2, also, [Banks] took [the
victim] at knife point to Red Lion and returned sometime –
Id. at 6-7. At this point, counsel for Banks objected:
[COUNSEL]: Your Honor, I’m going to formally object to this.
Those charges were nolle prossed. I don’t think it’s proper[ly]
before you.
Id. at 7. The court did not rule on Banks’ objection but ceased questioning
the probation officer regarding the allegations and sought a recommendation
for sentencing. Id. The probation officer then recommended 21 to 42 months
of incarceration. Id.
In response, Banks attempted to explain why he had passed diluted
and/or positive urine and informed the court that he was employed and took
weekly classes at a church. No further evidence was offered to counter the
statements of the probation officer. Id. at 12.
Thereafter, the court concluded that Banks had violated the terms of his
IP sentence imposed at three dockets, Nos. 1472-2015, 1503-2015, and
3290-2015. The court revoked those IP sentences and imposed an aggregate
sentence of 18 to 42 months of incarceration. Id. at 14.5
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5To be clear, no action was taken at docket Nos. 621-2014, 1501-2015, or
1283-2016.
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Banks timely filed a post-sentence motion.6 Banks’ Post-Sentence
Motion, 12/16/2016. Banks noted that Judge Ludgate was not the original
sentencing judge and asserted that neither he nor his counsel consented to
Judge Ludgate presiding over the violation hearing. Id. at 1-2 (unpaginated).
Further, according to Banks, no extraordinary circumstances justified a
different judge’s supervision of his case. Id. at 2 (unpaginated) (further
averring that Judge Bornter’s absence was temporary and that he was due to
return to the bench in January 2017). Banks also asserted that the sentence
imposed was excessive and noted that the new charges filed against him were
nolle prossed. Id. at 2-3 (unpaginated). Accordingly, Banks requested that
his sentence be vacated and a new violation hearing held before Judge
Bortner. Id.
The court took no action to resolve Banks’ motion until February 2017,
when it issued an order scheduling a hearing. Revocation Ct. Order,
02/14/2017. In March 2017, a hearing was held before Judge Bortner. See
N.T. Post-Sentence Hearing at 1. Following argument, it became clear that
Banks sought resentencing, asserting that Judge Ludgate had impermissibly
focused on the nolle prossed charges. Id. at 3-6. Following further
discussions, Judge Bortner declined to rule on Banks’ motion, concluding that
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6 A motion to modify a sentence imposed after a revocation proceeding does
“not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E). Here, Banks did not
file an appeal from the judgment of sentence within 30 days. However, his
appeal is nonetheless timely because, as discussed below, the court reinstated
Banks’ appellate rights.
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it should be resolved by Judge Ludgate. Id. at 14. In light of the unusual
circumstances, the court permitted Banks to request formally an extension of
time within which to file an amended motion. Id. at 14-16 (suggesting that
Banks alert court administration to the time constraints of Pa.R.Crim.P. 720).
Two weeks later, in April 2017, without express leave to do so, Banks filed an
amended post-sentence motion, which reiterated his assertion that the
sentence imposed was excessive in light of the nolle prossed charges and
noted that the Commonwealth and the court agreed that the sentencing issue
should be heard by Judge Ludgate. Banks’ Amended Post-Sentence Motion,
04/12/2017.
The court took no further action to resolve Banks’ post-sentence motion
or the amended motion. In May 2017, Banks pro se filed a petition for
collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546, asserting inter alia that he was sentenced based upon charges
nolle prossed. Banks’ PCRA Petition, 05/09/2018, at 3.
In response, the court issued an order scheduling a hearing to resolve
the post-sentence motion, the amended motion, as well as the PCRA petition.
In so doing, the court specifically acknowledged that Banks’ initial post-
sentence motion should have been denied as a matter of law but that no notice
of the denial was entered on the docket or forwarded to Banks. See PCRA Ct.
Order, at 1-2 (citing Pa.R.Crim.P. 720(B)(3)). Moreover, the court again
recognized the unusual circumstances of this case, in particular Judge
Ludgate’s temporary stewardship and unavailability. Id. at 2. In order to
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resolve the outstanding issues, Judge Bortner reassumed control of this case.
Id. at 2 (citing in support Commonwealth v. Lambert, 765 A.2d 306(Pa.Super. 2000) (suggesting that new judge may preside over “post-
conviction” proceedings in “the interests of justice”)).
In August 2017, following a hearing, the court granted Banks’ PCRA
petition and reinstated his appellate rights. PCRA Ct. Order, 08/22/2017. In
addition, the court noted that Banks’ amended post-sentence motion was
denied by operation of law but granted him immediate, supervised bail. Id.Banks timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement challenging Judge Ludgate’s authority to preside over the violation
hearing and discretionary aspects of the sentence imposed. See Banks’
Pa.R.A.P. 1925(b) Statement. The court filed a responsive opinion.7
Banks raises the following issues on appeal:
[1.] The [revocation] court erred in denying [Banks’] motion to
vacate his sentence and order [a] new sentencing hearing so [he]
could be resentenced before the original sentencing judge.
[2.] The [revocation] court abused its discretion when it imposed
an excessive sentence on [Banks] by considering charges and
their underlying facts[,] which had been nol[le] prossed by the
Commonwealth.
Banks’ Br. at 4.
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7 To be clear, following reinstatement of his appellate rights, Banks appealed
from the judgment of sentence imposed by the revocation court. In response,
Judge Bortner authored an opinion on behalf of the revocation court. See
Revocation Ct. Pa.R.A.P. 1925(a) Op. at 13.
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Banks challenges the revocation of his county IP sentence and the facts
relied upon in fashioning a new sentence.
Our Court has held that the revocation of a county intermediate
punishment sentence is equivalent to the revocation of
probation[.] An intermediate punishment sentence imposed
pursuant to 42 Pa.C.S. § 9763 … may be revoked where the
specific conditions of the sentence have been violated. “Upon
revocation, 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. § 9773[.] This rule of resentencing is
analogous to that set forth for resentencing following revocation
of probation. … Moreover, revocation of probation occurs, as does
revocation of an intermediate punishment sentence, where it has
been found the defendant has violated the terms of his sentence.
Commonwealth v. Melius, 100 A.3d 682, 685-86 (Pa.Super. 2014)
(formatting modified; some internal citations removed).
Revocation of a county IP sentence is governed by 42 Pa.C.S. § 9773,
which provides in relevant part:
Revocation. -- The court may revoke a sentence of county
intermediate punishment upon proof of a violation of specific
conditions of the sentence. Upon revocation and subject to
section 9763(d), 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. § 9773(b). In an appeal, we may review the validity of the
revocation proceedings, as well as the legality and discretionary aspects of
any new sentence imposed. Commonwealth v. Cartrette, 83 A.3d 1030,
1033-34 (Pa.Super. 2013) (en banc).
In his first issue, Banks contends the revocation court erred in denying
his post-sentence motion to vacate his sentence and conduct a new hearing
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before “the original sentencing judge.” Bank’s Br. at 15. Essentially, Banks
challenges the authority of Judge Ludgate, a visiting judge with no prior
involvement in his case, to preside over his violation hearing. See id. at 12.
According to Banks, absent extraordinary circumstances not present here,
Judge Bortner was the appropriate judge to preside. See id. at 15-16 (citing
in support Commonwealth v. McNeal, 120 A.3d 313 (Pa.Super. 2015));
Pa.R.Crim.P. 700). Proceeding from this premise, Banks further argues that
Judge Bortner erred when he invoked the coordinate jurisdiction rule8 and
declined to rule on Banks’ post sentence motion. Id. at 15. According to
Banks, Judge Ludgate’s consideration of allegations underlying the nolle
prossed charges constituted a manifest injustice, i.e., an exception to the
coordinate jurisdiction rule. Id. at 18. Thus, Banks concludes, he is entitled
to a new violation hearing. Id. at 22.
Initially, we observe that Judge Bortner was not, in fact, the original
sentencing judge in this case. The certified record reveals that Judge Kelley
accepted Banks’ guilty plea, reviewed a presentence investigation, and
imposed sentence. See N.T. Plea; N.T. Sentencing. Judge Bortner was
assigned supervision of Banks’ case sometime thereafter. See, e.g., Dkt No.
CP-67-CR-0001472-2015, Filings Information, Registry Entry, 10/22/2015.
We decline to reject Banks’ arguments on this ground, however, as it is clear
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8 “[T]he coordinate jurisdiction rule commands that upon transfer of a matter
between trial judges of coordinate jurisdiction, a transferee trial judge may
not alter resolution of a legal question previously decided by a transferor trial
judge.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003).
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that Judge Bortner was the regularly assigned judge since October 2015, and
apart from his brief medical absence, has had significant involvement with this
case.
In McNeal, this Court vacated the judgment of sentence imposed where
a judge, assigned to adjudicate new charges incurred by a probationer, also
assumed jurisdiction over the probation matter. McNeal, 120 A.3d at 322-
25. In so doing, we relied upon Pennsylvania Rule of Criminal Procedure 700,
which mandates that “the judge who presided at the trial or who received the
plea of guilty or nolo contendere shall impose sentence unless there are
extraordinary circumstances which preclude the judge’s presence.”
Pa.R.Crim.P. 700; see McNeal, 120 A.3d at 323. Recognizing the “obvious
value” in a sentencing judge’s familiarity with a defendant’s character and the
nature of his crimes, we reasoned as follows:
It is axiomatic that the judge who presides over the trial, or who
accepts a guilty plea based upon a recitation of the facts
underlying the pleaded-to crime, is the judicial officer best
equipped to assess the nature of the defendant and the crime itself
before imposing sentence.
Rule 700 does not state that its terms apply to sentencing
following a probation revocation. However, our General Assembly
has instructed that, upon a probation revocation, “the sentencing
alternatives available to the court shall be the same as were
available at the time of initial sentencing.” 42 Pa.C.S. § 9771(b).
In other words, in practical effect, a judge imposing sentence after
finding that a defendant has violated probation is no different from
a judge imposing sentence in the first instance. For this precise
reason, we discern no principled difference between a judge
imposing an original sentence and one imposing a probation
violation sentence, and certainly no difference meaningful enough
to exempt the latter from the dictates of Rule 700.
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McNeal, 120 A.3d at 323. Thus, we concluded that Rule 700 applies in the
revocation context. Id.
In McNeal, we had no opportunity to examine what may constitute
extraordinary circumstances. Id. (observing no “extraordinary or even
pedestrian” circumstances); but see Commonwealth v. Williams, 375 A.2d
155, 157-58 (Pa.Super. 1977) (recognizing that stroke, “which disabled [the
initial jurist] for some time, and which thereafter precluded his involvement
in the rigorous duties inherent in the criminal court, certainly constituted
‘extraordinary circumstances’ within the meaning of the Rule”). Nevertheless,
we specifically rejected judicial economy as sufficient justification. McNeal,
102 A.3d at 324 (concluding that convenience and efficiency do not equate
with extraordinary circumstances required by rule).
Here, Banks suggests that Judge Bortner’s medical absence fails to
demonstrate extraordinary circumstances. Banks’ Br. at 16. In support of
this suggestion, he notes that Judge Bortner was readily available three
months later, i.e., in March 2017, when he presided over a hearing on Banks’
post-sentence motion. Id.; see also N.T. Post Sentence Hearing at 1.
Moreover, we observe that Judge Bortner signed the order scheduling this
hearing in February 2017, one month earlier. See Revocation Ct. Order,
02/14/2017.
In his opinion filed on behalf of the revocation court, Judge Bortner
contends that it was proper for Judge Ludgate to assume control over Banks’
revocation proceedings, as he was recuperating from surgery. Revocation Ct.
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Pa.R.A.P. 1925(a) Op. at 6 (citing in support McNeal, 120 A.3d at 323). Judge
Bortner provides no further details describing his absence; thus, it is not clear,
for example, whether his absence was planned in advance, whether his
surgery was elective or the result of an emergency, the seriousness of his
illness or injury, or whether his absence was intended to be short- or long-
term. In similarly circumspect language, the Commonwealth merely echoes
the court’s contention, suggesting that “surgery and resulting recuperation”
necessitated Judge Ludgate’s assignment. Commonwealth’s Br. at 11 (citing
in support Williams, supra).Though McNeal contemplated that illness may constitute an
extraordinary circumstance, see McNeal, 120 A.3d at 323, as noted
previously, we did not examine this possibility in any detail. To the contrary,
in McNeal, we characterized the transfer of the case as “mere happenstance”
and “random chance,” the result of a conversation between jurists on a
completely unrelated civil matter. Id. at 324. Moreover, an illness or some
other medical absence could be quite serious, as in Williams, or a rather
mundane affair, certainly not extraordinary. We reiterate that in Williams,
the judge’s absence was caused by “the sudden onset of illness,” which
apparently “thereafter precluded his involvement in the rigorous duties
inherent in the criminal court.” Williams, 375 A.2d at 158. Thus, in our view,
based upon the reasoning in McNeal and Williams, a temporary and planned
medical absence would not likely constitute an extraordinary circumstance
sufficient to meet the requirements of Rule 700.
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Here, the record is not sufficiently clear that we may determine whether
the circumstances of this case more closely align with McNeal or Williams.9
Nevertheless, we need not remand for further development of the record, for
we conclude that Banks is not entitled to a new violation hearing, as he
consented to Judge Ludgate’s authority to preside over this case.
Again, we turn to McNeal for guidance. During pretrial discussions in
that case concerning the grading of a criminal mischief charge, the presiding
judge announced that he was assuming supervision of the defendant’s
probation matter and warned the defendant that if he found him guilty of the
criminal mischief charge, now graded as a summary offense, it would
constitute a violation of the defendant’s probation. McNeal, 120 A.3d at 317.
The defendant voiced concern over the reassignment, which was rejected by
the presiding judge. Id. at 319. The matter proceeded to trial; a jury
acquitted the defendant of all charges before it; but the presiding judge found
him guilty of the outstanding criminal mischief charge. Id. at 319-20. Prior
to sentencing, the defendant filed a motion for extraordinary relief,
challenging the reassignment of his probation matter. Id. Finding no
circumstances, “whether extraordinary or even pedestrian,” that would
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9 In light of the pointed language used by this Court in McNeal, we stress that
we intend no such criticism of Judge Bortner’s role in this matter. We merely
conclude that the record does not disclose sufficient detail of the
circumstances leading to his absence to determine whether they would
constitute extraordinary circumstances. In other words, it is not clear whether
the temporary reassignment of this matter to Judge Ludgate was a matter of
convenience or judicial economy, as in McNeal, or truly extraordinary
circumstances, as in Williams.
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empower one judge “to reach out and take control” over another’s case, we
observed that “[o]nly the consent of both parties would permit such a
maneuver.” McNeal, 120 A.3d at 323.
Here, when questioned whether he was willing to proceed with the
revocation hearing before Judge Ludgate, counsel for Banks offered no
resistance and lodged no objection, responding simply:
[BANKS’ COUNSEL]: Yeah, we can proceed. That’s fine.
N.T. Revocation at 3. Further, unlike the defendant in McNeal, Banks delayed
any challenge to Judge Ludgate’s supervision until after she had imposed
sentence. See Banks’ Post-Sentence Motion. For these reasons, we conclude
that Banks’ reliance upon McNeal is misplaced. Specifically, Banks consented
to Judge Ludgate’s authority to preside over his violation hearing, and we
deem waived any challenge thereto. McNeal, 120 A.3d at 323; see also
Cartrette, 83 A.3d at 1033-34.10
In his second issue, Banks contends that the revocation court imposed
an excessive sentence. Banks’ Br. at 20. According to Banks, the court
improperly considered and was “unusually fixated” on facts alleged in support
of the nolle prossed charges. Id. Suggesting that IP revocation is improper
when it is based solely upon an arrest, Banks notes the longstanding
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10 In light of our conclusions, we need not address the merit of Banks’
argument regarding the coordinate jurisdiction rule.
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preference in Pennsylvania to defer final revocation proceedings11 until after
new charges are resolved. Id. at 20-21 (citing in support Commonwealth
v. Brown, 469 A.2d 1371 (Pa. 1983)). Thus, Banks concludes, the revocation
court abused its discretion. Id. at 21.
Banks challenges discretionary aspects of his sentence. Such a claim
is not appealable as of right. Commonwealth v. Colon, 102 A.3d 1033,
1042 (Pa.Super. 2014); Cartrette, 83 A.3d at 1042. Rather, an appellant
must petition this Court for allowance of appeal pursuant to 42 Pa.C.S. § 9781.
Colon, 102 A.3d at 1042. Before we exercise jurisdiction to reach the merits
of a claim, we must determine: (1) whether the appeal is timely; (2) whether
the appellant has preserved his issue; (3) whether his brief includes a concise
statement of the reasons relied upon for allowance of an appeal with respect
to the discretionary aspects of his sentence; and (4) whether the concise
statement raises a substantial question whether the sentence is inappropriate
under the Sentencing Code. Id. at 1042-43; see also Pa.R.A.P. 2119(f)
(mandating that an appellant “set forth in a separate section … the reasons
relied upon for allowance of appeal”). Only if the appeal satisfies each of these
four requirements may we proceed to decide the substantive merits of the
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11 See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (outlining a two-step
process to determine (1) whether probable cause exists to believe a violation
has occurred, i.e., a Gagnon I hearing, and (2) whether, in fact, a violation
has occurred, a Gagnon II hearing); see also Commonwealth v. Sims,
770 A.2d 346, 349-50 (Pa.Super. 2001).
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claim. Colon, 102 A.3d at 1043. In so doing, we review the sentence imposed
by the revocation court for an abuse of discretion. Id.
Following reinstatement of his appellate rights, Banks timely filed a
notice of appeal; he properly preserved his issue in a post-sentence motion;
and his brief contains a concise statement of the reasons on which he relies.
Banks’ Br. at 13-14. Thus, we must determine whether Banks has raised a
substantial question.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Commonwealth v. Derry, 150 A.3d 987, 991 (Pa.Super. 2016) (formatting
modified; internal citations and quotation marks omitted). We do not accept
bald assertions that a sentence is excessive. Id.Banks asserts that the revocation court relied upon an impermissible
factor in sentencing him. Banks’ Br. at 13 (citing in support Commonwealth
v. Allen, 24 A.3d 1058 (Pa.Super. 2011)). It is well settled that “a claim that
the sentencing court relied on impermissible factors in sentencing raises a
substantial question.” Commonwealth v. Bromley, 862 A.2d 598, 605
(Pa.Super. 2004) (citing Commonwealth v. Kraft, 737 A.2d 755 (Pa.Super.
1999)).
In support of this assertion, Banks suggests that it was impermissible
for the revocation court to consider his arrest on charges that were nolle
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prossed prior to the revocation hearing. Banks’ Br. at 13 (citing in support
Commonwealth v. Sims, 770 A.2d 346 (Pa.Super. 2001)), 18, 20.
In our view, Sims is inapposite. In that case, a defendant serving a
probationary sentence incurred new charges. Sims, 770 A.2d at 348. The
defendant waived his right to a preliminary revocation hearing. Id.Thereafter, failing to present substantive evidence in support of the new
charges, the Commonwealth suggested that the defendant’s waiver was
sufficient to establish that a violation had occurred, and the revocation court
agreed. Id. at 349. On appeal, we reversed:
We know of no law that allows for probation to be revoked solely
on the basis of an arrest and waiver of a preliminary hearing. On
the contrary, we have found that an arrest alone, without facts to
support the arrest, is not sufficient to revoke probation or parole.
Id. at 352.
Our analysis in Sims focused on the Commonwealth’s burden of proof
during revocation proceedings, an issue irrelevant here, as Banks does not
challenge the revocation of his IP sentence. See id. at 349-52. Moreover,
we did not hold that it is impermissible for a revocation court to consider a
probationer’s arrest, merely that evidence of an arrest, absent facts to support
it, is insufficient to establish a violation. Id. Finally, there is no discussion –
and certainly no prohibition - of such evidence’s relevance to sentencing
considerations. Id.; see also 42 Pa.C.S. § 9771(c)(2) (mandating that the
court consider conduct by the probationer that indicates likelihood that he will
commit another crime if not imprisoned).
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Little more persuasive is Banks’ reliance upon our Supreme Court’s
decision in Brown. See Banks’ Br. at 20-21. There, a probationer received
new charges. Brown, 469 A.2d at 1372. The Commonwealth deferred
revocation proceedings until after their disposition. Id. The trial resulted in
an acquittal by jury, but the Commonwealth pursued revocation proceedings
nonetheless. Id. The lower court revoked probation and imposed a new
sentence, and this Court affirmed. Id.
The Supreme Court reversed. Id. Recognizing double jeopardy
implications, the Court concluded that the Commonwealth was estopped from
proceeding with revocation proceedings where their sole basis was new
charges for which a probationer had been acquitted. Id. at 1376. The Court
also considered and rejected the Commonwealth’s suggestion that the more
lenient burden of proof in revocation proceedings should afford them a
“second bite of the apple.” Id.
Thus[,] the problem presented in this law suit is merely whether
the Commonwealth, after having elected to defer to the judgment
of the jury, should be given the additional opportunity to relitigate
the same issue applying a preponderance of the evidence test.
We do not believe that there is any justification for such a
disparity.
Id. at 1377-78.
However, we cannot ignore that the precise issue of fact resolved by the
jury in Brown was of particular importance to the Supreme Court:
In this matter at the trial of the criminal charge[,] the appellant
defended on the ground of alibi. The defense at trial produced
evidence to establish that he was elsewhere at the time of the
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alleged robbery. There was no dispute that a robbery of the victim
had occurred. Thus[,] the only rational explanation to be drawn
from the general verdict of acquittal was that the jury concluded
that appellant did not participate in the criminal act of robbing the
victim.
It is equally beyond dispute on this record that the sole basis
offered by the Commonwealth to support its request for the
revocation of the probation was the accusation that appellant did
in fact participate in the robbery for which he had previously been
tried and acquitted. Thus the Commonwealth, by election, chose
to relitigate at the revocation hearing the exact same issue that
had been decided against it in the criminal trial. This, therefore,
is a clear case of an attempt to raise an issue of ultimate fact that
has previously been litigated and ruled adversely to the
Commonwealth.
Id. at 1373.
Here, no similar factual resolution occurred; that is, a fact finder did not
consider and reject Banks’ participation in alleged criminal activity. Nor is the
procedural posture analogous. The charges against Banks were nolle prossed,
and that is quite different from an acquittal.
A nolle prosequi is a voluntary withdrawal by a prosecuting
attorney of proceedings on a particular criminal bill or information,
which at anytime in the future can be lifted upon appropriate
motion in order to permit a revival of the original criminal bill or
information. Since a nolle prosequi acts neither as an acquittal
nor a conviction, double jeopardy does not attach to the original
criminal bill or information.
Commonwealth v. Ahearn, 670 A.2d 133, 135 (Pa. 1996) (citations
omitted) (emphasis added). Thus, the double jeopardy concerns recognized
in Brown are not present here.
The Commonwealth was not estopped from introducing evidence of
Banks’ arrest, the charges filed, or the factual allegations in support thereof.
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The revocation court’s consideration of this evidence was not only permissible,
but also required before it could impose a sentence of total confinement. For
these reasons, we reject Banks’ assertion that the revocation court relied upon
an impermissible factor in sentencing him. See Banks’ Br. at 13-14.
Based upon the revocation court’s permissible consideration of this
evidence, and Banks’ failure to develop any further argument asserting that
his sentence is excessive, we discern no abuse of the court’s discretion in
sentencing Banks. See Colon, 102 A.3d at 1043.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2018
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