Com. v. Williams, R. ( 2017 )

J-A17021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WILLIAMS :
:
Appellant : No. 730 EDA 2016
Appeal from the Judgment of Sentence February 17, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011614-2007
BEFORE: GANTMAN, P.J., RANSOM, J. and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 08, 2017
Appellant, Robert Williams, appeals from the judgment of sentence of
six to twelve months of county incarceration plus six years of reporting
probation, entered on February 17, 2016, following the revocation of his
probation for technical violations. We affirm.
On August 28, 2008, Appellant was found guilty of possession with
intent to deliver a controlled substance, intentional possession of a
controlled substance, carrying a firearm without a license, carrying a firearm
in public in Philadelphia, possession of an instrument of crime, possession of
a loaded weapon, and simple assault.1 The trial court sentenced Appellant
to an aggregate of eleven and one-half to twenty-three months of county
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1
See 35 P.S. §§ 780-113(a)(30), 780-113 (a)(16); 18 Pa.C.S. §§ 6106(1),
6108, 907(a), 6106.1(a), and 2701(a), respectively.
*
Retired Senior Judge assigned to the Superior Court.
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incarceration, plus seven years reporting probation. In June 2009, Appellant
was released from prison and paroled to house arrest with electronic
monitoring and additional restrictions.2 On December 15, 2009, the house
arrest order was vacated by the court and probation continued.
Between 2010 and 2014, Appellant appeared before the court for a
number of technical violations. During this time, Appellant’s probation was
revoked in July 2014; he was sentenced to an aggregate term of three to six
months of county incarceration followed by five years of reporting probation.
In December 2014, Appellant was granted early parole and released from
county jail.
In December 2015, Appellant again appeared before the trial court for
technical violations of probation. Specifically, the trial court expressed
concern that Appellant was not following probation reporting requirements or
travel restriction requirements and that he submitted a sample of cold water
for a urinalysis. See Trial Court Opinion (TCO), 9/19/16, at 16. In February
2016, the court revoked Appellant’s probation and sentenced him to six to
twelve months of county incarceration followed by six months of reporting
probation.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The court issued a responsive opinion.
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2
Appellant was given permission to work but ordered to earn his GED and
undergo drug treatment.
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Appellant presents the following questions for our review:
1. Whether the trial court committed legal error and abused
its discretion in the procedures utilized in sentencing Appellant,
including in imposing a six-year term of probation, when Mr.
Williams’ prior record, time already served, and the nature of the
underlying offense are considered?
2. Whether the trial court committed legal error and abused
its discretion when it determined that Appellant committed a
technical violation of his probation despite testimony that the lab
technician did not follow the standard procedures of the adult
parole department by refusing to test Appellant’s urine specimen,
throwing that specimen in the trash can, and refusing to permit
Appellant to give a second sample despite Appellant’s request to
do so?
Appellant’s Brief at 6.3
This Court’s standard of review regarding an appeal from a sentence
imposed following the revocation of probation is as follows:
[o]ur review is limited to determining the validity of the
probation revocation proceedings and the authority of the
sentencing court to consider the same sentencing
alternatives that it had at the time of the initial sentencing.
Commonwealth v. Perreault, 930 A.2d 553 (Pa. Super. 2007)(internal
citation omitted).
Appellant first claims that the court committed legal error and abused
its discretion in imposing a sentence that was manifestly excessive. See
Appellant’s Brief at 21-22.
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3
Appellant’s brief does not address his issues in the order they are listed in
the Statement of Questions. We will address them in the order listed.
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Appellant challenges the discretionary aspects of his sentence, a
challenge which does not entitle him to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Prior to addressing a
discretionary challenge, this Court engages in a four-part analysis: 1)
whether the appeal is timely; 2) whether Appellant preserved his issue; 3)
whether Appellant’s brief contains a concise statement of the reasons relied
upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether
that statement raises a substantial question that the sentence is
inappropriate under the sentencing code. See Commonwealth v. Austin,
66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).
Although Appellant timely filed a notice of appeal, he did not preserve
his claim at sentencing or in a timely post-sentence motion. See
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (noting
that issues challenging the discretionary aspects of a sentence must be
raised in a post-sentence motion or by presenting the claim to the court
during sentencing proceedings; absent these efforts the issue is waived).
Accordingly, Appellant has waived his challenge to the discretionary aspects
of his sentence. Id.Next, Appellant purports to challenge the sufficiency of the evidence
presented at the revocation hearing. First, he claims that the evidence was
insufficient to support his revocation because Appellant’s submission of cold
water as a urinalysis sample was not “willful conduct” amounting to a
probation violation. See Appellant’s Brief at 28-29. Second, he claims that
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there was no evidence for ten of the eleven travel violations. See
Appellant’s Brief at 25.
When reviewing a sufficiency challenge to revocation, we examine
whether, when viewed in the light most favorable to the Commonwealth, the
evidence and its inferences supported revoking probation. See
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014).
Revocation of probation will be upheld where the Commonwealth proved by
a preponderance of evidence that a defendant violated his probation. See
Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011).
Willfulness of conduct is not a requirement for probation revocation; a court
may revoke upon proof of violation of specified conditions of probation. See
42 Pa. C.S. 9771(b).
Appellant was required to submit a urine sample for a mandatory drug
screen as a term of his probation. TCO at 17. Appellant admitted to
submitting a false sample for the urinalysis in violation of his terms of
probation. See N.T., 12/10/15, at 49. This admission alone is sufficient to
find a violation of probation. Accordingly, Appellant’s claim fails.
Finally, Appellant’s 1925(b) statement does not raise the issue of the
sufficiency of the evidence regarding the other ten violations. Thus, he has
waived this claim for purposes of appeal. See Commonwealth v. Castillo,
888 A.2d 775, 780 (Pa. 2005); see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues
not included in the Statement and/or not raised in accordance with the
provision of this paragraph (b)(4) are waived.”). The evidence was sufficient
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to support the revocation of probation, and Appellant is not entitled to relief.
Colon, 102 A.3d at 1041.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2017
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