Com. v. Worsham, T. ( 2018 )

J-S66021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
TYRONE WORSHAM, :
: No. 120 WDA 2017
Appellant
Appeal from the Judgment of Sentence December 15, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011365-2013,
CP-02-CR-0011369-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 13, 2018
Appellant, Tyrone Worsham, appeals from the Judgment of Sentence
entered in the Allegheny County Court of Common Pleas following the
revocation of his probation. After careful review, we affirm.
On December 5, 2013, Appellant pleaded guilty to one count of Criminal
Trespass1 at docket No. CP-02-CR-0011365-2013 for a confrontation with his
ex-fiancée (“Victim”) where Appellant forcibly entered her home, threatened
her, and destroyed her cell phone. Pursuant to a plea agreement, the trial
court sentenced Appellant to 11 months and 29 days’ to 1 year, 11 months
and 28 days’ incarceration, followed by a period of 3 years’ probation. The
____________________________________________
1 18 Pa.C.S. § 3503(a)(1)(ii).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S66021-17
trial court granted Appellant 120 days of credit for time served from August
8, 2013 to December 5, 2013.
Also on December 5, 2013, Appellant pleaded guilty to Criminal
Trespass, Stalking, and Criminal Mischief2 at Docket No. CP-02-CR-0011369-
2013 for a second incident concerning Victim, occurring four days later, where
Appellant entered Victim’s home without permission, destroyed property in
Victim’s bedroom, and then contacted Victim to gloat and threaten her.
Pursuant to a plea agreement, the trial court sentenced Appellant to a period
of 2 years’ probation to be served concurrently with the sentence imposed at
docket No. CP-02-CR-0011365-2013. Appellant did not file post-sentence
motions or a direct appeal.
Appellant remained incarcerated until March 20, 2014, when authorities
transferred him to alternative housing at the Renewal Center. Eleven days
later, on May 31, 2014, Appellant absconded from the Renewal Center and
remained at large for almost two years until authorities apprehended him on
April 28, 2016.
On December 15, 2016, after a violation of probation (“VOP”) hearing,
the trial court revoked Appellant’s probation and sentenced Appellant to a new
term of 1½ to 3 years’ imprisonment on each docket, to be served
concurrently (“VOP Sentence”).
____________________________________________
218 Pa.C.S. § 3503(a)(1)(i); 18 Pa.C.S. § 2709.1(a)(1); and 18 Pa.C.S. §
3304(a)(5).
-2-
J-S66021-17
Appellant filed a timely Motion to Reconsider Sentence, which the trial
court denied on January 4, 2017. On January 13, 2017, Appellant filed a
Notice of Appeal. Both the trial court and Appellant complied with Pa.R.A.P.
1925.
Appellant raises the following issues on appeal:
I. Was the revocation sentence illegal because [Appellant]
never received credit for the 106 days that he was
incarcerated from December 5, 2013 to March 20, 2014?
II. Did the trial court violate 42 [Pa.C.S.] § 9721(B), 42
[Pa.C.S.] § 9725 and 42 [Pa.C.S.] § 9771(C) when it
issued an excessive sentence of total confinement that
failed to adequately consider and apply all of the relevant
sentencing criteria, including [Appellant]’s character and
rehabilitative needs, the gravity of the offense/violation
and the protection of the public?
Appellant’s Brief at 7 (some capitalization omitted).
When we consider an appeal from a sentence imposed following the
revocation of probation, we review for an error of law or abuse of discretion.
Commonwealth v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010). Generally,
our scope of review is limited to “the validity of the hearing, the legality of the
final sentence, and if properly raised, the discretionary aspects of the
appellant’s sentence.” Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.
Super. 2010) (citing Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa.
Super. 2006)). This Court “must accord the sentencing court's decision great
weight because it was in the best position to review the defendant's character,
defiance[,] or indifference, and the overall effect and nature of the crime.”
Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super. 2005). Also, upon
-3-
J-S66021-17
sentencing following a revocation of probation, the trial court may impose any
sentence so long as the sentence does not exceed the maximum sentence
that the trial court could have imposed when the trial court originally
sentenced the defendant. Commonwealth v. Bowser, 783 A.2d 348, 349
(Pa. Super. 2001). In order for this Court to find an abuse of discretion,
Appellant must prove that, when sentencing the Appellant after his violation
of probation, the sentencing court “acted with manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.
2010).
In his first issue, Appellant avers that the trial court should have credited
his VOP Sentence with the time that he served on his original sentence after
conviction – 106 days, from December 5, 2013 until March 20, 2014.
Appellant’s Brief at 15. We disagree.
A challenge to the trial court's failure to award credit for time served
prior to any type of sentencing is a challenge to the legality of a sentence.
Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). The
question of whether a trial court imposed an illegal sentence is a question of
law and, therefore, our review is de novo. Commonwealth v. Infante, 63
A.3d 358, 363 (Pa. Super. 2013).
The Pennsylvania Sentencing Code provides that a trial court shall give
a defendant credit for time spent incarcerated and states, in relevant part:
-4-
J-S66021-17
Credit against the maximum term and any minimum term shall be
given to the defendant for all time spent in custody as a result of
the criminal charge for which a prison sentence is imposed or as
a result of the conduct on which such a charge is based. Credit
shall include credit for time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an appeal.
42 Pa.C.S. § 9760(1).
Where a court, however, originally imposes a sentence that includes
both incarceration and probation and the defendant then violates probation,
the trial court, upon re-sentencing the defendant, is not compelled to grant
to the defendant credit for the time the defendant was incarcerated in the
original sentence. Crump, supra at 1284 (emphasis added). The only
limitation when re-sentencing the defendant is that the trial court may not
exceed the maximum sentence that the Sentencing Code authorizes. Id. See
also Commonwealth v. Yakell, 876 A.2d 1040, 1043 (Pa. Super. 2005)
(concluding that the trial court “was within its right not to grant any credit for
the time served on the original sentence” when resentencing defendant
following his parole and probation revocation because the aggregate sentence
was less than the statutory maximum); Infante, supra at 367 (holding that
in the context of sentencing after probation revocation, a defendant is not
automatically granted credit for time served while incarcerated on the
original sentence unless the court imposes a new sentence that would result
in the defendant serving time in excess of the statutory maximum).
Instantly, the Sentencing Code authorized the trial court to impose a
statutory maximum sentence of 10 years’ incarceration for the count of
-5-
J-S66021-17
Criminal Trespass as a felony of the second degree on docket No. CP-02-CR-
0011365-2013. See 18 Pa.C.S. § 1103(2). On docket No. CP-02-CR-
0011369-2013, the Sentencing Code empowered the trial court to impose a
statutory maximum sentence of 7 years’ incarceration for the count of Criminal
Trespass as a felony of the third degree, 5 years’ incarceration for Stalking as
a misdemeanor of first degree, and 1 year of incarceration for Criminal
Mischief as a misdemeanor of the third degree. See 18 Pa.C.S. § 1103(3);
18 Pa.C.S. § 1104(1),(3). While the court could have sentenced Appellant to
up to 23 years’ incarceration, it only imposed an aggregate sentence of 1½ to
3 years on both dockets, a sentence that was clearly within the statutory limit
and did not result in Appellant serving any time in excess of the statutory
limit. Accordingly, the trial court did not abuse its discretion when imposing
the VOP Sentence.
Appellant cites Johnson, supra, to support his claim that the trial court
erred in not crediting the time he was incarcerated in the original sentence to
his VOP Sentence. In Johnson, the defendant pled guilty and the trial court
sentenced him to a period of probation. Johnson, supra at 1002. The
defendant, however, was incarcerated until he pled guilty. Id. When the
defendant violated his probation and was sentenced to a period of
incarceration, this Court held that he was entitled to credit for time served on
his VOP sentence because he was incarcerated before he pled guilty and the
trial court originally only sentence him to probation. Johnson, supra at
1002-03, 1004 n.3, 1005. Significantly, we recognized that if, in fact, the trial
-6-
J-S66021-17
court had originally imposed a sentence of both incarceration and probation,
the trial court could not have given the defendant credit for time served on
the VOP sentence. Id. at 1004 n.3.
In this case, the trial court’s original sentence included both
incarceration and probation. Therefore, there is no legal basis to credit the
VOP Sentence with the time Appellant served in the original sentence.
Thus, we conclude that the sentencing court did not abuse its discretion
or err as a matter of law in not giving Appellant his requested credit for time
served.
In his second issue, Appellant challenges the discretionary aspects of
his sentence. Appellant’s Brief at 7. “Where an appellant challenges the
discretionary aspects of a sentence, there is no automatic right to appeal and
an appellant's appeal should be considered a petition for allowance of appeal.”
Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009) (quotation
and citation omitted). An appellant must satisfy a four-part test in order to
invoke our jurisdiction to review the claim:
(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
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.] § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted). Moreover, an appellant waives any objections to the discretionary
-7-
J-S66021-17
aspects of a sentence if he or she does not raise those objections at a
sentencing hearing or in a motion to reconsider sentence. Id.
Instantly, Appellant filed a timely Notice of Appeal, filed a timely Motion
to Reconsider Sentence, and complied with Pa.R.A.P. 2119(f). We note that
Appellant failed to raise any objections during his sentencing and preserved
only two issues in his Motion to Reconsider Sentence: (1) the sentencing court
imposed an excessive sentence; and (2) the sentencing court failed to
consider mitigating factors. See Motion to Reconsider Sentence, filed
12/16/16; Moury, supra at 170.
We now determine whether Appellant raised a substantial question. It
is well-settled that this Court must evaluate and determine the challenges that
constitute a substantial question 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.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.
Super. 2000) (citation and quotation omitted).
In particular, a defendant does not raise a substantial question when he
argues that the sentence imposed after the court revoked his probation was
manifestly excessive and violated the sentencing code when the sentence did
not exceed the sentence authorized by the Sentencing Code.
Commonwealth v. Coolbaugh, 770 A.2d 788, 792-93 (Pa. Super. 2001).
-8-
J-S66021-17
See Commonwealth v. Coss, 695 A.2d 831, 833-34 (Pa. Super. 1997)
(holding that when the sentence imposed falls within the statutory
recommendation, an appellant’s claim that a sentence is manifestly excessive
fails to raise a substantial question).
Also, an argument that the trial court failed to consider mitigating
factors in favor of a lesser sentence does not present a substantial question
appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254,
1257-58 (Pa. Super. 2004). See also Commonwealth v. Griffin, 804 A.2d
1, 9 (Pa. Super. 2002); Commonwealth v. Williams, 562 A.2d 1385, 1388
(Pa. Super. 1989) (en banc) (concluding that an allegation that the sentencing
court did not adequately consider various factors is, in effect, a request that
this court substitute its judgment for that of the lower court in fashioning a
defendant’s sentence)
Here, Appellant claims that, even though his sentence was less than the
statutory maximum, the trial court imposed an excessive sentence that did
not adequately consider the protection of the public, the gravity of offense in
relation to impact on victim and community, and Appellant’s rehabilitative
needs pursuant to 42 Pa.C.S. § 9721(b). See Appellant’s Brief at 24-25.
Appellant also avers that the trial court failed to consider the mitigating
evidence of Appellant’s work history, dedication to his family, completion of
Batterer’s Intervention program, and lack of new convictions since 2013. Id.
at 24-25.
-9-
J-S66021-17
These arguments fail to raise a substantial question appropriate for our
review and, therefore, we lack jurisdiction to consider them.3
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2018
____________________________________________
3 Even if we had jurisdiction to review these arguments, the arguments would
fail. The trial court had the benefit of a PSI report and our Supreme Court has
held unequivocally that “[w]here pre-sentence reports exist, we shall continue
to presume that the sentencing judge was aware of relevant information
regarding the defendant's character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988). This Court “may not re-weigh the significance placed on each
factor by the sentencing judge.” Commonwealth v. Williams, 69 A.3d 735,
742 (Pa. Super. 2013). The fact that Appellant disagrees with the weight the
trial court gave to the mitigating evidence does not render the sentence
imposed an abuse of discretion. See Marts, supra at 615.
- 10 -