Com. v. Sterner, S. ( 2018 )

J-A05025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
STEVEN D. STERNER :
: No. 257 EDA 2017
Appellant
Appeal from the Judgment of Sentence October 11, 2016
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003642-2010,
CP-09-CR-0005114-2013, CP-09-CR-0008082-2010,
CP-09-CR-0008083-2010
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MARCH 02, 2018
Steven D. Sterner (Appellant) appeals pro se from the judgment of
sentence imposed following revocation of his probation. We affirm.
The pertinent facts and procedural history may be summarized as
follows: On April 26, 2011, Appellant pled guilty at Docket No: 8083-2010 to
robbery, simple assault, theft by unlawful taking, and loitering and prowling.1
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118 Pa.C.S.A. §§ 3701(a)(1)(iv), 2701(a)(1), 3921(a) and 5506,
respectively. Also, between 2010 and 2013, Appellant was convicted of
additional offenses at three other docket numbers as follows:
Docket No. 8082 of 2010 – criminal mischief (18 Pa.C.S.A. §
3304(a)(5)).
Docket No. 3642 of 2010 – Recklessly Endangering Another Person (18
Pa.C.S.A. § 2705); Disorderly Conduct (18 Pa.C.S.A. § 5503(a)(4));
____________________________________
*Former Justice specially assigned to the Superior Court.
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Trial Court Opinion, 9/20/17, at 1. The trial court sentenced Appellant to six
to 23 months of imprisonment plus two years of probation, and imposed
various special conditions including instructions that Appellant comply with
mental health treatment, have no contact with the victim, and complete a
domestic violence program. Id. at 1-2.
On October 17, 2013, after Appellant violated the terms of his probation,
the trial court revoked his probation and resentenced him to a new two-year
probationary term. Id. at 2. Appellant subsequently failed to comply with
the conditions of his probation, and the trial court issued a warrant for his
arrest in May of 2014. On June 23, 2014, the trial court found Appellant in
violation of his probation, and ordered him to continue serving his
probationary sentence. Id. Over the course of the aforementioned
proceedings, the trial court repeatedly ordered Appellant to undergo
psychiatric and psychological evaluations and obtain mental health treatment,
and committed Appellant to Norristown State Hospital for mental health
reasons. Id.
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Criminal Mischief (18 Pa.C.S.A. § 3304(a)(2)), and Criminal Trespass
(18 Pa.C.S.A. § 3503(b.1)(1)(iii)).
Docket No. 5114 of 2013 – Possession of a Controlled Substance (35
P.S. § 780-113(a)(31)); Possession of Drug Paraphernalia (35 P.S. §
780-113(a)(32)), Resisting Arrest (18 Pa.C.S.A. § 5104) and Disorderly
Conduct (18 Pa.C.S.A. § 5503(a)(4)).
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On March 29, 2016, the Commonwealth requested a probation violation
hearing after Appellant once again incurred new criminal charges. See
Praecipe for Probation Violation Hearing, 3/29/16. A hearing commenced on
June 3, 2016 on a myriad of probation and parole violations at all four docket
numbers.2 That same day, the trial court again ordered that Appellant
undergo a mental health evaluation and continued the probation revocation
proceeding. Id. at 3; Trial Court Order, 6/3/16.
Following the trial court’s receipt of a mental health report, the hearing
recommenced on October 11, 2016. That same day, the trial court revoked
Appellant’s probation at Docket No. 8083 of 2010 and resentenced him to a
term of imprisonment of two to four years, with credit for time served as of
March 14, 2016, and a recommendation that he be screened for placement in
____________________________________________
2 The trial court summarized the nature of Appellant’s probation violations as
follows:
Failure to report police contact, failure to follow directives
from his probation officers, failure to comply with the Forensic
Program, failure to attend Batterers’ Intervention, failure to pay
restitution, absconding; and three new criminal convictions for the
charges of harassment, disorderly conduct, and institutional
vandalism.
It should also be noted that this is his fifth violation on
[Docket No.] 3642 of 2010, his third violation on both [Docket
No.] 8082 and 8083 of 2010, and his first violation on [Docket
No.] 5114 of 2013.
Trial Court Opinion, 9/20/17, at 5.
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the SCI Waymart Therapeutic Program to receive mental health treatment.
Trial Court Order, 10/11/16. The trial court revoked and terminated
Appellant’s probation and parole at the remaining docket numbers.
Appellant filed a motion for reconsideration on October 14, 2016 and on
December 2, 2016, filed a petition under the Post Conviction Relief Act3 (PCRA)
seeking reinstatement of his direct appeal rights nunc pro tunc. Following a
hearing, the trial court denied the motion for reconsideration and granted
Appellant’s petition for reinstatement of his direct appeal rights. Appellant
filed a notice of appeal on January 10, 2017. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.4
On March 3, 2017, after Appellant sought to represent himself,
Appellant’s counsel filed with this Court an application to remand for a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). This Court
granted the request on March 23, 2017. Following remand, the trial court
conducted a Grazier hearing and on September 22, 2017 entered an order
finding that Appellant had knowingly, intelligently, and voluntarily waived his
right to counsel, and permitted him to proceed pro se.
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3 42 Pa.C.S.A. §§ 9541-9546.
4On December 18, 2015, Appellant filed a separate pro se notice of appeal
with this Court from the trial court’s denial of a PCRA petition filed by Appellant
on February 18, 2015. On November 8, 2016, this Court filed an unpublished
memorandum opinion affirming the trial court, at Docket No. 5652 of 2010
and Docket No. 8083 of 2010. See Commonwealth v. Sterner, 159 A.3d
580 (Pa. Super. 2016).
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On appeal, Appellant asserts the following errors:
1. The sentence imposed is manifestly excessive under law
and the court erred in denying reconsideration of
sentence.
2. The counsel provide[d] was incompetent in all aspects of
the instant case(s) raising an ineffective claim.
3. All of the time incarcerated for an incident by law shall
be credited to any minimum or maximum on that instant
case.
4. The mental health act was violated.
5. Constitutional rights were violated.
6. The trial court manifestly abused its discretion.
7. Miscarriage of justice has occurred.
8. Actual innocence claim is raised.
Appellant’s Brief at 4 (unpaginated).
Appellant’s pro se brief is not a model of clarity, and the defects are
substantial. Several required components of the brief are missing, including
the order or other determination in question, a cogent standard and scope of
review, and an objective statement of the case without argument. See
Pa.R.A.P. 2111(a)–(b); 2117(a)-(b). Moreover, Appellant fails to develop
arguments in support of his issues, and his brief is rambling, repetitive, and
often incoherent. See Pa.R.A.P. 2119. Nonetheless, we address the
arguments we can reasonably discern.
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For clarity and ease of analysis, we begin our review by addressing
Appellant’s challenge to the discretionary aspects of his sentence. Appellant’s
Brief at 2-4.
Appellant claims that the trial court abused its sentencing discretion
when it imposed a sentence of two to four years of imprisonment following
revocation of his probation.
An appellant challenging the discretionary
aspects of [a] sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine:
(1) whether the 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 the 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).
...
The determination of what constitutes
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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotations
marks and some citations omitted).
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Here, Appellant has filed a timely notice of appeal and properly
preserved his discretionary claim in a motion for reconsideration. However,
Appellant failed to comply with Pa.R.A.P. 2119(f), which requires an appellant
who challenges the discretionary aspects of his sentence to include in his brief
a concise statement of the reasons relied upon for allowance of appeal. “A
failure to include the Rule 2119(f) statement does not automatically waive an
appellant’s argument; however, we are precluded from reaching the merits of
the claim when the Commonwealth lodges an objection to the omission of the
statement.” Commonwealth v. Bruce, 916 A.2d 657, 666 (Pa. Super.
2007). The Commonwealth has objected to Appellant’s omission of the Rule
2119(f) statement. See Commonwealth Brief at 11. Accordingly, Appellant’s
challenge to the discretionary aspects of his sentence is waived.
Moreover, Appellant has failed to raise a substantial question for review
as he asserts only general claims of excessiveness and assertions that the trial
court did not properly consider and/or weigh certain factors. See
Commonwealth v. Giordano, 121 A.3d 998, 1008 (Pa. Super. 2015) (where
the appellant did not cite a specific provision of the sentencing code or a
fundamental norm of sentencing that he alleged the trial court violated, the
appellant’s assertion of excessiveness did not raise a substantial question);
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“a claim
that a court did not weigh the factors as an appellant wishes does not raise
a substantial question”).
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Even if Appellant’s discretionary claims were not waived, they lack
merit. “The imposition of sentence following the revocation of probation is
vested within the sound discretion of the trial court, which, absent an abuse
of that discretion, will not be disturbed on appeal.” Commonwealth v.
Simmons, 56 A.3d 1280, 1283–84 (Pa. Super. 2012). The trial court
explained the reasons for its sentence in its Pa.R.A.P. 1925(a) opinion as
follows:
We considered the extensive evidence as to
Appellant’s criminal history, including his continued
disregard for the repeatedly imposed conditions to
treat his mental health and to assist with Appellant’s
anger and domestic violence issues. . . . [The
Probation Department] made exhaustive efforts in an
unsuccessful attempt to rehabilitate [Appellant] . . .
with mental health and drug and alcohol treatment.
...
[The trial court considered Appellant’s] mental
health diagnoses . . . along with . . . Appellant’s
demeanor in Court, and escalating threats to many
members of the community, including his family, his
probation officer, law enforcement as a whole and the
Sherriff’s Department [].
...
[The trial court] took into account his extensive
criminal history, the nature of his criminal conduct, his
mental health history, his conduct while on
supervision for various crimes, his age, the safety
needs of the community, his degree of remorse, and
his potential for rehabilitation once he agrees to and
undergoes appropriate medical treatment.
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The following constitute some of the reasons for
imposition of [the] sentence as explained on the
record to [Appellant] on October 11, 2016:
[Trial Court:] [T]he Department of Probation and
Parole hasn’t given up on you. And
I haven’t given up on you. The real
question is whether you’ve given up
on yourself.
...
[T]here’s a long history … And I
know, for example, it’s been noted
in a number of places including the
most recent mental health report,
you’ve refused to take medication.
It’s also been noted that when you
do take medication, you do much
better. So I urge you to be open to
taking medication. I cannot order
you to do so, but I would urge you
to be open to it.
...
[T]here’s something going on here
… you do need treatment.
. . . you’ve got hopefully a long life
ahead of you. You can make it a
productive life if you choose to do
so. But you need treatment. We
also can’t go without recognizing
the seriousness of your offenses.
. . . the proper sentence on these
violations really has to do with
balancing punishment, as was
mentioned, and recognizing the
seriousness of your offenses with
your age, which is relatively young,
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and your potential (for)
rehabilitation. And I think it’s there.
But it’s only there if you’re open to
treatment and you accept
treatment, and probably it’s only
there if you accept medication.
...
[T]he point is to have you gradually
adapt to become a productive
citizen once again in the
community.
. . . I do want the court sheet to
reflect that it is our strong
recommendation that you be
classified to go to the therapeutic
community at SCI Waymart.
[The trial court] evaluated the safety needs of the
community and the potential for rehabilitation of Appellant.
Exercising appropriate discretion, [the trial court] concluded
that in addition to the repeated treatment and corrective
efforts that had been extended to Appellant for several
years, he was in need of intensive mental health treatment
not available in the county facility. [The trial court]
instructed Appellant regarding the importance of
participating in mental health treatment and as to taking
medication as required. . . . [T]he sentence imposed upon
Appellant was appropriate, carefully considered, and not
excessive.
Trial Court Opinion, 9/20/17, at 6-10 (citations to notes of testimony omitted).
Upon review, we find that the record supports the trial court’s well-
reasoned analysis and conclusion that Appellant is not entitled to relief on his
sentencing claims.
With respect to Appellant’s remaining claims, we are unable to discern
any coherent legal arguments. Appellant’s discussion in support of the
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remaining claims consists of little more than a rambling narrative with no
citations to any relevant case law. It is well-settled that undeveloped
arguments are waived. See, e.g., Commonwealth v. Charleston, 94 A.3d
1012, 1021 (Pa. Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014). In
addition, “where an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.” Commonwealth
v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied, 562 U.S. 906
(2010) (citations omitted). Our procedural rules apply equally to represented
parties and pro se litigants. Commonwealth v. Lyons, 833 A.2d 245, 252
(Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005). Accordingly,
Appellant’s claims are waived.
Judgment of sentence affirmed
Judge Dubow joins the memorandum.
P.J.E. Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/18
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