Com. v. Savage, G. ( 2017 )

J-S03018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY T. SAVAGE, JR.
Appellant No. 616 WDA 2016
Appeal from the Judgment of Sentence dated January 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014978-2010
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED APRIL 13, 2017
Appellant, Gregory T. Savage, Jr., appeals from a sentence imposed by
the Court of Common Pleas of Allegheny County after he violated his
probation by possessing a controlled substance with an intent to distribute it
— a crime for which he was convicted in Armstrong County. He contends
that his revocation sentence of two to five years’ imprisonment was
excessive and unreasonable because the trial court (1) was biased against
him, and (2) failed to consider factors mandated by the Sentencing Code.
We affirm.
We state the facts as set forth by the trial court:
On May 16, 2011, Appellant . . . pled guilty to one count of
Delivery of Cocaine, one count of Possession of a Controlled
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S03018-17
Substance with Intent to Deliver (“PWID”) and one count of
Possession of a Controlled Substance, all after [a] prior
conviction. This Court sentenced Appellant on the Delivery count
to 15 to 30 months incarceration with 3 years of consecutive
probation. On January 12, 2016, [t]his Court found Appellant to
be a convicted violator of his conditions of probation and
resentenced him to [a] period of incarceration of [2] to [5]
years.
Trial Ct. Op., 8/23/16, at 1.1 The trial court denied Appellant’s post-
sentence motion, and Appellant appealed. Id.
Appellant raises the following issue:
Was the two to five-year sentence of incarceration imposed
manifestly excessive, unreasonable, and an abuse of discretion
where the sentence was imposed out of personal frustration,
bias, and ill-will towards [Appellant], rather than in
contemplation of [Appellant’s] rehabilitative needs and his
nature and characteristics?
Appellant’s Brief at 4.
“[A] challenge to the discretionary aspects of a sentence is not
appealable as of right.” Commonwealth v. Colon, 102 A.3d 1033, 1042
(Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015). Before we
____________________________________________
1
Appellant also was sentenced by the Armstrong County court to two to five
years’ incarceration for his PWID conviction there. As noted, it was that
crime that resulted in the instant revocation sentence of two to five years’
incarceration. Because the revocation sentence was made consecutive to
the Armstrong County sentence, the trial court’s opinion accurately noted
that Appellant effectively received an “aggregate” sentence of four to ten
years’ imprisonment. See Trial Ct. Op., 8/23/16, at 2. See also
Commonwealth’s Brief at 4 n.2.
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exercise jurisdiction to reach the merits of Appellant’s claim, we must
determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Id. at 1042-43. Only if the appeal satisfies each of these four requirements
may we proceed to decide the substantive merits of Appellant’s claim. Id.
at 1043. Our review of the record discloses that Appellant has met the first
three of these requirements, and we therefore turn to whether he has raised
a substantial question regarding his sentence.
“A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d at 1263, 1268 (Pa. Super. 2013)
(quotation marks and citation omitted). “[A] defendant may raise a
substantial question where he receives consecutive sentences within the
guideline ranges if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in an excessive
sentence; however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.” Id. at 1270. In
the case at hand, we conclude Appellant has stated a substantial question,
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except to the extent he baldly challenges the consecutive nature of his
sentence. See Colon, 102 A.3d at 1042-43; Dodge, 77 A.3d at 1270.
In Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014), our
Supreme Court set forth the following regarding revocation sentences:
[C]ontrary 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.” 42 Pa.C.S. § 9721.
See Commonwealth v. Reaves, 592 Pa. 134, 150, 923 A.2d
1119, 1129 (2007) (citing 204 Pa.Code. § 303.1(b) (Sentencing
Guidelines do not apply to sentences imposed as result of
revocation of probation)).
Upon revoking probation, “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.” 42 Pa.C.S. §
9771(b). Thus, upon revoking probation, the trial court is
limited only by the maximum sentence that it could have
imposed originally at the time of the probationary sentence,
although once probation has been revoked, the court shall not
impose a sentence of total confinement unless it finds that:
(1) the defendant has been convicted of another crime; or
(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).
Moreover, 42 Pa.C.S. § 9721(b) specifies that in every
case following the revocation of probation, “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.” See also Pa.R.Crim.P. 708(C)(2) (indicating
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at the time of sentence following the revocation of probation,
“the judge shall state on the record the reasons for the sentence
imposed.”).
However, following revocation, a sentencing court need not
undertake a lengthy discourse for its reasons for imposing a
sentence or specifically reference the statutes in question.
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
....
Pasture, 107 A.3d at 27-28 (brackets and footnote omitted).
After a careful review of the record, the parties’ briefs, and the trial
court’s decision, we affirm on the basis of the decision of the Honorable Jill
E. Rangos. See Trial Ct. Op. at 5-6 (holding Appellant’s subsequent
conviction for PWID while on probation, his absconding from police, and his
background as a drug dealer justified revocation sentence of incarceration).2
Accordingly, we affirm the judgment of sentence. The parties are instructed
to include a copy of the trial court’s August 23, 2016 opinion to any filing
referencing this decision.
Judgment of sentence affirmed.
____________________________________________
2
We do not adopt the trial court’s statement that it imposed a sentence of
four to ten years’ incarceration. For the reasons noted in footnote 1 of this
memorandum, that statement is imprecise and potentially confusing. The
sentence imposed by the trial court was two to five years’ incarceration.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2017
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Circulated 03/31/2017 04:09 PM
1-0PINION
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVLS,ION,., ..
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v. CC No. 201014978
GREGORY SAVAGE
Appeal of:
OPINION
GREGORYSAVAGE,
Honorable Jill E. Ranges
Appellant Room 533
436 Grant Street
Pittsburgh, PA 15219
Copies to:
Stephanie Noel
Office of the Public Defender
400 County Office Building
542 Forbes A venue
Pittsburgh, PA 15219-2904
Michael Streily
Office of the District Attorney
401 County Courthouse
,; 436 Grant St.
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
v. CC No. 201014978
GREGORY SAVAGE
Appeal of:
GREGORY SAVAGE
Appellant
OPINION
RANGOS,J. August 23, 2016
On May 16, 2011, Appellant, Gregory Savage, pled guilty to one count of Delivery of Cocaine,
one count of Possession of a Controlled Substance with Intent to Deliver ("PWID") and one count
of Possession of a Controlled Substance, all after prior conviction. This Court sentenced Appellant
on the Delivery count to 15 to 30 months incarceration with 3 years of consecutive probation. On
January 12, 2016, This Court found Appellant to be a convicted violator of his conditions of probation
and resentenced him to an aggregate period of incarceration of 4 to 10 years. Appellant's Post
Sentence Motion was denied on February 11, 2016. Appellant filed a Notice of Appeal on April 29,
20161 and a Concise Statement of Errors Complained Of on May 20, 2016.
MATTERS COMPLAINED OF ON APPEAL
Appellant asserts that the Court erred in imposing a sentence of confinement for a period of
4 to 10 years as it was manifestly excessive, unreasonable and an abuse of discretion, as well as contrary
1
Appellant filed both the Post-Sentence Motion and the Notice of Appeal late and this Court
accepted them nun» pro tune.
2
to the Sentencing Code and the fundamental norms underlying the sentencing process. Appellant
alleges that this Court failed to consider Appellant's personal character, background and rehabilitative
needs in sentencing him consecutively to a sentence in another county. (Statement of Matters
Complained of on Appeal, p. 3-4).
DISCUSSION
Appellant challenges the validity of his resentencing following a violation of probation under
42 Pa.C.S. § 9771, which states:
§ 9771. Modification or revocation of order of probation
(a) General rule.--The court may at any time terminate continued supervision or
lessen or increase the conditions upon which an order of probation has been
imposed.
(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.s-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
(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.
(d) Hearing required.s-There shall be no revocation or increase of conditions of
sentence under this section except after a hearing at which the court shall consider the
record of the sentencing proceeding together with evidence of the conduct of the
defendant while on probation. Probation may be eliminated or the term decreased
without a hearing.
42 Pa.C.S. § 9771.
Appellant alleges this Court failed to consider statutory sentencing factors, which is a challenge
to the discretionary aspects of his sentence. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super.
2012). "[T[here is no absolute right to appeal when challenging the discretionary aspect of a sentence."
3
Commonwealth v. Crump1 995 A.2d 1280, 1282 (Pa.Super.2010); 42 Pa.C.S. § 9781(b). An "[a)ppeal is
permitted only after this Court determines that there is a substantial question that the sentence was
not appropriate under the sentencing code." Cmmp, at 1282. The determination of whether a
particular issue constitutes a "substantial question" can only be evaluated on a case by case basis.
Commonwealth v. House, 537 A.2d 361, 364 (Pa.Super. 1988). It is appropriate to allow an appeal "where
an appellant advances a colorable argument that the trial judge's actions were: (1) inconsistent with a
specific provision of the sentencing code; or (2) contrary to the fundamental norms which underlie
the sentencing process." Commomvealth v. Losch, 535 A.2d 115, 119-120 n. 7 (Pa.Super. 1987).
An allegation that a sentencing court "failed to consider" or "did not adequately
consider" certain factors does not raise a substantial question that the sentence was
inappropriate. Commonwealth v. McKiel 427 Pa.Super. 561, 629 A.2d 1012 (1993);
Commonwealth u. Williams1 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en bane). Such a
challenge goes to the weight accorded the evidence and will not be considered absent
extraordinary circumstances. McKie!, 427 Pa.Super. at 564, 629 A.2d at 1013.
Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995). Therefore, Appellant's allegation of error,
that this Court failed to adequately apply all of the required sentencing factors, does not raise a
substantial question for appellate review. Moreover, a bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a substantial question. See Commonwealth v. Moury1 992
A.2d 162, 171-172 (Pa.Super.2010). However, in an abundance of caution, will address the merits of
Appellant's claim.
The standard of review with respect to sentencing is whether the sentencing court abused its
discretion. Commonwealth u: Sm.ith, 673 A.2d 893, 895 (Pa. 1996). A court will not have abused its
discretion unless "the record discloses that the judgment exercised was manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will." Id. It is not an abuse of discretion if the appellate
court may have reached a different conclusion. Grady v. Frito-Lay,Inc., 613 A.2d 1038, 1046 (Pa. 2003).
Furthermore, at resentencing the Sentencing Guidelines do not apply.
4
[Cjontrary 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."
42 Pa.CS.§ 9721. See Commonwealth v. Reaver, 592 Pa. 134, 150, 923 A.2d 1119, 1129
(2007) (citing 204 Pa.Code. § 303.l(b) (Sentencing Guidelines do not apply to
sentences imposed as result of revocation of probation)).
Commonwealth_v. Pasture, 107 A.3d 21, 27 (Pa. 2014).
Under 42 Pa.CS. § 9771 (c), a court may sentence a defendant to total confinement subsequent
to revocation of probation if any of the following conditions exist: (1) the defendant has been
convicted of another crime; (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 this court. See Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa.Super.2001). A sentencing
court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question, but the record as a whole must reflect the sentencing court's
consideration of the facts of the crime and character of the offender. Commonwealth v. Malovich, 903
A.2d 1247 (Pa.Super.2006). In addition, the resentencing court is giving great discretion and is bound
only by the statutory maximum.
We emphasize a trial court does not necessarily abuse its discretion in imposing a
seemingly harsher post-revocation sentence where the defendant received a lenient
sentence and then failed to adhere to the conditions imposed on him. See Reaves, 592
Pa. at 138 n. 5, 923 A.2d at 1122 n. 5. In point of fact, where the revocation sentence
was adequately considered and sufficiently explained on the record by the revocation
judge, in light of the judge's experience with the defendant and awareness of the
circumstances of the probation violation, under the appropriate deferential standard
of review, the sentence, if within the statutory bounds, is peculiarly within the judge's
discretion.
Pasture, .r11pra, at 28-29.
At the time of his original plea, on September 18, 2012, Appellant had a 5 Prior Record Score
("PRS") and was on State parole for a prior drug conviction. Nevertheless, this Court, sentenced
Appellant to a term of 15 to 30 months, a sentence in the mitigated range of the Sentencing Guidelines.
5
Upon revocation, this Court imposed a standard range sentence, which carries its own presumption
of reasonability. Commonweqlth o. Walls,926 A.2d 957, 964-965 (Pa. 2007).
Appellant violated his probation with a new conviction in Armstrong County of PWID one
pound of cocaine and PWID heroin for no further penalty. (Transcript of Probation Violation
Hearing on January 12, 2016, hereinafter V'I', at 2) He also was on run for a period of time. Id.
Appellant argued at his violation hearing that the Armstrong conviction for PWID of one pound of
cocaine and also heroin was really for personal use exclusively, yet the probation officer testified that
Appellant did not test positive for any illegal substances during the course of his supervision. (VT 7-
8) Contrary to Appellant's assertion, this Court considered Appellant's character and background and
determined that Appellant is a drug dealer who refuses to comply with the reasonable rules of society,
specifically as they pertain to the possession and selling of illegal substances. Thus, this Court did not
err in sentencing him to a period of 4 to 10 years.
CONCLUSION
For all of the above reasons, no reversible error occurred and the findings and rulings of this
Court should be AFFIRMED.
BY THE COURT:
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CERTIFICATEOF SERVICE
The undersigned hereby certifies that a true and correct copy of this OPINION was mailed
to the following individuals by first class mail, postage prepaid on the 23rd day of August 2016.
Stephanie Nod
Office of the Public Defender
400 County Office Building
542 Forbes Avenue
Pittsburgh, PA 15219-2904
Michael Streily
Office of the District Attorney
401 County Courthouse
Pittsburgh, PA 15219
·. €JL
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