Com. v. Negron, M. ( 2016 )

J-S43041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MANUEL NOEL NEGRON
Appellant No. 1986 MDA 2015
Appeal from the Judgment of Sentence October 13, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004438-2013
CP-36-CR-0005341-2012
CP-36-CR-0005346-2012
CP-36-CR-0005903-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 15, 2016
Appellant Manuel Noel Negron appeals from the judgment of sentence
entered on October 13, 2015 in the Lancaster County Court of Common
Pleas following revocation of Appellant’s probation and parole. Judgment of
sentence for the conspiracy conviction (count 2) at docket CP-36-CR-
0005903-2012 is vacated. Judgment of sentence is affirmed for all other
counts.
On April 3, 2013, Appellant entered an open guilty plea at docket
numbers CP-36-CR-0005341-2012 (“docket 5341”) and CP-36-CR-0005346-
2012 (“docket 5346”). At docket 5341, he pled guilty to intimidation of a
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witness,1 and at docket 5346 he pled guilty to burglary, theft by unlawful
taking, and conspiracy to commit burglary.2 On that same date, at CP-36-
CR-0005903-2012 (“docket 5903”), Appellant entered a negotiated guilty
plea to theft and conspiracy to commit theft.
The trial court sentenced Appellant that same day. At docket 5341,
the trial court sentenced Appellant to time served to 23 months’
incarceration followed by 3 years’ probation for the intimidation of a witness
conviction. At docket 5346, the trial court imposed sentences of time served
to 23 months’ incarceration followed by 3 years’ probation for the burglary
conviction and the conspiracy to commit burglary conviction. The theft by
unlawful taking conviction merged for sentencing purposes. At docket 5903,
the trial court sentenced appellant to three years’ probation for the theft
conviction and three years’ probation for the conspiracy to commit theft
conviction. The sentences were imposed concurrently.
On October 31, 2014, Appellant entered a negotiated guilty plea at
docket CP-36-CR-0004438-2013 (“docket 4438”) to retail theft,3 and the
trial court sentenced him to two years’ probation.
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1
18 Pa.C.S. § 4952(a)(1).
2
18 Pa.C.S. §§ 3502(a), 3921, and 903(c), respectively.
3
18 Pa.C.S. § 3929.
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On July 29, 2015, the trial court found Appellant in violation of his
probation and parole, revoked his probation and parole, and ordered a pre-
sentence investigation report.
On October 13, 2015, the trial court sentenced Appellant to an
aggregate term of two to five years’ incarceration.4
On October 21, 2015, Appellant filed a post-sentence motion, which
the trial court denied that same day. On November 12, 2015, Appellant filed
a timely notice of appeal. Both Appellant and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issue on appeal:
Was a sentence of two to five years[’] incarceration for
technical violations of probation manifestly excessive and
an abuse of the court’s discretion?
Appellant’s Brief at 5.
Appellant’s issue challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
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4
At docket 5341, the trial court sentenced Appellant to 1 to 2 years’
incarceration for the intimidation of a witness conviction. At docket 5346,
the trial court sentenced Appellant to 2 to 5 years’ incarceration for the
burglary conviction and 2 to 5 years’ incarceration for the conspiracy to
commit burglary conviction. At docket 5903, the trial court sentenced
Appellant to 1 to 2 years’ incarceration for the theft by unlawful taking
conviction and 1 to 2 years’ incarceration for the conspiracy conviction. At
docket 4438, the trial court sentenced Appellant to serve the unexpired
balance of his sentence.
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1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super.2000)). Before this Court can address a discretionary
challenge, we must engage in a four-part analysis to 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.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see
also Allen, 24 A.3d at 1064.
Appellant raised his discretionary aspects of sentence issue in a timely
post-sentence motion, filed a timely notice of appeal, and included a
statement of reasons relied upon for allowance of appeal pursuant to
Pennsylvania Rule of Appellate Procedure 2119(f) in his brief. We must,
therefore, determine whether his issue presents a substantial question and,
if so, review the merits.
“The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.
Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists
where a defendant raises 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 1263, 1268
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(Pa.Super.2013) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72
(Pa.Super.2012)).
Appellant challenges the imposition of total confinement following his
technical parole violations as excessive. Such a challenge raises a
substantial question. Commonwealth v. Crump, 995 A.2d 1280, 1282
(Pa.Super.2010) (stating, “[t]he imposition of a sentence of total
confinement after the revocation of probation for a technical violation, and
not a new criminal offense, implicates the ‘fundamental norms which
underlie the sentencing process,’” and finding substantial question raised).
Because Appellant raises a substantial question, we will address the merits
of his issue.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.” Crump,
995 A.2d at 1282 (quoting Commonwealth v. Johnson, 967 A.2d 1001(Pa.Super.2009)). “An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.” Id. (citing
Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)). “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.” Id. at 1283 (citing Malovich, 903
A.2d 1247). Further, “[w]here pre-sentence reports exist, we shall . . .
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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. Antidormi, 84 A.3d
736, 761 (Pa.Super.2014) (quoting Commonwealth v. Devers, 546 A.2d
12, 18 (Pa.1988)).
When sentencing a defendant following the revocation of probation,
“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. § 9771(b)
(probation). In revocation proceedings, “the sentencing court must follow
the general principle 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.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1040–1041 (Pa.Super.2013). Moreover, when re-
sentencing a defendant following revocation, courts must consider the record
of the sentencing proceeding as well as the conduct of the defendant while
on probation. 42 Pa.C.S. § 9771(d).5
The trial court found:
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5
Where a court resentences a defendant following 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.” 42 Pa.C.S. § 9721(b).
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Prior to imposing sentence, the [c]ourt confirmed with
Appellant and his counsel that all pertinent information
contained in the PSI Report was accurate. (N.T.S. at 2-4).
The [c]ourt then considered that information, including
Appellant’s family history, health, and mental health
history. Id. at 10. The [c]ourt noted that Appellant
completed anger management classes once, but refused to
go a second time because he did not believe it worked.
Id.
The [c]ourt considered Appellant’s drug and alcohol
history, noting that Appellant partied every weekend after
previously being released from [Lancaster County Prison]
and smoked marijuana daily until his most recent arrest.
(N.T.S. at 10 -11). The [c]ourt also considered the fact
that Appellant refused to comply with a court-ordered drug
and alcohol evaluation that was to be conducted on
September 14, 2015, which was to be done as part of the
pre-sentence investigation. Id. at 11.
The [c]ourt noted that Appellant is 21 years old, an age of
sufficient maturity to understand the significance of his
acts. (N.T.S. at 12). The [c]ourt also noted Appellant
completed the 11th grade at McCaskey High School, before
dropping out because he was arrested. Id. The [c]ourt
considered Appellant’s ability to read, write, and
understand the English language, noting there is nothing
to indicate a lack of intellectual ability that would prevent
Appellant from understanding the significance of his acts or
the difference between right and wrong. Id. at 12-13. The
[c]ourt also cited Appellant’s limited work history, briefly
holding jobs until he was either arrested or fired. Id. at
13.
The [c]ourt reviewed a psychological evaluation of
Appellant from November 3, 2008, when Appellant was 14
years old, which indicated that Appellant responded to the
evaluation with active resistance, he was antisocial, he had
multiple suspensions from school for disrespecting
teachers, and he was diagnosed with ADHD and
oppositional defiant disorder. (N.T.S. at 11). The [c]ourt
also considered a psychological evaluation from January of
2011, when Appellant was 16 years of age, during which
time Appellant was disinterested and disrespectful of the
evaluator. Id. Appellant was diagnosed with conduct
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disorder due to repeated altercations with his peers, total
disregard of authority figures, and noncompliance with the
law. Id. at 11-12.
The [c]ourt noted that Appellant has been in and out of jail
since the age of 15. (N.T.S. at 15). In 2008, as a
juvenile, Appellant was adjudicated delinquent for
propulsion of missiles into an occupied vehicle. Id. at 14.
In that case, Appellant threw rocks from a railroad
overpass onto a highway striking the windshield of a
moving automobile, because he was bored. Id. Appellant
reportedly showed no remorse. Id. As an adult, Appellant
has convictions for burglary, theft, conspiracy to commit
burglary and theft, intimidation of a witness, and retail
theft. Id.
The [c]ourt considered the gravity of the offenses for
which Appellant was before the [c]ourt for violations, as
they related to the impact on the life of the victims and/or
community. (N.T.S. at 13). In 2012, Appellant was
convicted of burglary for entering the residence of another
person through a third floor window with a juvenile co-
defendant and stealing property while the homeowner was
on vacation. Id. Appellant was also convicted of
intimidating a witness for threatening to assault the
individual who provided the police with information about
his involvement in that burglary. Id.
The [c]ourt considered the nature and circumstances of
Appellant’s violations, as well as Appellant’s conduct while
on court supervision. (N.T.S. at 10). Appellant’s first
violation was in September 2010 as a juvenile. Id. at 14.
His second violation was in February 2011, also as a
juvenile. Id. The third violation was in October 2013 as
an adult, for new criminal charges. Id. The fourth
violation occurred in May 2014 for a new charge, placing
an irate telephone call to his probation officer, dishonesty
about where he was living, and repeatedly lying to his
probation officer. Id. at 14-15. The fifth violation was in
December 2014, for failing to appear for three
appointments, having a very poor attitude, being
disrespectful of adult probation and parole, and ongoing
anger issues. Id. at 15. The sixth and current violation
occurred on July 29, 2015, for missed appointments and
because Appellant’s whereabouts were unknown. Id.
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As the [c]ourt noted, Appellant was making his fourth
violation appearance on these charges since 2013, and his
sixth overall violation appearance since 2010. (N.T.S. at
15). When considering new charges and violations,
Appellant was making his ninth overall appearance in
court. Id. As such, the [c]ourt noted there was little to
indicate that Appellant had made any attempt to change
his lifestyle or that he is amenable to rehabilitation. Id. at
14.
The [c]ourt considered Appellant’s statement contained in
the PSI Report, as well as his demeanor and statements
made by Appellant to his probation officer prior to his most
recent violation. (N.T.S. at 12, 15). While demonstrating
very negative behavior, Appellant told his probation officer
to just “violate me. I can do time standing on my head.”
Id. at 15. On another occasion, Appellant told his
probation officer he would “just smile at the judge” and he
would be released. Id. Moreover, Appellant refused to
pay money for anger management treatment while
spending money taking women to dinner or shopping,
telling his probation officer his personal life was none of
their business. Id. at 15-16.
Finally, the [c]ourt considered the comments made by
Appellant’s counsel and the recommendation of the
probation officer, who believed a state prison sentence
might be warranted because Appellant has continued to
demonstrate the same negative behavior. (N.T.S. at 12,
15). Additionally, the [c]ourt considered the penalties
authorized by the Pennsylvania Legislature for the crimes
committed, as well as the guidelines of the sentencing
code. Id. at 12.
Based on the foregoing, this [c]ourt found that Appellant
has proven he will continue to be noncompliant. (N.T.S. at
16). Moreover, a sentence of total confinement was
necessary because parole and probation have proven to be
ineffective rehabilitation tools.5 Id. Additionally, the
[c]ourt determined that Appellant is not amenable to
treatment or rehabilitation outside a correctional facility,
but he is in need of treatment that can be provided most
effectively by his commitment to an institution. Id.
Appellant’s past conduct indicates he is a danger to
society, because he previously committed new crimes on
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two separate occasions while on supervision and is likely to
commit another crime if not incarcerated. Id. Finally,
because Appellant has shown total disregard for his
probation officer, the court, the criminal justice system,
and the rules of law through the commission of crimes and
repeated violations, a state prison sentence was essential
to vindicate the authority of the court. Id. at 16-17.
Consequently, Appellant’s sentence was not manifestly
excessive, nor was it an abuse of the [c]ourt’s discretion.6
5
In lieu of incarceration, Appellant proposed that he
be released to a halfway house to get his GED and
deal with his addiction. (N.T.S. at 5-7). However,
Appellant failed to produce a representative from the
halfway house or any documentation to explain the
program. Id. at 5. Moreover, as this [c]ourt noted,
Appellant has resisted repeated similar efforts at
treatment by his probation officer for the past
several years, and it was the [c]ourt’s belief that
Appellant was not sincere but was proposing such an
option only to avoid a potential state prison
sentence. Id. at 7-8.
6
As previously noted, Appellant’s original sentence
of probation for count two criminal conspiracy to
commit theft at Information number 5903-2012 was
revoked on October 31, 2013. See Violation
Sentence Sheet, 10/31/13. At that time, Appellant
was paroled on count two to a sentence of time
served to 23 months in LCP. Id. Because Appellant
was presently before the [c]ourt on count two for
violating parole, and there was no consecutive
probation imposed, the only sentence available to
the [c]ourt on the parole violation was the unexpired
balance of his original sentence. See
Commonwealth v. Holmes, 933 A.2d 57, 66 (Pa.
2007) (a parole violator cannot be sentenced to a
new sentence but instead can only be recommitted
to the remainder of the original sentence).
Therefore, on count two of said Information, there
can be no probation revocation and Appellant’s
sentence of imprisonment for a period of not less
than one year nor more than two years on said count
should be vacated. Nevertheless, this correction does
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not in any way impact the aggregate sentence of two
to five years[’] incarceration.
1925(a) Opinion, 1/6/2016, at 8-12.
The trial court detailed its reasons for imposing a sentence of total
confinement and did not abuse its discretion when imposing the aggregate
sentence of 2 to 5 years’ incarceration following the probation and parole
violations.
However, as noted by the trial court, on October 31, 2013 the trial
court had revoked Appellant’s probation at count 2 of docket 5903
(conspiracy conviction) and resentenced him to time served to 23 months’
imprisonment, with no sentence of probation. Accordingly, the trial court’s
October 13, 2015 judgment of sentence of 1 to 2 years’ imprisonment for a
violation of probation on count 2 at docket 5903 is illegal and is vacated.6
Consistent with the trial court’s observation, remand is not necessary, as the
trial court imposed the sentence concurrently, and the court’s overall
sentencing scheme is not impacted.
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6
Following revocation of parole, a court “must recommit the parolee to
serve the remainder of the original sentence of imprisonment, from which
the prisoner could be re[-]paroled.” Commonwealth v. Holmes, 933 A.2d
57, 59 n.5 (Pa.2007). Further, “challenges to the legality of a sentence
cannot be waived and . . . a court may raise sentence illegality sua
sponte[.]” See, e.g., Commonwealth v. Watley, 81 A.3d 108, 118
(Pa.Super.2013).
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Judgment of sentence for the conspiracy conviction (count 2) at docket
CP-36-CR-0005903-2012 vacated. Judgment of sentence affirmed for all
other counts.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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