Com. v. Williams, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JIMMIE C. WILLIAMS
Appellant No. 1128 MDA 2015
Appeal from the Judgment of Sentence March 20, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001256-2014
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 26, 2016
Jimmie C. Williams appeals, nunc pro tunc, from the judgment of
sentence imposed March 20, 2015, in the Dauphin County Court of Common
Pleas, following the revocation of his probation and parole.1 The trial court
imposed a sentence of 18 to 60 months’ imprisonment upon the revocation
of his probation on one count of unlawful restraint, and directed him to serve
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*
Retired Senior Judge assigned to the Superior Court.
1
The notice of appeal indicates the order on appeal was entered by the trial
court on June 1, 2015. However, as we will discuss infra, the June 1, 2015,
filing was the order which restored his appellate rights nunc pro tunc; rather,
his revocation sentence was imposed on March 20, 2015. Therefore, we
direct the prothonotary to change the caption to reflect the appeal is from
the judgment of sentence imposed on March 20, 2015.
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the balance of his time – six months, 10 days’ imprisonment – for the
revocation of his parole on one count of simple assault.2 The same day,
Williams was sentenced in an unrelated matter to an aggregate term of 16
to 60 months’ imprisonment,3 which was imposed consecutively to the
probation revocation sentence at issue. On appeal, Williams challenges the
discretionary aspects of his sentence. For the reasons below, we affirm.
The facts and procedural history of this appeal are as follows. On July
8, 2014, Williams entered a negotiated guilty plea to charges of simple
assault, unlawful restraint, and defiant trespass for the December 31, 2013,
domestic assault of his ex-girlfriend. The Commonwealth alleged the
following facts during the plea colloquy:
According to [the victim], [Williams] held her down by her wrists
to the point where her movement was restrained and asked for
sexual intercourse. After she denied this many times, he then
attempted to pull her pants off but stopped after she fought him
off, and this put her in fear of serious bodily injury.
N.T., 7/8/2014, at 3-4.4 The trial court accepted the plea, and sentenced
Williams to the negotiated term of six to 18 months’ imprisonment for simple
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2
18 Pa.C.S. §§ 2902(a)(2) and 2701(a)(3), respectively.
3
See Docket No. CP-22-CR-0000183-2015. Williams’ judgment of sentence
imposed in that case was affirmed by a panel of this Court on direct appeal.
See Commonwealth v. Williams, 2016 WL 417378 [900 MDA 2015] (Pa.
Super. 2016) (unpublished memorandum).
4
Williams was also originally charged with attempted rape. However, during
the revocation sentencing hearing, the prosecutor explained that victim, who
is the mother of Williams’ children “really [did not] want the stigma of sex
(Footnote Continued Next Page)
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assault, and 18 months’ consecutive probation for unlawful restraint.
Williams was immediately paroled.
On October 7, 2014, Williams committed additional offenses against
the victim, which led to the charges at Docket No. CP-22-CR-0000183-2015.
On March 20, 2015, the trial court conducted a guilty plea and revocation
hearing. Williams entered a guilty plea to charges of terroristic threats,
simple assault and criminal attempt (escape) at Docket No. CP-22-CR-
0000183-2015, for which the trial court sentenced him to an aggregate term
of 16 to 60 months’ imprisonment. In the present case, the court revoked
Williams’ parole and probation and resentenced him as follows: (1) for the
revocation of his parole, the court directed him to serve the balance of his
original sentence, that is, 6 months, 10 days’ imprisonment; and (2) for the
revocation of his probation, the court imposed a term of 18 to 60 months’
imprisonment. The trial court also instructed that the balance of his parole
revocation sentence be served concurrently to the sentence at Docket No.
CP-22-CR-0000183-2015, but that the probation revocation sentence be
served consecutively to the new sentence.
On March 30, 2015, Williams filed a timely post-sentence motion
requesting modification of both sentences. On April 13, 2015, the trial court
entered an order modifying the sentence “to reflect that [Williams’] total
_______________________
(Footnote Continued)
offenders registry so we worked with her and Mr. Williams for the plea
agreement in [this] case.” N.T., 3/20/2015, at 6.
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Aggregated Sentence is 36 months to 120 months.”5 Order, 4/13/2015.
Thereafter, on May 1, 2015, the court denied Williams’ post-sentence
motion.
On May 4, 2015, Williams, through new counsel, filed a petition for
collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),6
asserting prior counsel’s ineffectiveness for failing to file a timely appeal
from the revocation sentence. See Pa.R.Crim.P. 708(E) (stating that
following the imposition of a probation revocation sentence, “[t]he filing of a
motion to modify sentence will not toll the 30-day appeal period.”). By
order entered June 1, 2015, the trial court granted Williams’ requested
relief, explaining:
[Williams’] appellate rights are reinstated and he shall have
thirty days (30) from the date of this Order in which to file a
Notice of Appeal, if he so chooses.
Order, 6/1/2015.
Thereafter, on June 11, 2015, Williams filed another post-sentence
motion seeking modification of his revocation sentence. However, before
the trial court ruled on the motion, Williams filed a timely notice of appeal on
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5
The court did not specify which individual sentence it modified to achieve
the greater minimum term. However, Williams has never challenged the
modification order.
6
See 42 Pa.C.S. §§ 9541-9546.
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June 30, 2015.7 The trial court subsequently denied the post-sentence
motion on July 15, 2015.
Preliminarily, we must address the trial court’s assertion that this
Court has no jurisdiction to consider Williams’ appeal. See Trial Court
Opinion, 10/7/2015, at 5. The court first states the appeal is premature
because Williams filed the notice of appeal before it had ruled on his post-
sentence motion. Id. at 4, citing Pa.R.Crim.P. 720. However, a petitioner
who is granted permission to file a direct appeal nunc pro tunc from a PCRA
court is not entitled to file a post-sentence motion nunc pro tunc, unless he
requested such relief in his PCRA petition, and was granted permission to do
so by the PCRA court. Commonwealth v. Fransen, 986 A.2d 154, 158
(Pa. Super. 2009). Because Williams neither requested nor was granted
permission to file a supplemental post-sentence motion, his filing was a
nullity. Nonetheless, in any event, a post-sentence motion does not toll the
30-day appeal period. Pa.R.Crim.P. 708(E). See Commonwealth v.
Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (stating Pa.R.Crim.P. 708,
rather than Rule 720, governs a defendant’s direct appeal rights from the
judgment of sentence following probation revocation). Therefore, Williams
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7
The trial court did not direct Williams to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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properly filed a notice of appeal on June 30, 2015, prior to the expiration of
the 30-day period provided for in the PCRA court’s June 1, 2015, order.
Second, the trial court stated it was “confused” and “confounded” as to
how to address the appeal because the notice of appeal indicated Williams
was appealing the June 1, 2015, order, which actually granted him the relief
he requested, that is, a nunc pro tunc appeal. Trial Court Opinion,
10/7/2015, at 5. See Notice of Appeal, 6/30/2015. However, it is evident
from our review that Williams simply listed the wrong date on the notice of
appeal, as the proper order under appeal was the March 20, 2015,
revocation sentence. Accordingly, “[b]ecause the appeal is otherwise
proper, we will treat this defect as harmless and proceed to consider the
merits as if the notice of appeal had correctly referred to the judgment of
sentence.” Commonwealth v. Lahoud, 488 A.2d 307, 309 (Pa. Super.
1985), citing Pa.R.A.P. 105(a). Therefore, we proceed to an examination of
Williams’ challenge to the discretionary aspects of his probation revocation
sentence.8
A challenge to the discretionary aspects of a sentence is not absolute,
but rather, “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (quotation
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8
“[T]his Court’s scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).
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omitted). To reach the merits of a discretionary issue, this Court must
determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved [the] 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. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Williams complied with the procedural requirements for this appeal by
filing both a post-sentence motion for reconsideration of sentence, and a
timely nunc pro tunc appeal. Williams also included in his brief a statement
of reasons relied upon for appeal pursuant to Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we
must consider whether he has raised a substantial question justifying our
review.
Williams argues his sentence is “excessive and unreasonable in light of
[his] rehabilitative needs.” Williams’ Brief at 9. He claims that prior to the
most recent sentence, for which the court ordered him to attend batterer’s
counseling, he had “never received any treatment, counseling, or therapy to
treat the underlying causes of his offenses.” Id. Moreover, Williams notes
the victim “bears no fear toward” him and “has in fact advocated for a
reduced sentence so as to allow [him] to receive the treatment she believes
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is needed for him to get back to his family and back on his prior career
path.” Id. at 12-13 (citation omitted).9
A substantial question exists when an appellant sets forth “a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted). The Sentencing Code specifically mandates that, in
sentencing a defendant,
the court shall 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.
42 Pa.C.S. § 9721(b) (emphasis supplied). Therefore, a claim that the trial
court failed to consider either the victim’s wishes or the defendant’s
rehabilitative needs raises a substantial question for our review. See
Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).
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9
We note Williams attached to his March 30, 2015, post-sentence motion an
undated letter, purportedly signed by the victim, in which she states she did
not want him to “serve years in prison” and asked the court to reduce his
sentence so he could “come home sooner.” Post-Sentence Motion,
3/20/2015, Exhibit A. Further, she indicates she “really need[s] him here
for [her] kids,” and that she is “not fearful” of him and knows that “he would
never hurt [their] children.” Id.-8-
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“In general, 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. Hoover, 909 A.2d 321, 322 (Pa. Super. 2006) (citation
omitted). Upon the revocation of a defendant’s probationary sentence, a
trial court may impose any sentencing option that was available under the
Sentencing Code at the time of the original sentencing, regardless of any
negotiated plea agreement.10 See 42 Pa.C.S. § 9771(b); Commonwealth
v. Wallace, 870 A.2d 838, 843 (Pa. 2005). The only limitation on a court’s
authority in imposing a probation revocation sentence, is found at Section
9771(c) of the Sentencing Code:
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.
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10
We will limit our discussion to Williams’ probation revocation sentence.
Indeed, the trial court had no discretion in the sentence it imposed upon
revocation of his parole on the charge of simple assault. “Rather, the only
option for a court that decides to revoke parole is to recommit the defendant
to serve the already-imposed, original sentence.” Commonwealth v.
Melius, 100 A.3d 682, 686 (Pa. Super. 2014) (quotation omitted).
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42 Pa.C.S. § 9771(c).
Here, Williams’ probationary sentence was revoked after he committed
another crime against the same victim. Moreover, our review of the
sentencing transcript reveals the trial court fully considered both the victim’s
wishes and Williams’ rehabilitative needs when it imposed the sentence
herein.
Although Williams attached to his post-sentence motion an undated
letter of support signed by the victim, the Commonwealth painted a much
different picture at the revocation sentencing hearing. First, the prosecutor
explained the original plea agreement, which included the reduction of a
charge of attempted rape to simple assault, was based upon the victim’s
desire that Williams not have to register as a sex offender because they
have children together. See N.T., 3/20/2015, at 6. However, the
prosecutor stated:
[The victim] is torn. She doesn’t want to see [] Williams
go away forever, but she has indicated that he needs help. She
is very afraid of him.
She told police just before he was arrested on this current
charge that there was an incident between the two of them
where he choked her in July of 2014 and he was charged with
that. … But she was pressured by Mr. Williams’ mother to drop
the charges. And she did not show up and those charges were
dropped.
So she is very scared of him and she wanted me to relay
that he does need help.
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N.T., 3/20/2015, at 7.11 Before imposing the revocation sentence, the trial
court commented: “This is scary stuff, … and I’m concerned for [the victim].
Something is amiss here.” Id. at 13. Therefore, the trial court was aware
of the victim’s relationship with Williams, including her concern regarding
how a long prison term might affect his relationship with his children, and
determined a state prison term was necessary to protect her.
Furthermore, although Williams asserts the court failed to consider his
rehabilitative needs – and emphasizes he had never before received any
treatment – we find his claims specious. Both the Commonwealth and the
trial court gave Williams the opportunity to correct his behavior when he was
originally sentenced to a term of probation. Indeed, that sentence included
the condition he “successfully complete Phase I” of batterer’s counseling.
N.T. 7/8/2014, at 5. Nevertheless, only three months later, he assaulted
the same victim again. Therefore, the court was well within its discretion
when it declined to give Williams a second chance.
Judgment of sentence affirmed.
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11
The prosecutor explained the victim was unable to attend the hearing
because she had to work. Id. at 6.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2016
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