Com. v. Wilson, W. ( 2016 )

J. S57004/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WESLEY A. WILSON, : No. 661 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, March 25, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0008824-2008
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 23, 2016
Wesley A. Wilson appeals from the judgment of sentence of March 25,
2015, following revocation of his probation. We affirm.
The trial court has aptly summarized the history of this matter as
follows:
In this case, [appellant] pled guilty to one
count of criminal trespass, one count of simple
assault and one count of criminal mischief on
December 10, 2008. The factual basis for the guilty
plea was that [appellant] assaulted his girlfriend by
punching her in the back of her head and then
dragging her and slamming her head onto the hood
of a car. The victim ran into her house and
[appellant] continued the assault inside the
residence. Two females rushed to the victim’s aid
and they were both assaulted by [appellant].
Relative to the criminal trespass conviction, this
Court imposed a sentence of imprisonment of not
less than 11½ months nor more than 23 months
followed by a term of probation of three years. This
* Retired Senior Judge assigned to the Superior Court.
J. S57004/16
Court imposed concurrent terms of two years’
probation on the remaining counts. The probation
terms were consecutive to parole but concurrent with
each other. [Appellant] was ordered to pay
$4,280.79 in restitution.
After he was paroled, [appellant] began
serving the probationary portion of his sentence. On
January 10, 2010, [appellant] tested positive for
marijuana and cocaine. He was warned that
continued drug use would result in a probation
violation hearing. [Appellant] failed to report to
probation. His supervising probation officer
contacted [appellant] and [appellant] then reported
to his probation officer. During the month of April,
2010, [appellant] failed to report to probation. He
was cited as a technical violator for failing to report,
failure to pay restitution and failure to abstain from
drug use.
On March 9, 2011, [appellant] was arrested
and charged with simple assault and terroristic
threats. [Appellant] pled guilty to the summary
offense of disorderly conduct.
On November 11, 2011, [appellant] was
charged with criminal mischief, stalking and
terroristic threats for threatening his girlfriend and
throwing a brick through the window of her
residence. He was ultimately convicted of the
charges and placed on two years’ probation by
another member of this Court. This Court convened
a probation violation hearing relative to this
conviction. This Court revoked [appellant]’s term of
probation and issued a new sentence. [Appellant]
was sentenced to a term of imprisonment of not less
than 6 months and not more than 12 months
followed by three concurrent terms of two-years’
probation. [Appellant] continued his poor
performance of reporting to his probation officer
after he was paroled from this sentence.
-2-
J. S57004/16
On October 15, 2013, [appellant] was arrested
again for a domestic incident. These charges were
ultimately withdrawn.
[Appellant] was again arrested for a domestic
incident. On August 4, 2014 [appellant] pled guilty
to simple assault and recklessly endangering another
person and was sentenced to a term of probation of
two years. As a result of this conviction, this Court
convened a probation violation hearing and revoked
[appellant]’s probation and sentenced him [to not
less than 18 months nor more than 48 months’
incarceration, followed by 2 years of probation]. It
was this most recent conviction that gave rise to the
revocation of probation at issue in this appeal.
Trial court opinion, 7/29/15 at 1-3.
Appellant’s motion for reconsideration of sentence was denied, and
this timely appeal followed. Appellant has complied with Pa.R.A.P. 1925(b),
and the trial court has filed a Rule 1925(a) opinion.
Appellant has raised the following issue for this court’s review,
challenging the discretionary aspects of his sentence following revocation of
probation:
I. Whether the trial court abused its discretion by
revoking and re-sentencing [appellant] to
18-48 months [of] incarceration when it failed
to consider relevant and mandatory sentencing
criteria, including the rehabilitative needs of
[appellant], as required by 42 Pa.C.S.A.
§ 9721(b)?
Appellant’s brief at 5.
Our standard of review is well-settled:
The imposition of sentence following the
revocation of probation is vested within
-3-
J. S57004/16
the sound discretion of the trial court,
which, absent an abuse of that
discretion, will not be disturbed on
appeal. An abuse of discretion is more
than an error in judgment—a sentencing
court has not abused its discretion unless
the record discloses that the judgment
exercised was manifestly unreasonable,
or the result of partiality, prejudice, bias
or ill-will.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015), quoting
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015). See also Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of
review in an appeal from a revocation sentencing includes discretionary
sentencing challenges).
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.
-4-
J. S57004/16
42 Pa.C.S. § 9771(c).
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note
that the sentencing guidelines do not apply to sentences imposed as the
result of probation revocations. Id. at 27 (citations omitted).
An appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no
absolute right to do so but, rather, must petition this
Court for permission to do so. [Commonwealth v.
Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
42 Pa.C.S.A. § 9781(b). Specifically, the appellant
must present, as part of the appellate brief, a
concise statement of the reasons relied upon for
allowance of appeal. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f). In that statement, the appellant
must persuade us there exists a substantial question
that the sentence is inappropriate under the
sentencing code. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f).
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).
In general, an appellant may demonstrate the
existence of a substantial question by advancing a
colorable argument that the sentencing court’s
actions were inconsistent with a specific provision of
the sentencing code or violated a fundamental norm
of the sentencing process. Malovich, 903 A.2d at
1252. While this general guideline holds true, we
conduct a case-specific analysis of each appeal to
decide whether the particular issues presented
actually form a substantial question. Id. Thus, we
do not include or exclude any entire class of issues
as being or not being substantial. Id. Instead, we
evaluate each claim based on the particulars of its
own case. Id.Id. at 289-290.
-5-
J. S57004/16
In his Rule 2119(f) statement, appellant claims that the trial court
failed to consider all relevant and mandatory sentencing criteria, including
his rehabilitative needs as required by 42 Pa.C.S.A. § 9721(b). (Appellant’s
brief at 17.) Appellant’s assertion that the trial court failed to consider his
rehabilitative needs raises a substantial question. See Commonwealth v.
Baker, 72 A.3d 652, 662 (Pa.Super. 2013), appeal denied, 86 A.3d 231(Pa. 2014) (finding, inter alia, assertion that trial court failed to account for
appellant’s rehabilitative needs was substantial question suitable for review);
see also Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.Super. 2009)
(“an averment that the court sentenced based solely on the seriousness of
the offense and failed to consider all relevant factors raises a substantial
question” (citations omitted)). “Additionally, a substantial question that the
sentence was not appropriate under the Sentencing Code may occur even
where a sentence is within the statutory limits.” Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010), appeal denied, 13 A.3d
475 (Pa. 2010), citing Commonwealth v. Titus, 816 A.2d 251 (Pa.Super.
2003). Hence, we will consider the merits of appellant’s sentencing
challenge.
The record reflects that while the trial court did consider appellant’s
rehabilitative needs, it was clear that prior attempts at rehabilitation had
proved ineffective and appellant remained a danger to the public,
particularly women:
-6-
J. S57004/16
I do not believe that allowing [appellant] to reenter
the community at this time is a good idea. I do think
that a county sentence and county supervision have
not worked or else we wouldn’t be here. And I think
[appellant]’s conduct demonstrates that the longer
period of incarceration is required to protect the
community and hopefully get his attention while he’s
still young enough to rethink what he’s doing and
change his ways.
Notes of testimony, 3/25/15 at 10.
And you pick on women. Apparently you can’t hold
your temper or something. I’m not sure what it is.
But you physically harm people. And apparently
those are women who are close to you in your life
from what I’m reading. So you represent a very
specific danger to the community that I think the
community has tolerated long enough.
Id. at 9-10.
Appellant committed further crimes while on probation, including
crimes of domestic violence. He tested positive for drugs and refused to
report to his probation officer. He has not paid any restitution. (Trial court
opinion, 7/29/15 at 6.) He was given several county sentences, but failed to
conform his conduct to the law. The trial court did consider appellant’s need
for treatment and rehabilitation, but ultimately decided that a sentence of
total confinement was necessary to protect the public and to vindicate the
authority of the court. (Id. at 6-7.) See also notes of testimony, 3/25/15
at 9 (“But we tried a lengthy county sentence with you, and it made no
impression on you from my point of view. You got 11½ to 23 months in this
case and you’re back harming other women when you get your freedom
-7-
J. S57004/16
back.”). The trial court did not abuse its discretion in revoking appellant’s
probation and re-sentencing him to a state sentence of 18-48 months’
imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
-8-