Com. v. Morales, T. ( 2019 )

J-S11009-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY MORALES :
:
Appellant : No. 843 EDA 2018
Appeal from the Judgment of Sentence February 13, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000108-2007,
CP-46-CR-0000109-2007, CP-46-CR-0007623-2012
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 06, 2019
Appellant, Timothy Morales, appeals from the judgment of sentence
entered on February 13, 2018, in the Montgomery County Court of Common
Pleas following the revocation of his probation.1 After review, we affirm.
____________________________________________
1 The appeal paragraph reveals that this appeal involves three trial court
docket numbers: CP-46-CR-0000108-2007, CP-46-CR-0000109-2007, and
CP-46-CR-0007623-2012. On March 8, 2018, Appellant filed a separate notice
of appeal at each docket, and this Court assigned each appeal a separate
Superior Court docket number: 843 EDA 2018, 845 EDA 2018 and 847 EDA
2018, respectively. On April 12, 2018, this Court issued a rule to show cause
why the appeals at 845 EDA 2018 and 847 EDA 2018 should not be dismissed
as duplicative of the instant appeal at 843 EDA 2018. Appellant did not
respond to the rule, and on May 25, 2018, this court dismissed the appeals at
845 EDA 2018 and 847 EDA 2018 as duplicative. Accordingly, the appeals at
CP-46-CR-0000108-2007, CP-46-CR-0000109-2007, and CP-46-CR-
0007623-2012, shall be addressed at the instant docket.
J-S11009-19
In its opinion, the trial court set forth the relevant facts and procedural
history of this matter as follows:
On May 7, 2007, on docket numbers 108-2007 and 109-
2007, Appellant pled guilty to one count of Possession with Intent
to Deliver (35 P.S. § 780-113(a)(30)[)] and the court imposed a
sentence of three (3) to twenty[-]three (23) months of
imprisonment, followed by a two (2) year term of probation
consecutive to the termination of parole. (See Disposition,
5/7/07).
On April 29, 2013, on docket number 7623-2012, Appellant
pled guilty to one count of Terroristic Threats (18 Pa.C.S.A.
§2706(a)(1)) and one count of Harassment (18 Pa.C.S.A.
§2709(a)(4)) and the court imposed a sentence of time served to
twenty[-]three (23) months of imprisonment, followed by a two
(2) year term of probation consecutive to the termination of
parole. (See Disposition, 4/23/2013).2
2 Although Appellant has committed approximately
seven (7) probation/parole violations on the 108-
2007, 109-2007 and 7623-2012 docket numbers, we
will limit the procedural history to the violation at
issue.
On June 26, 2017, the Montgomery County Adult Probation
and Parole Department notified Appellant that he was being
charged for a violation of the conditions of his probation/parole;
specifically, his June 24, 2017 arrest for violation of the controlled
substances act, drug paraphernalia and tampering with evidence
and his failure to pay fines and costs as directed by the court. (See
Probation/Parole Violation Acknowledgment, executed 6/29/17,
docketed 6/30/17).3 On February 13, 2018, Appellant waived his
right to a Gagnon I hearing and during a Gagnon II hearing,[2]
Appellant stipulated to violating his probation/parole in exchange
for a joint recommendation of a sentence of time served to
twenty[-]three (23) months of imprisonment on docket numbers
108-2007 and 109-2007 and a sentence of time served to twelve
(12) months of imprisonment on docket number 7623-2012 to run
____________________________________________
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (setting forth the procedural
requirements for probation and parole revocations).
-2-
J-S11009-19
concurrent to the 108-2007 and 109-2007 sentence. Appellant
completed a written probation/stipulation colloquy and Appellant’s
counsel administered a supplemental oral colloquy to Appellant on
the record. The court subsequently found that Appellant had
knowingly, intelligently and voluntarily stipulated to the violation
of his probation/parole and accepted the joint recommendation.
(N.T. Gagnon II Stipulation, 2/13/18, at 10). Consequently, the
court sentenced Appellant to a sentence of time served to
twenty[-]three (23) months of imprisonment on docket numbers
108-2007 and 109-2007 and a sentence of time served to twelve
(12) months of imprisonment on docket number 7623-2012 to run
concurrent to the 108-2007 and 109-2007 sentence.4 (See N.T.
Gagnon II Stipulation, 2/13/18, at 10-11, Probation/Parole
Stipulation Colloquy, executed 2/13/18, docketed 2/13/18;
Disposition, 2/13/18).
3 Appellant was imprisoned pending a Gagnon
hearing.
4 The sentences imposed on December 23, 2014
relating to Appellant’s previous probation/parole
violation were revoked. (See Disposition, 2/13/18).
Trial Court Opinion, 5/10/18, at 1-2.
Appellant filed a motion for reconsideration of his sentence that the trial
court denied on February 26, 2018. Appellant filed a timely notice of appeal
on March 8, 2018. Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue for this Court’s
consideration:
I. Was [Appellant’s] plea voluntary, knowing, and intelligent
where the colloquy did not address the nature of charges, the
written colloquy was incomplete, [Appellant] had been
incarcerated eight months on a traffic stop and was highly
motivated to get out of jail, and there was no discussion of
[Appellant’s] indigence as a defense to probation violation charges
arising from a non-willful failure to pay?
-3-
J-S11009-19
Appellant’s Brief at 1.3
In an appeal from a sentence imposed following the revocation of
probation, we may review the validity of the revocation proceedings, the
legality of the sentence, and the discretionary aspects of any new sentence
imposed. Commonwealth v. Cartrette, 83 A.3d 1030, 1033-34 (Pa. Super.
2013) (en banc). When a probationer stipulates to a probation violation, he
surrenders certain rights; therefore, a probationer’s stipulation to a probation
violation must be voluntary and supported by the record. Commonwealth
v. Bell, 410 A.2d 843, 844 (Pa. Super. 1979).
In the case at bar, the Commonwealth asserts that Appellant failed to
preserve his challenge to the revocation proceedings. Commonwealth’s Brief
at 7. We are constrained to agree.
Appellant waived his issue on appeal due to his failure to raise any
objection to the validity of his stipulation to violating his probation at the
revocation hearing. See Commonwealth v. King, 430 A.2d 990 (Pa. Super.
1981) (citing Commonwealth v. Collins, 424 A.2d 1254 (Pa. 1981) (holding
that objections not raised during a counselled revocation proceeding will not
be considered on appeal); see also Pa.R.A.P. 302(a) (“Issues not raised in
____________________________________________
3 We note that although Appellant uses the term “plea,” he is actually
challenging the validity of his stipulation to violating probation.
-4-
J-S11009-19
lower court are waived and cannot be raised for the first time on appeal.”).4
We conclude that Appellant failed to preserve his sole issue on appeal.
Assuming, arguendo, that Appellant had objected, we would conclude
the record established that Appellant voluntarily stipulated to violating his
probation. Appellant stated that he understood that he violated his probation
and waived the requirement that the Commonwealth prove a probation
violation by a preponderance of the evidence. This stipulation is reflected in
the written colloquy and in the notes of testimony. Probation Revocation
Colloquy, 2/13/18; N.T., 2/13/18, at 7-10.
For the reasons set forth above, we conclude that Appellant failed to
preserve his issue on appeal. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
____________________________________________
4 As noted earlier, Appellant filed a motion for reconsideration of his sentence.
Motion for Reconsideration, 2/22/18. In the motion, Appellant mentioned that
any probation violation was “technical in nature at best,” and stated that if the
violations were technical, the trial court should have made additional findings.
Motion for Reconsideration, 2/22/18, at ¶¶ 9-10. However, Appellant’s
averment in the motion was undeveloped, and Appellant never asserted that
his stipulation to violating probation was involuntary or invalid. Thus, we
conclude that this motion did not preserve Appellant’s issue on appeal.
Pa.R.A.P. 302(a).
-5-
J-S11009-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/19
-6-