Com. v. Longo, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM C. LONGO,
Appellant No. 1032 WDA 2015
Appeal from the Judgment of Sentence June 8, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005635-2009, CP-02-CR-0005696-
2009
BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016
Appellant, William C. Longo, appeals from the judgment of sentence
entered on June 8, 2015, following the revocation of his probation. We
affirm.
The trial court set forth the relevant facts and procedural background
of this matter as follows:
[Appellant] was charged at CC 200905635 with Theft by
Unlawful Taking-Movable Property, Receiving Stolen Property
and Access Device Fraud[;] and at CC 200905696 with Forgery,
Access Device Fraud, Receiving Stolen Property and Criminal
Conspiracy. He appeared before this [c]ourt on October 27,
2009 and entered a general plea of guilty to all charges. He was
sentenced to a term of imprisonment of nine (9) to 18 months at
the Forgery charge and paroled forthwith. He was also
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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sentenced to two (2) consecutive terms of probation of two (2)
years each. No Post-Sentence Motions were filed and no direct
appeal was taken.
[Appellant] next appeared before this [c]ourt on August
28, 2012 for a probation violation hearing. Upon finding that
[Appellant] was a convicted violator, this [c]ourt revoked the
previous terms of probation and re-imposed an additional two
(2) year term of probation. Again, no Post-Sentence Motions
were filed and no direct appeal was taken.
[Appellant] again appeared before this [c]ourt on July 6,
2015 [sic][1] for a probation violation hearing. Upon finding that
[Appellant] was a convicted violator and was also in total
technical noncompliance, this [c]ourt revoked the previous term
of probation and imposed consecutive terms of imprisonment of
three and one half (3 1/2) to seven (7) years at CC200905635
and 33 months to 66 months at CC200905696.
Trial Court Opinion, 1/20/16, at 1–2 (footnotes omitted).2
Appellant filed a notice of appeal on July 2, 2015. The trial court
initially directed Appellant to comply with Pa.R.A.P. 1925 by August 28,
2015, but, upon Appellant’s motion, it extended compliance to October 15,
2015. Both Appellant and the trial court complied with Rule 1925.
Appellant raises the following issues on appeal:
I. Whether the revocation sentences imposed at CC
200905635 and CC 200905696 were manifestly excessive,
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1
The trial court erroneously refers to the date of probation revocation and
sentencing as July 6, 2015. The correct date was June 8, 2015.
2
On June 18, 2015, Appellant filed a motion to reconsider sentence, which
the trial court granted in part on July 6, 2015, correcting the sentence
imposed at CC200905696 from three and one-half to seven years imposed
on June 8, 2015, to thirty-three to sixty-six months, retroactive to June 8,
2015.
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unreasonable, and an abuse of discretion where the trial
court failed to consider the personal history, character and
rehabilitative needs of [Appellant] as required by 42
Pa.C.S.A § 9721(B) and 42 Pa.C.S.A. § 9725?
II. Whether the trial court relied upon misinformation and/or
incorrect facts in resentencing [Appellant] at CC
200905635 and CC 200905696?
Appellant’s Brief at 5.
Appellant argues that his sentence was excessive and that the
sentencing court failed to consider his personal history, character, and
rehabilitative needs. These issues are challenges to the discretionary
aspects of Appellant’s sentence. Commonwealth v. Malovich, 903 A.2d
1247 (Pa. Super. 2006); Commonwealth v. Lutes, 793 A.2d 949 (Pa.
Super. 2002).
As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030(Pa. Super. 2013), our scope of review following the revocation of probation
is not limited solely to determining the validity of the probation revocation
proceedings and the authority of the sentencing court to consider the same
sentencing alternatives that it had at the time of the initial sentencing.
Rather, it also includes challenges to the discretionary aspects of the
sentence imposed. Specifically, we unequivocally held that “this Court’s
scope of review in an appeal from a revocation sentencing includes
discretionary sentencing challenges.” Id. at 1034. Further, as we have long
held, the imposition of sentence following the revocation of probation is
vested within the sound discretion of the trial court, which, absent an abuse
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of that discretion, will not be disturbed on appeal. Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
To effectuate this Court’s jurisdiction when challenging the
discretionary aspects of a sentence, Appellant must satisfy a four-part test
by (1) preserving the issue in the court below, (2) filing a timely notice of
appeal, (3) including a Pa.R.A.P. 2119(f) statement in his appellate brief,
and (4) raising a substantial question for our review. Commonwealth v.
Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (quoting Commonwealth v.
Tejada, 107 A.3d 788, 797 (Pa. Super. 2015), appeal denied, 119 A.3d 351(Pa. 2015)).
Applying the four-part analysis to the instant case, we find that
Appellant (1) preserved the issue; (2) timely filed his notice of appeal; and
(3) complied with Pa.R.A.P. 2119(f) by including in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of his sentence. Appellant’s Brief at 18–24.
Acknowledging that “the determination of what constitutes a substantial
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question must be evaluated on a case-by-case basis,” Commonwealth v.
Johnson, 125 A.3d 822, 826 (Pa. Super. 2015), we note that this Court has
held that an excessiveness claim—in conjunction with an assertion that the
court failed to consider mitigating factors—raises a substantial question.
See, e.g., Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014) (within excessiveness claim, substantial question is raised when the
appellant sufficiently articulates the manner in which the sentence violates
either a specific provision of the Sentencing Code or a particular
fundamental norm underlying the sentencing process). Therefore, we
proceed to address the merits of Appellant’s issues.
In his first issue, Appellant asserts that the trial court failed to consider
any of the assessments and evaluations provided by the State Intermediate
Punishment Program. Appellant’s Brief at 31. Appellant contends, instead,
the trial court focused exclusively on the “length and volume” of Appellant’s
criminal history. Id. Appellant also suggests that he exhibited motivation
for lifestyle change, had shown himself to be a responsible worker while
confined in jail, and now had the requisite family support from his girlfriend
and infant son “to turn his life around.” Id. at 33. Thus, he argues that his
sentence was excessive.
Prior to imposing sentence upon revocation of probation, the trial court
stated as follows:
First off, the 16 months that you’ve been drug free, I cannot
really give you a lot of credit since you’ve been incarcerated
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during those months, although I do understand it is sometimes
possible to get drugs while you’re incarcerated.
You’re totally, and have been since 2004, technically non-
compliant. You don’t report, you don’t make any efforts to pay
into the court cases, you don’t give samples of urine.
In 2009 I had you on four cases. I revoked your
probation, and I gave you a new term of probation, and within
one month, one month of that, you acquired new charges.
I’ve had you on regular supervision. I’ve given you JRS
plans to help you with your rehabilitation. I had you on house
arrest. You are now a convicted violator for three or four cases
in front of Judge Lazzara.
Judge Cashman has you on 15 violations. Today right now
you have 26 active probations.
You win. You’ve worn me down. I don’t think anybody’s
going to help you.
I thought an interesting side note, that you went out,
spent money on pornography when you were in placement.
* * *
Prior incarceration did no good. I’ve seen no evidence of
rehabilitation. And if you look over your crimes, there are some
crimes of greed and not need.
N.T., 6/8/15, at 9–10, 11.
In Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014), the
Pennsylvania Supreme Court reversed our misapplication of sentencing
provisions when we vacated the common pleas court’s imposition of the
judgment of sentence following revocation of probation therein. Our High
Court explained that we had given insufficient deference to the revocation
court’s imposition of the sentence following the revocation of probation, and
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it reinstated Mr. Pasture’s judgment of sentence. The Court explained that
in initial sentencing proceedings, a trial court has broad discretion in
sentencing a defendant, and concomitantly, “the appellate courts utilize a
deferential standard of appellate review in determining whether the trial
court abused its discretion in fashioning an appropriate sentence.” Id. at
27. In particular, the Supreme Court noted that a sentencing court enjoys
“an institutional advantage to appellate review, bringing to its decisions an
expertise, experience, and judgment that should not be lightly disturbed.”
Id. (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).
The Pasture Court expanded on its view of institutional advantage, as
follows:
The sentencing court’s institutional advantage is, perhaps, more
pronounced in fashioning a sentence following the revocation of
probation, which is qualitatively different than an initial
sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a
defendant reappears before the court for sentencing proceedings
following a violation of the mercy bestowed upon him in the form
of a probationary sentence. For example, in such a case,
contrary 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)).
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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).
* * *
[F]ollowing 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, particularly where,
as here, the trial judge had the benefit of a PSI during the
initial sentencing proceedings. See Walls, 592 Pa. at 574 n.
7, 926 A.2d at 967 n. 7 (“Where PSI exists, we shall continue to
presume that the sentencing judge was aware of the relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.”).
* * *
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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, 107 A.3d at 27–29 (footnotes omitted) (emphasis added).
Herein, the trial court apparently was aware of more information than
defense counsel, as it possessed the most recent PSI, which was dated
August 15, 2014. N.T., 6/8/15, at 2. The court advised defense counsel
that it had reviewed the report; counsel admitted that she was not aware of
any PSI reports. Id. at 3. The trial court then offered to give defense
counsel a copy of the report. Id. Thus, we can presume that the trial court
was “aware of the relevant information regarding [Appellant’s] character and
weighed those considerations along with mitigating statutory factors.”
Pasture, 107 A.3d at 28.
Furthermore, Appellant’s parole officer, Kenneth Walls, testified that
Appellant was “non-compliant with just about everything in terms of the
conditions of community supervision.” N.T., 6/8/15, at 2. In his two cases,
Appellant owed over $3,700 in restitution; Appellant last made a payment in
the amount of $10.00 on April 12, 2012, in one case, and $50.00 on August
23, 2010, in the other. Id.
Defense counsel explained to the court that Appellant had been
evaluated for the Pennsylvania Intermediate Punishment Program (“IP”) on
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January 5, 2015, and was found “to be appropriate.” N.T., 6/8/15, at 5, 6.
Counsel apprised the court that Appellant had been a long-time drug user
but presently was clean and sober. Id. at 6. Counsel described all of the
tests and scales utilized in assessing Appellant for the IP program. The
court also listened to Appellant’s own proffer regarding his past and present
rehabilitative needs.
The record reveals that the trial court possessed a multitude of
information relevant to Appellant. Considering the record as a whole, we
conclude that the court rendered a meaningful consideration of all of the
factors bearing upon Appellant’s sentencing, and we reject Appellant’s claim.
Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003)
(record as a whole must reflect court’s meaningful consideration of
sentencing factors).
Appellant’s second issue asserts that the trial court relied upon
misinformation and/or incorrect facts in resentencing him. This claim is
based on the court’s comment, “And in my heart I know you have
committed other offenses for which you were not arrested, which people did
not report you with.” N.T., 6/8/15, at 10–11. In support of this claim,
Appellant cites multiple cases, all of which are distinguishable. For example,
in Commonwealth v. Sypin, 491 A.2d 1371 (Pa. Super. 1985), the
sentencing court suggested men like the appellant were responsible for
children’s disappearances and deaths, but he was not charged in connection
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with the disappearance or death of any child. Id. at 1372. The Sypin
Court, however, noted the fact that the sentencing judge therein failed to
consider the appellant’s history of mental illness. Id. at 1375. Most
importantly, Sypin, and the other cases cited by Appellant, involved matters
regarding the application of Sentencing Guidelines, a consideration not
present herein.
That is not to say that a sentencing court may rely upon an
impermissible factor in sentencing. It has long been clear that a sentence is
invalid if it appears from the record that the sentencing court relied on an
impermissible consideration. See e.g., Commonwealth v. Bethea, 379
A.2d 102 (Pa. 1977) (sentence invalid if it appears from the record that
the trial court relied in whole or in part upon impermissible factor). That
concern is not present in the instant case. The instant trial court’s comment
was made merely in passing, in response to Appellant’s denial regarding his
purchase of pornography while he was in placement. N.T., 6/8/15, at 10.
A review of the record indicates the court did not rely on an
impermissible factor in sentencing Appellant. The court correctly considered
the record as a whole, including Appellant’s history while on probation,
Appellant’s character, and the circumstances surrounding Appellant’s most
recent probation violation. The court concluded that incarceration for the
specified time was appropriate because Appellant’s conduct indicated he was
likely to continue in the path he had chosen over a period of years, despite
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the court’s past grants of leniency. The record adequately supports the
court’s decision. Accordingly, there is no reason to disturb the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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