Com. v. Chambers, E. ( 2019 )

J-S44004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERNEST CHAMBERS :
:
Appellant : No. 787 WDA 2018
Appeal from the Judgment of Sentence April 25, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012980-2014
BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 12, 2019
Appellant, Ernest Chambers, appeals from the judgment of sentence
entered on April 25, 2018, following the revocation of his probation. After
review, we affirm.
On February 11, 2015, Appellant entered an open guilty plea at trial
court docket number 12980-2014. N.T., 2/11/15, at 2. Appellant pleaded
guilty to one count each of: flight to avoid apprehension, trial or punishment;
fleeing or attempting to elude police officers; false reports to law enforcement
authorities; accidents involving damage to attended vehicle or property; and
driving while operating privilege is suspended or revoked.1 Id. at 2-5. The
trial court sentenced Appellant to concurrent terms of eleven and one-half to
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118 Pa.C.S. § 5126 (a), 75 Pa.C.S. § 3733, 18 Pa.C.S. § 4906 (a), 75 Pa.C.S.
§ 3743, and 75 Pa.C.S. § 1543, respectively.
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twenty-three months of incarceration, followed by three months of probation,
on the charges of flight to avoid apprehension and fleeing or attempting to
elude police officers.2 Sentencing Order, 2/11/15. The trial court imposed no
further penalty on the remaining charges. Id.
While serving the concurrent probationary terms of his sentences at trial
court docket number 12980-2014, Appellant was charged with and pleaded
guilty to robbery in Westmoreland County. N.T., 4/25/18, at 6. As a result
of the robbery conviction, the trial court held a violation of probation hearing
on April 25, 2018. The trial court revoked Appellant’s probation at trial court
docket number 12980-2014, and it resentenced Appellant to concurrent terms
of two and one-half to five years of incarceration. Id. at 11-12. On May 4,
2018, Appellant filed a timely post-sentence motion that the trial court denied
on May 8, 2018. Appellant filed a timely notice of appeal, and both the trial
court and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue for this Court’s
consideration:
In revoking and re-sentencing [Appellant] to an aggregate
sentence of 2½-5 years’ total state confinement, whether the trial
court abused its sentencing discretion by ignoring the gravity of
[Appellant’s] offense as it related to the impact on the life of the
victim and on the community, and the rehabilitative needs of
[Appellant], in violation of 42 Pa.C.S.A. § 9721(b)?
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2Flight to avoid apprehension and fleeing or attempting to elude police officers
were both graded as felonies of the third degree. Sentencing Order, 2/11/15.
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Appellant’s Brief at 6.
Appellant’s issue presents a challenge to the discretionary aspects of his
sentence, and it is well settled that “[t]he right to appellate review of the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). When 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).
As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 708; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code,
42 Pa.C.S.A. § 9781(b).
Id. at 170. Whether a particular issue constitutes a substantial question about
the appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001).
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Here, the first three requirements of the four-part test are met:
Appellant filed a timely appeal; Appellant preserved the issue in his post-
sentence motion; and Appellant included a statement raising this issue in his
brief pursuant to Rule 2119(f). Moury, 992 A.2d at 170. Therefore, we must
determine whether Appellant has raised a substantial question.
In order to determine whether Appellant has raised a substantial
question, we examine the Rule 2119(f) statement. Commonwealth v.
Ahmad, 961 A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will
be permitted only when the appellate court determines that there is a
substantial question that the sentence is not appropriate under the Sentencing
Code.3 Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A
substantial question exists where an appellant sets forth a plausible argument
that the sentence violates a particular provision of the Sentencing Code or is
contrary to the fundamental norms underlying the sentencing process. Id.In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the trial court
abused its discretion by imposing an excessive sentence by resentencing him
to a period of incarceration of two and one-half to five years of incarceration
but failed to consider relevant sentencing criteria, including the protection of
the public, the gravity of the underlying offense, and the rehabilitative needs
of Appellant pursuant to 42 Pa.C.S. § 9721(b). Appellant’s Brief at 22, 25. A
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3 42 Pa.C.S. § 9701 et seq.
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claim that the sentencing court failed to consider the factors set forth in
Section 9721(b) in conjunction with an assertion that the sentence imposed
was manifestly excessive raises a substantial question. Commonwealth v.
Roane, 204 A.3d 998, 1002-1003 (Pa. Super. 2019). Because we conclude
that Appellant has presented a substantial question, we proceed with our
analysis.
When reviewing the probation-revocation proceedings, this Court is
limited to determining the validity of the proceedings, the legality of the
sentence, and the discretionary aspects of the sentence imposed. See
Commonwealth v. Cartrette, 83 A.3d 1030, 1033-1034 (Pa. Super. 2013)
(explaining that, notwithstanding prior decisions which stated our scope of
review in revocation proceedings is limited to the validity of the revocation
proceedings and the legality of sentence, this Court’s scope of review on
appeal from revocation sentencing also includes challenges to the
discretionary aspects of the sentence imposed). “[T]he revocation of a
probation sentence is a matter committed to the sound discretion of the trial
court and that court’s decision will not be disturbed on appeal in the absence
of an error of law or an abuse of discretion.” Commonwealth v. MacGregor,
912 A.2d 315, 317 (Pa. Super. 2006).
Additionally, when imposing a sentence following the revocation of
probation, the trial court is limited only by the maximum sentence that it could
have imposed originally at the time it ordered the probationary sentence.
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Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000); 42 Pa.C.S.
§ 9771(b). Once probation has been revoked, a sentence of total confinement
may be imposed if “(1) the defendant has been convicted of another crime[.]”
42 Pa.C.S. § 9771(c)(1); Fish, 752 A.2d at 923.
Furthermore, because the Sentencing Guidelines do not apply to
sentences imposed following the revocation of probation,4 we are guided by
the provisions of 42 Pa.C.S. § 9721, which provide the general standards that
a court is to apply in sentencing a defendant. Commonwealth v. Ferguson,
893 A.2d 735, 739 (Pa. Super. 2006).
When imposing a sentence, the sentencing court must
consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of defendant, and
it must impose an individualized sentence. The sentence should
be based on the minimum confinement consistent with the gravity
of the offense, the need for public protection, and the defendant’s
needs for rehabilitation.
Id. In addition, in all cases where the court “resentences an offender following
revocation of probation, county intermediate punishment or state
intermediate punishment or resentences following remand, 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). Guided by these standards, we must determine
whether the court abused its discretion by imposing a “manifestly excessive”
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4 204 Pa. Code § 303.1.
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sentence that constitutes “too severe a punishment.” Ferguson, 893 A.2d at
739. Moreover, this Court has explained that when the “sentencing court had
the benefit of a presentence investigation report (‘PSI’), we can assume the
sentencing court ‘was aware of relevant information regarding defendant’s
character and weighed those considerations along with mitigating statutory
factors.’” Moury, 992 A.2d at 171.
In its Pa.R.A.P. 1925(a) opinion, the trial court addressed Appellant’s
issue as follows:
In the sole issue raised by [Appellant] on appeal he
contends that it was an abuse of discretion in imposing the
concurrent sentences of 2½ to 5 years [of] confinement at his
probation violation hearing because the sentences ignore 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
[Appellant], factors that are required to be considered in imposing
a sentence as required by 42 Pa.C.S.A. §9721 which provides, in
pertinent part, as follows:
“In selecting from the alternatives set forth in
subsection (a), 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
[Appellant].” 42 Pa. C.S.A. § 9721 (b)[.]
The record in this case establishes that [Appellant] has an
extensive hi[s]tory of criminal offenses beginning in 1999. This
history is discussed in detail in presentence reports of March 22,
2016 and April 11, 2018 which reflect [Appellant’s] convictions in
1999, 2003, 2006 and 2014. When a presentence report is
obtained it is presumed that the sentencing court reviewed and
considered the report and weighed all relevant factors in
fashioning the [Appellant’s] sentence. Commonwealth v. Fowler,
893 A.2d 758, 767 (Pa.Super.2006).
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The offenses for which [Appellant] has been convicted
include charges of possession and possession with intent to deliver
controlled substances; possession of drug paraphernalia; false
identification to authorities; resisting arrest; repeated offenses
related to driving while operating privileges suspended or
revoked; and driving unregistered vehicles. [Appellant] was also
convicted of burglary, recklessly endangering another person and
theft by unlawful taking related to a home invasion in
Westmoreland County, Pennsylvania. In addition, the evidence at
the probation violation hearing establishes repeated and
continued failure to abide by conditions of probation which include
fleeing rehabilitation facilities and repeated failures of drug tests.
The presentence report of March 22, 2016 describes that
[Appellant] was “not amendable to supervision and was in non-
compliance of almost every rule that he had in place under the
[Appellant’s] supervision plan.” (Presentence Report 3/22/16, p.
5) It was also noted that [Appellant] was not reporting as directed
and was found not to be living at his listed address and continually
missing curfews. It was noted that he was given “chances to take
advantage of treatment” but numerous attempts to help the
[Appellant] were to “no avail”. (Presentence Report 3/22/16, p.
5)[.]
In this case the factors set forth in the sentencing code were
properly considered. The facts surrounding the offense indicate
that [Appellant] was driving without a license and when stopped
by the police provided false information. [Appellant] then fled,
crashing into another vehicle and lead police on a chase that
endangered not only the police officers but the community as a
whole. As noted above, [Appellant’s] conduct is not an isolated
event but represents a pattern of repeated criminal conduct that
has continued and escalated.
The rehabilitative needs of [Appellant] were specifically
considered. Despite the fact that [Appellant] was given numerous
opportunities for treatment and rehabilitation through periods of
probation, [Appellant] repeatedly ignored and violated the terms
of his probation and demonstrated a disregard for outpatient
opportunities for treatment and rehabilitation. The record clearly
demonstrates that the sentence of incarceration was appropriate
not only for the protection of the community as a whole but also
to facilitate [Appellant’s] long term rehabilitation. Therefore, there
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was no abuse of discretion in the sentences imposed on
[Appellant].
Trial Court Opinion, 12/19/18, 4-6.
After review, it is undisputed that Appellant violated the terms of his
probation by committing new crimes. N.T., 4/25/18, at 6-8. As a result, the
trial court had the authority to resentence Appellant to a term of total
confinement pursuant to 42 Pa.C.S. § 9771(c)(1). We reiterate that the trial
court was permitted to impose any sentence that was available to it at the
time of Appellant’s original sentencing. Fish, 752 A.2d at 923. Appellant’s
revocation sentence of two and one-half to five years of incarceration at each
count on trial court docket number 12980-2014 was within the sentencing
parameters available to the trial court when it initially sentenced Appellant.
See 18 Pa.C.S. § 1103(3) (providing maximum sentence of confinement of
seven years for a felony of the third degree).
Moreover, and contrary to Appellant’s argument, the trial court did
consider the factors set forth in Section 9721, and it stated on the record the
reasons for the sentence imposed following the revocation of Appellant’s
probation. The record reflects that the sentencing court had the benefit of a
PSI report and was aware of Appellant’s history, rehabilitative needs, and
other mitigating factors, including Appellant’s family life and employment.
N.T., 4/25/18, at 2, 9. The trial court then acknowledged Appellant’s repeated
failures to abide by the conditions of his prior sentences of probation. Id. at
10-11. The trial court stated: “I hear you. You have to look at the record I’m
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looking at. You picked up four convictions, walked away from Renewal
[community corrections center], were involved in a home invasion, tested
positive [for drugs]. After a while, I can only give you so many breaks.” Id.
at 13.
The record reflects that the trial court weighed all of these factors in
sentencing Appellant, and we discern no merit in Appellant’s argument. After
review, we conclude that the trial court’s resentencing of Appellant to an
aggregate term of two and one-half to five years of incarceration, allowing
credit for time already served, was not an abuse of discretion. Accordingly,
we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2019
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