Com. v. Grey, L. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAVAUGN GREY :
:
Appellant : No. 1371 WDA 2017
Appeal from the Judgment of Sentence August 24, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012155-2015
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY PANELLA, J.: FILED NOVEMBER 09, 2018
The trial court found Lavaugn Grey had violated the conditions of his
sentence of probation, and revoked the sentence. The court then re-sentenced
Grey to a term of imprisonment of three to six years, which falls in the
standard range of the sentencing guidelines. Grey does not contest the
revocation of his probation. He claims only that the court abused its discretion
in imposing sentence. We affirm.
As noted by the Commonwealth, the transcript from Grey’s guilty plea
is not in the certified record. It was Grey’s responsibility to ensure this
document was part of the certified record on appeal. See, e.g., Everett Cash
Mutual Insurance Company v. T.H.E. Insurance Company, 804 A.2d 31,
34 (Pa. Super. 2002). However, we conclude a review of this transcript is not
necessary, as Grey does not challenge the trial court’s recitation of the facts.
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On January 27, 2016, Grey pled guilty to one count of criminal trespass,
one count of terroristic threats, and one count of resisting arrest. The court
sentenced him to two years’ probation on the criminal trespass conviction,
and no further penalty on the terroristic threats and resisting arrest
convictions.
On September 21, 2016, Grey was arrested on charges of, among
others, burglary and aggravated assault involving the same victim. The court
held a probation revocation hearing nearly a year later to assess Grey’s status.
The court opened the hearing by notifying Grey that a standard range
sentence upon revocation would be a minimum sentence of 33 to 48 months.
Grey, represented by counsel, did not contest this calculation at the hearing,
and has not raised any challenge to it on appeal.
The hearing proceeded to the testimony of Grey’s probation officer.
PROBATION OFFICER ALLEN: The defendant’s conduct while
under supervision can be characterized as marginal at best. He
reported as directed. He was ordered to have no [violent contact
with the victim,] which is the subject of this report.
He was … ordered to have no contact with [the victim.] However,
he was arrested on September 21 for aggravated assault on an
unborn child, endangering the welfare of children, burglary, [and]
simple assault.
The defendant was accused of calling the victim all night. Then he
showed up outside of her residence, punched the screen window
in, then climbed through the window in the residence where he
began attacking her. He jumped on top of her and began choking
her, punching her multiple times in the head, face, stomach, and
pulled her hair. The victim was seven weeks pregnant at the time.
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The defendant was leaving the residence. He kicked the bouncy
chair in which had his small son in it.
He was court ordered to complete a drug and alcohol evaluation.
In September, 2016, he did complete it; however, he did not meet
the criteria for the drug and alcohol treatment.
He was court ordered to complete the GED program. He reported
until he was arrested for the attributable charges.
He was also instructed to complete the Batterer’s Intervention
Program. The Probation Office has not received any type of
verification that he had completed that[.]
N.T., Revocation Hearing, 8/24/17, at 2-3.
Grey’s counsel provided the court with a verification that Grey had
completed the Batterer’s Intervention Program. See id., at 4. She also noted
that the charges arising from the allegation of kicking his son’s chair had been
dismissed. See id. She did not challenge any other aspect of the probation
officer’s recitation. Instead, she highlighted Gray’s issues with alcohol,
depression, possible brain injury, and his need for rehabilitation. See id., at
4-5.
The court summarized its findings:
Mr. Grey, you are a convicted violator for burglary involving the
same victim as I had you on probation for. You broke in and you
assaulted your pregnant baby’s momma. You continued
contacting her while you were in jail.
You are serving 11 ½ to 23 months [on the convictions for the
September 2016, crimes.] You have been convicted of aggravated
assault, simple assault, and have been active with the criminal
justice system since 1994. You’ve been on and off supervision
since 1994. And you have managed to violate all, if not – I’m
sorry, most if not all of your periods of probation.
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You had several prior incarcerations in the Allegheny County Jail.
You also served a term of four to eight years for involuntary
deviate sexual intercourse.
You have a lengthy history of avoiding treatment, although you
did periodically attend Pyramid and Family Links. However, you
seem to continue the same kind of actions.
…
Mr. [Grey], I find you really are not a candidate for county
supervision. We’ve done everything we can to try to rehabilitate
you since 1994. That’s a long time to be working with you.
Id., at 6-8. Grey has never challenged the court’s recitation of the
circumstances involved.
What Grey does challenge, however, is the whether the court considered
his rehabilitative needs and the fact that he has community support. Grey
concedes this raises a challenge to the discretionary aspects of his sentence.
See Appellant’s Brief, at 13.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). “Two requirements must be met before we
will review this challenge on its merits.” Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).
“Second, the appellant must show that there is a substantial question that the
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sentence imposed is not appropriate under the Sentencing Code.” Id. (citation
omitted). That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.” Id.
(citation and emphasis omitted). Here, Grey has preserved his arguments
through a post-sentence motion.
In his Rule 2119(f) statement, Grey contends the court abused its
discretion by imposing an excessive sentence and failing to consider his
“rehabilitative needs and that he had community support.” Appellant’s Brief,
at 15-16. This raises a substantial question. See Commonwealth v. Baker,
72 A.3d 652, 662 (Pa. Super. 2013).
We thus turn to the substance of Grey’s argument.
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.
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.
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Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)
(citation omitted).
“Upon revocation 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.A. § 9771(b). And the revocation court may impose a sentence of
total confinement upon revocation if “the defendant has been convicted of
another crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the
maximum sentence that it could have imposed originally at the time of the
probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.
Super. 2013) (citations omitted).
In addition, in all cases where the court resentences an offender
following revocation of probation … 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
[and] [f]ailure to comply with these provisions shall be grounds
for vacating the sentence or resentence and resentencing the
defendant. 42 Pa.C.S. § 9721(b). A trial court need not undertake
a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.
Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (internal
citations and quotation marks omitted).
When imposing sentence, a court must consider “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.”
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Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (citation
omitted).
Sentencing guidelines are not applicable to a sentence imposed after a
revocation of probation. See Commonwealth v. Cappellini, 690 A.2d 1220,
1224 (Pa. Super. 1997). Here, however, the court chose to follow them
anyway. And, in doing so, the court imposed a standard range sentence which
is presumptively reasonable. See, e.g., Commonwealth v. Fowler, 893
A.2d 758, 767 (Pa. Super. 2006).
Grey has failed to meet his burden of establishing the sentence imposed
was unreasonable. He conceded multiple technical violations of parole, as well
as breaking into the victim’s home and assaulting her while he was on
probation from previously trespassing on her property. Also, Grey has an
extensive criminal history. All of which weighs heavily in favor of protecting
the public, to say nothing of his victim, from Grey.
Additionally, the court had the benefit of a presentence investigation
report (“PSI”). Thus, the law presumes the court was aware of and weighed
relevant information regarding a defendant’s character along with mitigating
statutory factors. See Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa.
Super. 1992) (“It would be foolish, indeed, to take the position that if a court
is in possession of the facts, it will fail to apply them to the case at hand.”)
See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005)
(finding that where the sentencing court has a PSI, “it is presumed that the
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sentencing court was aware of the relevant information regarding defendant’s
character and weighed those considerations along with mitigating statutory
factors”).
The court acknowledged Grey’s rehabilitative needs. See N.T.,
Revocation Hearing, 8/24/17, at 6-7. However, the court concluded, “[w]e’ve
done everything we can to try to rehabilitate you since 1994. That’s a long
time to be working with you.” Id., at 7-8. The court considered Grey’s
rehabilitative needs; it merely found they were outweighed by the need to
protect the victim and the community from Grey’s recidivism.
We can discern no abuse of the court’s discretion in imposing sentence.
We therefore affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2018
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