Com. v. Williams, Q. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
QUANTAY SIMONE WILLIAMS :
:
Appellant : No. 1707 EDA 2017
:
Appeal from the Judgment of Sentence April 21, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010030-2008
BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.
MEMORANDUM BY OTT, J.: FILED JUNE 05, 2018
Quantay Simone Williams appeals from the judgment of sentence
imposed on April 21, 2017, in the Court of Common Pleas of Philadelphia
County, following a violation of parole/probation (VOP) hearing. In this
appeal, Williams challenges the discretionary aspects of her revocation
sentence of one to three-and-one-half years’ imprisonment. Based upon the
following, we affirm.
The trial court has summarized the procedural history of this case as
follows:
On July 10, 2009, [Williams] pleaded guilty to risking a
catastrophe, 18 Pa.C.S. Section 3302(b) and reckless
endangerment, 18 Pa.C.S. Section 2705. She was sentenced to
11-1/2 to 23 months of imprisonment with immediate parole on
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
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the charge of risking a catastrophe and four years of probation for
reckless endangerment. The sentences were to run concurrently.
On February 22, 2011, May 16, 2014, and September 10, 2014,
this court found [Williams] in violation of probation. On each date,
probation was revoked and a new sentence was imposed.
On December 14, 2014, this court found [Williams] in violation of
probation and parole. [Williams] was sentenced to [one to] two
years of imprisonment to be followed by three years of probation
for risking a catastrophe. She was paroled on November 30,
2015.
On April 17, 2017, this [c]ourt found [Williams] in violation of
parole[/probation]. She was sentenced to one to three-and-one-
half years of imprisonment. This court determined that her
sentence for reckless endangerment had been completed.
VOP Court Opinion, 8/30/2017, at 1-2.
“[T]his Court’s scope of review in an appeal from a revocation
sentencing includes discretionary sentencing challenges.” Commonwealth
v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). Furthermore,
“[t]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Crump,
2010 PA Super 101, 995 A.2d 1280, 1282 (Pa.Super. 2010); 42
Pa.C.S. § 9781(b). Rather, an "[a]ppeal is permitted only after
this Court determines that there is a substantial question that the
sentence was not appropriate under the sentencing code."
Crump, supra at 1282. In determining whether a substantial
question exists, this Court does not examine the merits of the
sentencing claim. Commonwealth v. Tuladziecki, 513 Pa. 508,
522 A.2d 17 (Pa. 1987).
In addition, “issues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Commonwealth v. Kittrell,
2011 PA Super 60, 19 A.3d 532, 538 (Pa. Super. 2011).
Furthermore, a defendant is required to preserve the issue in a
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court-ordered Pa.R.A.P. 1925(b) concise statement and a
Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo, 2012
PA Super 183, 53 A.3d 66, 72 (Pa. Super. 2012).
Cartrette, at 1042.
Here, Williams properly preserved her challenge to the discretionary
aspects of the sentence by filing a timely appeal, raising the claim in a post
sentence motion for reconsideration, and including in her appellate brief a
statement pursuant to Pa.R.A.P. 2119(f), setting forth the reasons she relies
upon for allowance of appeal. Therefore, we consider whether Williams has
presented a substantial question that her sentence is inappropriate under the
Sentencing Code.
A substantial question exists when an appellant sets forth “a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009) (citation omitted). In her Section 2119(f)
statement, Williams challenges “the sheer disproportionality and
excessiveness of the lower court’s sentence for a technical violation of
probation.” Appellant’s Brief at 11. This claim raises a substantial question.
See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim
that a sentence is manifestly excessive such that it constitutes too severe a
punishment raises a substantial question.”) Furthermore, Williams contests
the trial court’s imposition of a sentence of total confinement. This claim also
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presents a substantial question. See Commonwealth v. Colon, 102 A.3d
1033, 1043 (Pa. Super. 2014) (“Appellant’s claim that the trial court
sentenced him to a term of total confinement based solely on a technical
violation raises a substantial question for our review.”). Therefore, we will
review Williams’ sentencing claim.
The following principles guide a court's review of a VOP sentence:
[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. The reason
for this broad discretion and deferential standard of appellate
review is that the sentencing court is in the best position to
measure various factors and determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it. Simply stated, the sentencing court
sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
****
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
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(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).
****
[A] trial court does not necessarily abuse its discretion in imposing
a seemingly harsher post-revocation sentence where the
defendant received a lenient sentence and then failed to adhere
to the conditions imposed on him. 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.
Commonwealth v. Pasture, 107 A.3d 21, 27-29 (Pa. 2014) (case citations
omitted). See also Commonwealth v. Derry, supra, 150 A.3d 987, 994-
995 (holding a VOP sentencing court must consider 42 Pa.C.S. § 9721(b)
factors, and must also consider factors set forth in 42 Pa.C.S. § 9771(c)).
Preliminarily, we agree with the Commonwealth that Williams has
waived any claim that the trial court abused its discretion in imposing a term
of total confinement because her counsel suggested to the court that a one to
three-and-one-half year sentence would be appropriate. See
Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006)
(finding that where counsel suggested county incarceration might be proper
and appellant himself claimed a jail term of 12 to 24 months would be more
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appropriate than 18 to 36 months, such comments “would appear to waive
appellant’s argument’s regarding total confinement”). At the opening of the
Violation of Probation Hearing, held on April 21, 2017, counsel for Williams
stated, unequivocally:
So, Your Honor, what I would be asking for because she, I have
had Ms. Williams for years as Your Honor knows. I would ask it
just be one to three years, no probationary tail, because she is
just not a candidate for probation. She is not committing any
offenses, but she is not compliant in any way, shape, or form with
probation. And I can’t argue that. So I would just ask for one to
three if Your Honor. [sic]
N.T. VOP Hearing, 4/21/2017, at 3-4. Unlike Malovich, where counsel merely
suggested incarceration would be proper, here, counsel asked the court to
impose a sentence of incarceration. Therefore, all issues currently raised by
Williams challenging the fact that a term of incarceration was imposed,
including the failure to obtain a pre-sentence report, are waived.
Although Williams has claimed her sentence was disproportionate and
excessive to her technical violations, her argument specifically addresses the
imposition of any term of total incarceration, as discussed above, and not a
specific claim that the term of incarceration was excessive. Nonetheless, as
such a claim might be construed as being fairly encompassed in a claim of
excessive sentencing, we will briefly comment thereon.
The VOP court, which was also the trial court and the court that heard
all previous VOP allegations, imposed a sentence of one to three-and-one-half
years’ incarceration. The minimum term of one year is identical to the
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sentence requested by Williams’ counsel. See N.T. VOP Hearing, supra.
Initially, we note the three-and-one-half year maximum term of incarceration
is six months longer that the term requested by Williams’ counsel. Id. There
is no apparent reason to determine the extra 180 days imposed on the
requested three years maximum sentence represents an abuse of discretion
that resulted in a manifestly excessive sentence. Moreover, the VOP judge
noted sufficient reasons for imposing the sentence.
In fashioning the sentence, this court considered that [Williams]
has not been convicted of a new crime since her initial guilty plea
and sentencing in 2009. This court considered defense counsel’s
recommended sentence of one to three years of imprisonment.
[Williams] was found in violation of probation five times since her
guilty plea. The docket entries show that she was given the
opportunity for mental health and drug treatment to address her
rehabilitative needs. Nevertheless, she has repeatedly failed to
fulfill the terms of her probation. [Williams] has shown contempt
of court by failing to appear for her hearings. The supervision,
counseling and treatment services made available to her have not
succeeded. Incarceration in required to protect [Williams] from
her own irresponsible behavior. Incarceration “is essential to
vindicate the authority of this court.” 42 Pa.C.S. Section 9771 (c).
VOP Court Opinion, 8/30/2017, at 5-6 (citation to record omitted).
It has been often repeated that:
[A] court may sentence a defendant to total confinement
subsequent to revocation of probation if any of the following
conditions exist:
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
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3. such a sentence is essential to vindicate the authority
of this court.
Commonwealth v. Crump, 995 A.2d 1280, 1282-83 (Pa. Super. 2010)
(emphasis added).
The VOP court had the authority to impose a sentence of total
incarceration; defense counsel requested a sentence of total incarceration
based upon Williams’ inability to conform the terms of her probation; the VOP
court, having been involved with Williams from the inception of the underlying
matter, was all too aware of Williams’ multiple failings regarding compliance
with the terms of her probation; the VOP court imposed a sentence that was
only six months longer than the sentence requested by defense counsel; and,
the VOP court imposed a sentence designed to both aid Williams in her
rehabilitation and to vindicate the authority of the court.
We find no abuse of discretion, and, therefore, Williams is not entitled
to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/18
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