Com. v. Harris, D. ( 2021 )

J-A19044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID HARRIS :
:
Appellant : No. 18 EDA 2021
Appeal from the Judgment of Sentence Entered November 25, 2020
In the Court of Common Pleas of Bucks County Criminal Division at No:
CP-09-CR-0006430-2015
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 15, 2021
Appellant, David Harris, appeals from the judgment of sentence of 18 to
60 months’ incarceration, which was imposed after the trial court found him
in violation of his probation. We affirm.
On January 28, 2016, Appellant entered into a guilty plea to Robbery of
a Motor Vehicle, Receiving Stolen Property, Theft by Unlawful Taking, and
Robbery by Force.1 On March 30, 2016, the trial court sentenced Appellant to
24 to 48 months’ incarceration plus 5 years of concurrent probation on the
Robbery of a Motor Vehicle count. Order, 3/3/16. Appellant received no
further penalty on the remaining charges. Id. On September 18, 2017,
Appellant was released on parole upon completion of outpatient treatment.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3702(a), 3925(a), 3921(a), and 3701(a)(1)(v), respectively.
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Order, 9/25/17. Appellant’s parole expired on September 4, 2019. Id.
Appellant continued to serve the remainder of the concurrent 5 years of
probation, which was set to expire on March 30, 2021. Order, 12/15/16.
On September 1, 2020, Appellant’s probation officer alerted the trial
court that Appellant incurred the following technical violations of probation:
moving without permission, failure to report, failure to comply with drug and
alcohol treatment, and possession marijuana. Letter, 9/1/20. Appellant’s
probation officer requested that the trial court issue a bench warrant for
Appellant’s arrest based on his failure to report. Id. On September 3, 2020,
the trial court issued a bench warrant for Appellant’s arrest based on
absconding from his probation. Order, 9/3/20. Appellant was arrested on
that bench warrant on September 14, 2020. Order, 11/25/20.
On November 25, 2020, the trial court held a violation of probation
hearing. Agent Spall, Appellant’s State parole officer, testified at the hearing.
Agent Spall was temporarily assigned to Appellant’s case in July [2020]. N.T.
11/24/20, at 3. Agent Spall testified,
On July 17th [Appellant] did enroll at the detox in Valley Forge
and was successfully discharged on July 28th.
On July 29th [Appellant] contacted me to inform me that he had
been discharged, that he was instructed to enroll in outpatient
treatment.
Id. at 4-5. Agent Spall testified that on August 4, 2020, he “attempted to see
[Appellant] at his home” and “conducted a walk-through of the home to verify
that [Appellant] was not present at the home.” Id. at 5-6. Agent Spall
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testified he “then proceeded to Serenity Safe Haven outpatient clinic where
[Appellant] was to have been enrolled in treatment.” Id. Agent Spall testified,
[t]hey did report that he had enrolled since his detox. On August
19th, I did contact Serenity Safe Haven again to follow up on the
progress of his treatment, and they reported that he missed his
August 4th appointment, and has not been to the clinic since.
The clinic standard is twice weekly.
On August 31st, I spoke with the director of Serenity Safe Haven
who reported they were in the process of trying to get [Appellant]
to come into the clinic to the [sic] send him to another inpatient
treatment facility, that he continues to reside in an unknown
residence in Kensington, and that they would call me if they had
any contact with the treatment center. And I did not receive any
contact from them stating that he had at any subsequent date
contacted the center.
As of September 1st, [Appellant] had not contacted me at all in
August in order to schedule his August appointment. He was
required to be seen every month.
He had not complied with treatment recommendation.
He had not provided me with an address or phone number for
which he could be contacted at.
...
And we requested this Court issue a warrant for [Appellant’s]
arrest, and he was subsequently arrested on September 14th in
response to that.
Id. at 10-12.
Appellant testified that he made a mistake, would participate in
outpatient treatment, and that he has a problem with drug use. Id. at 28-29.
The trial court found Appellant in violation of his probation. Order, 11/25/20.
The trial court revoked Appellant's probation and resentenced him to 18 to 60
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months’ incarceration. Order, 11/25/20. Additionally, the trial court ordered
that Appellant be supervised by the mental health unit, participate in drug,
alcohol, and mental health treatment, and receive credit for time served from
September 14, 2020. Id.
On December 2, 2020, Appellant filed a timely motion to reconsider his
sentence. Motion, 12/2/20. Appellant argued that his sentence is unduly
harsh in view of the nature of the violations, his poor physical health,
substance abuse disorder and mental health diagnosis. Id. Appellant argued
that his sentence is manifestly excessive in light of the nature of the
underlying violations and the lengthy period of supervision imposed. Id.
Appellant also argued that the trial court failed to consider the factors in 42
Pa.C.S. § 9721(b) and 42 Pa.C.S. § 9771(c). Id.
The trial court did not rule on the motion to reconsider before Appellant
filed a timely notice of appeal.2 On December 23, 2020, Appellant filed
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2 Appellant’s motion to reconsider did not toll the thirty-day period to file an
appeal from the sentence imposed following revocation. See Pa.R.Crim.P.
708(e). The trial court stated in its 1925(a) opinion that Appellant’s post-
sentence motion will be denied by operation of law on March 25, 2021,
however, there appears to be no order stating such on the certified docket.
Trial Court Opinion, at 5. See Pa.R.Crim.P. 720(B)(3)(a) (post-sentence
motion not decided by trial judge within 120 days is deemed denied by
operation of law). We request the trial court enter the order denying
Appellant’s post sentence motion by operation of law on the docket. See
Pa.R.Crim.P. 720(B)(3)(c) (when a post sentence motion is denied by
operation of law, the clerk of courts shall forthwith enter an order on behalf
of the court. . . that the post-sentence motion is deemed denied). This does
not hinder our consideration of this appeal.
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this timely direct appeal.3 Appellant presents the following issues for our
review:
1. Is the sentence imposed for a technical violation of
probation unduly harsh and excessive, and greater than that
necessary to vindicate the Court’s authority under the
circumstances where:
• confinement in a state correctional facility for the term
imposed is not the least restrictive sentence
necessary to effectuate the aims of Pennsylvania’s
sentencing laws and is greater than that which would
be consistent with protection of the public, the gravity
of defendant’s conduct as it relates to the impact on
the life of others in the community, and the
rehabilitative needs of the defendant;
• and where the lower court did not adequately consider
defendant’s age, rehabilitative needs, his acceptance
of responsibility for his crime and violation, his
progress toward rehabilitation and the supportive
environment available to defendant?
2. Are Pa.R.Crim.P. 708 and 42 Pa.C.S. [Section] 5505
fundamentally unfair, inefficient and in direct conflict with
Pa.R.Crim.P. 602?
Appellant’s Brief, at 5 (suggested answers omitted).
We must first address if Appellant preserved the entirety of his first issue
for appeal under Pa.R.A.P. 1925(b). Appellant filed a Pa.R.A.P. 1925(b)
statement with the trial court, in relevant part stating, “[t]he trial court abused
its discretion by imposing an unduly harsh and excessive sentence for a
technical violation of probation.” Rule 1925(b) statement, at 1 (unpaginated).
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3Appellant timely filed his statement of errors complained of on appeal on
February 3, 2021. The trial court entered its opinion on March 23, 2021.
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The trial court, thereafter, filed its opinion addressing that issue. The
Commonwealth objected in its brief to Appellant’s inclusion of two additional
issues in this appeal, that the sentence was inconsistent with the Section
9721(b) factors and not required to vindicate the trial court’s authority. See
Commonwealth Brief, at 10.
Appellant has only included one section in the argument section of his
brief with regard to the discretionary aspects of his sentence. See Pa.R.A.P.
2119. We decline to find waiver. We find that Appellant raised the arguments,
that the sentence was not essential to vindicate the authority of the court and
that the sentence is not consistent with the Section 9721(b) factors, in support
of his excessive sentence argument and not distinct from it. Appellant has
raised only one issue for our review with regard to his judgment of sentence,
whether the sentence is excessive based on the technical nature of the
violations.
Appellant's issue relates to his judgment of sentence and implicates the
discretionary aspects of his sentence. A defendant does not have an
automatic right to appeal the discretionary aspects of a sentence and instead
must petition this Court for allowance of appeal, which “may be granted at the
discretion of the appellate court where it appears that there is a substantial
question that the sentence imposed is not appropriate under” the Sentencing
Code. 42 Pa.C.S. § 9781(b); see also Commonwealth v. Luketic, 162 A.3d
1149, 1160 (Pa. Super. 2017).
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Prior to reaching the merits of a discretionary sentencing issue, we must
engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his [] issue; (3) whether Appellant's brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence [pursuant to
Pa.R.A.P. 2119(f), Pa.R.A.P. 2119(f)]; and (4) whether the
concise statement raises a substantial question that the sentence
is [not] appropriate under the [S]entencing [C]ode.
Commonwealth v. Lekka, 210 A.3d 343, 349 (Pa. Super. 2019) (citation
omitted) (brackets in original).
Appellant satisfied the first three requirements; he filed a timely notice
of appeal, preserved his issue in a timely post-sentence motion, and included
a Pa.R.A.P. 2119(f) statement in his brief. Appellant’s Brief, at 11. Next,
we turn to whether Appellant’s Rule 2119(f) statement raised a substantial
question.
Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on
a case-by-case basis. . . . We have found that a substantial
question exists “when the appellant advances a colorable
argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.”
Commonwealth v. Radecki, 180 A.3d 441, 467-68 (Pa. Super. 2018)
(citations omitted) (brackets in original).
Appellant asserts in his Pa.R.A.P. 2119(f) statement that his sentence
of total confinement is unduly harsh, excessive and unreasonable under the
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circumstances, particularly in light of the technical nature of the violations of
his probation. Appellant’s Brief, at 22. This raises a substantial question.
See Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)
(argument that trial court abused its discretion in imposing a sentence of total
confinement after the revocation of probation for a technical violation raises a
substantial question); Commonwealth v. Malovich, 903 A.2d 1247, 1253
(Pa. Super. 2006) (argument that trial court’s sentence was excessive and
disproportionate to the underlying technical violations presented a substantial
question).
Accordingly, we address the merits of Appellant’s issue. We are mindful
of the following standard and scope of review.
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.
Commonwealth v. Starr, 234 A.3d 755, 760–61, (Pa. Super. 2020), appeal
denied, 243 A.3d 724 (Pa. 2020) (citing Commonwealth v. Simmons, 56
A.3d 1280, 1283-84 (Pa. Super. 2012)). With regard to a judgment of
sentence upon revocation of probation, we are guided by the following settled
law.
Upon revoking probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original
sentencing, including incarceration. “[U]pon revocation [of
probation] . . . the trial court is limited only by the maximum
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sentence that it could have imposed originally at the time of the
probationary sentence.”
Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (internal
citations omitted and brackets in original).
However, a VOP sentencing court’s discretion is not unfettered. A VOP
sentencing court must issue a sentence 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.” (Hereinafter, 9721(b) factors) 42 Pa.C.S. § 9721(b);
Commonwealth v. Derry, 150 A.3d 987, 994 (Pa. Super. 2016).
Additionally, the VOP sentencing court is guided by 42 Pa.C.S. § 9771(c),
which provides that once probation has been revoked, a sentence of total
confinement may only be imposed 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
(3) such a sentence is essential to vindicate the authority of the
court.
(Hereinafter, 9771(c) factors) 42 Pa.C.S. § 9771(c); Derry, 150 A.3d at 994.
Importantly, “in all cases where the court resentences an offender
following revocation of probation . . . the court shall make as 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[.]” Colon, 102 A.3d at 1044
(quotation marks and citations omitted); Pa.C.S. § 9721(b). However, “since
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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.” Commonwealth v. Presley, 193 A.3d 436,
446 (Pa. Super. 2018) (citations omitted). “[T]he record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Colon, 102 A.3d at 1044 (citation omitted).
Appellant argues that his sentence of total confinement for technical
violations of his probation, including one month failure to report and failure to
follow up with treatment for less than a month, is unduly harsh, excessive,
and unreasonable. Appellant’s Brief at 33. Appellant argues that he “initiated
contact with his probation officer after a relatively brief lapse in reporting and
admitted that he was struggling with drug addiction.” Id. He argues that the
sentence was not necessary to vindicate the authority of the court nor
consistent with the Section 9721(b) factors. Id. at 33-34.
In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing court’s
discretion, as he or she is in the best position to measure the
factors such as the nature of the crime, the defendant’s character,
and the defendant’s display of remorse, defiance, or indifference.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).
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.
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Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014).
In its 1925(a) opinion, the trial court stated,
Appellant’s initial sentence was below the mitigated sentence. For
robbery of a motor vehicle, the crimes for which he was
sentenced, Appellant’s sentencing guidelines were 36 months in
the mitigated range, 48 to 60 months in the standard range, and
72 months in the aggravated range. . . . Appellant was not
sentenced on every count, nor did his sentence come close to
exceeding the combined standard range of all his crimes.
TCO, at 3.
During Appellant’s violation of probation hearing, the trial court stated:
[Y]ou were given a state sentence the first time because of,
in part, the guidelines; in part because of your criminal
history; and in part because of the facts of the case; in part
because of the need to protect the community. But the
sentence was undoubtedly below the mitigated range
because of your need for rehabilitation.
...
What troubles me is you got out of jail, and you called your
probation officer the day you were released or the day after
you were released from a program, and then you went – to
put it bluntly – off the grid for a month. You were nowhere
to be found. He didn’t have any contact with you. You didn’t
contact him. Whether you moved or you didn’t move, you
know, which is in some dispute, I think it’s pretty clear you
weren’t where you were supposed to be or where you told
him you’d be. And so, I look at the whole case, and what it
suggests to me is that you’re a person who is still in need of
treatment, that the treatment that you will require is long-
term drug and alcohol and mental health treatment, and
that you were given the benefit of your condition last time
you were in court, and you haven’t taken advantage of it.
And that’s my perception. I know you and Mr. Criste will
disagree with that. I don’t think I have much of a choice in
order to vindicate the authority of the Court, I think a
sentence of total confinement is required for those reasons.
While they’re technical violations, your conduct is
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nevertheless serious and quite concerning given the history
that has been presented to me and that I’m familiar with.
...
You got two to four last time. The 18 months brings him up
to the mitigated range under the guidelines as has been
requested. I don’t think a three-and-a-half or a two-and-a-
half-to-five or a three-and-a-half-to-seven serves any
purpose other than to punish him. He still needs treatment.
We all know that those programs take some time.
N.T., 11/24/20, at 29-32.
Appellant’s argument that the trial court sentenced him to an excessive
sentence based on technical violations of his probation is without merit. The
trial court heard and considered testimony from Appellant’s probation officer
regarding Appellant’s specific violations of his probation, and heard testimony
from Appellant. See N.T. 11/24/20, generally. The trial court adequately
explained its reasons for the sentence imposed. N.T. 11/24/20, at 30-31;
See Pasture, 107 A.3d at 28.
Importantly, the trial court is the same court that originally sentenced
Appellant. See Pasture, 107 A.3d at 28; Presley, 193 A.3d at 446–47. The
trial court explained that it originally sentenced Appellant to a sentence that
was below the mitigated sentencing guidelines “because of [Appellant’s] need
for rehabilitation.” N.T. 11/24/20, at 29. Despite this, Appellant failed to
adhere to the conditions imposed upon him. The trial court emphasized, “you
were given the benefit of your condition last time you were in court, and you
haven’t taken advantage of it.” N.T. 11/24/20, at 31.
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The trial court adequately considered the Section 9721(b) factors,
stating that Appellant’s conduct is “serious and quite concerning.” N.T.,
11/24/20, at 31. The trial court was familiar with Appellant’s history, as it
was the same court that originally sentence Appellant, and whose probation
Appellant violated. N.T., 11/24/20, at 31. The trial court also complied with
9771(c), in finding the sentence was necessary to vindicate the authority of
the court. N.T., 11/24/20, at 31; See Malovich, 903 A.2d at 1254.
Lastly, the trial court sentenced Appellant well within the statutory
maximum for Robbery of a Motor Vehicle, a felony of the first degree, which
is 20 years' incarceration. Appellant initially received a sentence of 2 to 4
years’ incarceration and was resentenced to 1.5 to 5 years’ incarceration;
together, it is well under the statutory maximum. See Mouzon, 828 A.2d at
1128. For all the above reasons, we find the trial court did not abuse its
discretion in fashioning Appellant’s sentence. Where “the record as a whole
reflects that the trial court considered the facts of the crime and character of
Appellant in making its determination, we cannot re-weigh the sentencing
factors to achieve a different result.” See Crump, 995 A.2d 1280.
In Appellant’s second issue on appeal, he argues Pa.R.Crim.P. 708 and
42 Pa.C.S. § 5505 are fundamentally unfair, inefficient and in direct conflict
with Pa.R.Crim.P. 602. Appellant’s Brief (Statement of Questions Presented),
at 5. Rule of Criminal Procedure 708(e) states that a motion to modify a VOP
sentence will not toll the 30-day notice of appeal requirement. Pa.R.Crim.P.
708(e). 42 Pa.C.S. § 5505 states,
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[e]xcept as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or
allowed
42 Pa.C.S. § 5505. Pa.R.Crim.P. 602 states, “The defendant shall be present
at every stage of the trial including the impaneling of the jury and the return
of the verdict, and at the imposition of sentence, except as otherwise provided
by this rule.” Pa.R.Crim.P. 602.
First, we agree with the Commonwealth that this issue is waived for
failure to present the issue to the trial court. See Pa.R.A.P. 302 (“issues not
raised in the trial court are waived and cannot be raised for the first time on
appeal.”). Appellant did not raise this issue with the trial court, therefore, the
issue is waived. Even if not waived, this issue is without merit.
Appellant argues that the trial court scheduled a hearing for his motion
to reconsider the sentence for December 23, 2020, but that hearing was
cancelled because Appellant was moved to a different prison. Appellant's
Brief, at 37. Appellant argues he was forced to file a notice of appeal, based
on Rule 708, on December 23, 2020 and the trial court was divested of
jurisdiction to hear argument on his post-sentence motion. Id. at 38.
Appellant argues that Rule 708 forced Appellant to “choose between giving up
his statutory right to appeal or giv[e] up his statutory right to be present at
sentencing.” Id. At 39.
Appellant conflates a sentencing hearing with a hearing the trial court
scheduled regarding a motion for reconsideration of his sentence. A hearing
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scheduled regarding argument on Appellant’s motion to reconsider his
sentence is not a sentencing hearing. Appellant’s argument that his
constitutional right to be present was violated is without merit. Appellant was
present at the November 24, 2020 hearing when the trial court sentenced
him. See N.T., 11/24/20, generally. Appellant’s second issue is without
merit.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2021
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