Com. v. Huey, W. ( 2018 )

J-S68036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WESLEY LOTT HUEY :
:
Appellant : No. 674 WDA 2018
Appeal from the Judgment of Sentence April 6, 2018
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000400-2011
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 14, 2018
Appellant Wesley Lott Huey appeals from the judgment of sentence
entered in the Court of Common Pleas of Venango County on April 6, 2018,
following the revocation of his probation. We affirm.
Appellant does not dispute the trial court’s statement of the factual
background and procedural history and, in fact, he relies upon the same in his
appellate brief. See Brief for Appellant at 6-10 (citing Trial Court Opinion,
filed 7/98/18, at 1-4).
In his brief, Appellant presents the following Statement of Question
Involved:
Whether the lower court erred or abused its discretion by
sentencing [Appellant] on a pro[b]ation revocation where the
Commonwealth waited an unreasonable amount of time before
revoking [Appellant] for a 2015 Escape conviction?
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S68036-18
Brief for Appellant at 5.1
In his sole issue on appeal, Appellant argues that the trial court violated
Pa.R.Crim.P. 7082 by failing to hold a revocation hearing as speedily as
possible. Brief for Appellant at 18-20. Appellant contends that, because of the
delay, his sentence should be vacated and the matter should be remanded for
a new hearing and/or resentencing.
In an appeal from a sentence imposed after the trial court has revoked
probation, this Court may review “the validity of the revocation proceedings,
the legality of the sentence imposed following revocation, and any challenge
to the discretionary aspects of the sentence imposed.” Commonwealth v.
Wright, 116 A.3d 133, 136 (Pa.Super. 2015).
____________________________________________
1The Commonwealth did not file an appellate brief.
2Pa.R.Crim.P. 708, which pertains, inter alia, to a violation of probation,
provides, in relevant part:
(B) Whenever a defendant has been sentenced to probation or
intermediate punishment, or placed on parole, the judge shall not
revoke such probation, intermediate punishment, or parole as
allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the
defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a condition of
probation, intermediate punishment, or parole.
Pa.R.Crim.P. 708(B) (emphasis added).
-2-
J-S68036-18
We have reviewed the certified record, Appellant’s brief, the applicable
law, and the thorough opinion authored by the Honorable Robert L. Boyer of
the Court of Common Pleas of Venango County filed on July 9, 2018, We
conclude that Judge Boyer’s opinion accurately disposes of the issue Appellant
presents on appeal, and we discern no abuse of discretion or error of law.
Accordingly, we adopt Judge Boyer’s Opinion as our own and affirm the
judgment of sentence on that basis.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2018
-3-
Circulated 10/19/2018 10:26 AM
07/09/2018 MON 13: 12 FAX 814 432 9579 vc Prothonota.ry ��� PD �001/011
lN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANfA
COMMONWEALTH OF PENNSYLVANTA
v.
CR. No. 400-2011
WESLEY LOTT HOEY,
Defendant.
l�·-..1
-1• r::.: <',
I \.-,C..J
r
t
r-r·, . '·"..l
r-
.....
,., , .. ;t;
,...1_) i''.,; '':_�l.
r=
I ( • .,., ;
:_:1�· � ;.�!-;.'
OPINION OF COURT
�;:;•I \� :.·;•;;;"I/.. , ;r·.:1�
i,·
� t'.::)' !) • · '. '1(1•1
AND NOW, this � day of July, 2018, the Court has before it P�lilt�1:r�r's � � ��� ·,
1 .: 011 [. r
C/'I ;,, ,-.. •• -., (. �
• .I • ,· (""·
,
('
statement of errors complained of on appeal. Pursuant to Pa. R.A.P. 1925(u)(l), tbe-coMt Jss11�s'
.... i
the following opinion.
Factual Background and Procedural History
Petitioner in the above-captioned matter was sentenced on July 19, 2011 fol' a.11 unrelated
conviction, specifically Count Two-manufacture, deliver, or possess with intent to manufacture
a controlled substance, at criminal docket number 258-201 J, for violating 35 Pa. C.S.A. § 780-
l l 3(a)(3 ), an ungraded felony. This Court sentenced Petitioner to a split sentence, at which he
was to undergo a term of incarceration of nine to twenty-foul' months, immediately followed by a
three year pro bationary period, At cri111i11aI docket number 258-2011, Petitioner was paroled on
January 10, 2012, with a maximum expiration date of Apl'il 23, 2013. That term of incarceration
was to be followed by his three year probationary tail, which had a maximum date of April 23,
2016.
On September 8, 2011, Petitioner entered into a negotiated guilty plea in which he pied
guilty to Count One-theft by unlawful taking at the above-captioned criminal docket, in
Attachment A
07/09/2018 !995 A.2d 1259, 1262-63 (Pa. Super. Ct. 2010) (internal citations
omitted). In deciding whether or not the delay is reasonable, "the court examines three factors:
the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant
from the delay." Id. at 1263. 11The measure of delay extends from the defendant's date of
conviction or entry of a guilty plea on the new charges to the date the court holds the revocation
hearing." Id. (internal citations omitted). Moreover, the superior court "has previously held
delays of fifteen months, two years, and four years are not • Intrinsically reasonable.' 11 Id
In examining whether a delay is reasonable, a court should look at "the circumstances
surrounding the delay to determine whether the Commonwealth acted with due diligence in
scheduling the revocation hearing." Id (internal citations omitted). "[A] court should not
attribute to the Commonwealth delays caused by the defendant." Christmas, 99 5 A.2d at 1236
(internal citations omitted). Specifically, the superior court has held that, "where an appellant
successfully conceals the violation or evades arrest, then any consequent delay will be attributed
to the appellant, and certain delays incident to the scheduling of revocation hearings are
reasonable." Commonwealth v. Bischof, 616 A.2d 6, 8 (Pa. Super. Ct. 1992) (internal citations
omitted) (emphasis added).
As to the third prong of the analysis, "[t]o demonstrate a violation of his right to u speedy
probation revocation hearing, a defendant must allege and prove the delay In holding the
revocation hearing prejudiced him." Christmas, 995 A.2d at 1263 (internal citations omitted),
5
07/09/2018 MON 13! 12 FAX 814 432 9579 vc Prothonot!i.ry --- PD �006/011
The Christmas court further explained their definition of prejudice for use in the realm of
revocation proceedings:
Prejudice in this context has been interpreted as being something which would
detract from the probative value and reliability of the facts considered, vitiating
the reliability of the outcome itself. One specific purpose of ow· rule in requiring a
prompt revocation hearing is Lo avoid such prejudice by preventing the loss of
essential witnesses 01· evidence, the absence of which would contribute adversely
to the determination. Another is to prevent unnecessary restrain of personal
liberty. If a defendant is already incarcerated on the charges that triggered the
probation revocation, he cannot claim the delay in holding his revocation hearing
caused him any loss of personal liberty. Likewise, where a conviction on new
charges conclusively establishes the defendant's probation violation, the
defendant cannot claim n delay In his VOP hearing prejudiced him because
he lost favorable witnesses and evidence.
Id. (internal citations omitted) (emphasis added),
Here, the delay in bringing Petitioner's probation revocation spanned from his escape
conviction in Allegheny County on December 2, 2015, to the date of his revocation hearing at
docket number 400-2011, held on March 16, 2018, Therefore, Petitioner' s revocation
effectively took over two yea.rs to be heard. In analyzing the reason for the delay, we would aver
that Petitioner holds sole responsibility.
As noted by Pennsylvania case law, Petitioner is directly responsible for the delay in his
revocation proceedings because he successfully concealed his 2015 conviction in Allegheny
County from the Venango County District Attorney's Office until March of 2018. Therefore, we
opine that it was by no fault of the Commonwealth that his revocation hearing took so long to
occur. As Attorney Servidio credibly reported to this Court that her office was not aware of his
new conviction prior to March 13, 2018, we therefore find that Petitioner holds sole
responsibility for the delay in his revocation proceedings.
We would further argue that Petitioner has not carded his burden i11 alleging and proving
that, as a result of the time lapse between his new criminal conviction and his revocation hearing,
6
07/09/2018 KON 13: 13 FAX 814 432 9579 vc Prothonotary �4� PD �007/011
Petitioner was the subject of unfair prejudice caused by the delay. Firstly. during the time his
probation remained unrcvokcd, Petitioner was either in jail serving another sentence, or not in
the custody of the Commonwealth. Therefore, Petitioner cannot claim that he suffered any loss
of personal liberty because of the delay in his revocation proceedings, as he was never placed in
jail for any significant period of time awaiting his revocation hearing, Moreover, Petitioner also
cannot claim that that a delay in his revocation proceedings prejudiced him with regards to the
inability to produce witnesses and evidence tending to show that he did not materially violate his
probation, because a new criminal conviction, which Petitioner specifically stipulated to, has
been held to conclusively establish a probation violation. This Court is therefore of the opinion
that Petitioner has foiled to prove any actual prejudice he sustained as a result of the delay in his
revocation proceedings.
We therefore conclude that even though Petitioner waited more than two years for his
probation to he revoked for his 2015 conviction in Allegheny County, his successful
concealment of the conviction was the sole cause for tho delay, and he has also failed to offer or
prove any prejudice suffered as a result of the delay.
The Pennsylvania Supreme Court has provided an analysis of the contrasting sentencing
alternatives available to a trial court in proceedings following the revocation of a defendant's
probation, versus the revocation of his or her parole:
[A] court faced with a violation of probation may impose a new sentence so Jong
as it is within the sentencing alternatives available at the lime of the original
sentence. 42 Pa.C.S. § 977l(b) (''Upon revocation of 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."). In contrast, a court faced with a parole violation must
recommit the parolee to serve the remainder of the original sentence of
imprisonment, from which the prisoner could be reparoled.
7
07/09/2018 MON 13! 13 FAX 814 432 9579 vc P:i:othonota:i:y ��� PD ilJOOS/011
Commonwealth v. Holmes, 933 A.2d 57, 74, n. 5 (Pa. 2007), In this realm, we find that the
superior· court's analysis in Commonwealth v. Ware directs our analysis of the instant appeal. In
Ware, a Lancaster County trial court was tasked with determining whether a trial court's
imposition of a sentence that included the revocation of both the defendant's parole and
probation, was legal. 737 A.2d 251, 252 (Pa. Super, Ct. 1999). The defendant in Ware initially
entered into a guilty plea and received a split sentence of eight to twenty-three months
incarceration, with credit for time previously served, Id. This was to be followed by a
consecutive two-year probationary tail. Id Defendant was released from jai I approximately two
weeks after her sentencing. Id.
About six weeks later, the defendant in Ware committed a retail theft in another county
and received a term of imprisonment. Id When the district attorney i11 Lancaster County was
alerted to defendant' s subsequent foreign conviction, a probation and parole violation hearing
was held, at which the trial court ultimately revoked both the defendant's probation and her
parole, while imposing a new sentence of thirty-two-and-a-half to seventy-four-and-a-half
months' incarceration.. Id
In addressing the defendant's appeal of her sentencing, the superior court undertook the
following discussion:
[an] order revoking parole does not impose a new sentence; it requires appellant,
rather, to serve the balance of a valid sentence previously imposed. Moreover,
such a recommittal is just that- a recommittal and not a sentence. Further, at a
"Violation of Parole" hearing, the court is not free to give a new sentence. The
power of the court after a finding of violation of parole in cases not under the
control of the State Board of Parole is "to recommit to jail .... '' See
Commonwealth v. Fair, 497 A.2d 643, 645 (1985), citing 61 P.S. § 314. There is
no authority for giving a new sentence with a minimum and a maximum.
8
07/09/2018 MON 13: 13 FAX 814 432 9579 vc Prothonotary � ... � PD �009/011
Id. at 253 (internal citations omitted) (parallel citations omitted). However, the court in Ware
continued. explaining that the facts in that case involved not only a parole revocation) hut the
revocation of defendant's probation as well. In doing so, they stated as follows:
the court had the authority to revoke appellant's probation despite the fact that, at
the time of revocation of probation, appellant had not yet begun to serve the
probationary portion of her split sentence and even though the offense upon which
. the revocation of probation was based occurred during the parole period and not
the probationary period .. , The fact that appellant ha[s] not commenced serving
probation when the new offense occurred [does] not prevent the court from
revoking its prior order placing appellant 011 probation ... If at any time before
the defendant has completed the maximum period of probation, or before he has
begun service of his probation, he should commit offenses of such nature as to
demonstrate to the court that he is unworthy of probation and that the granting of
the same would not be in subservience to the ends of justice and the best interests
of the public, or the defendant, the court could revoke or change the order of
probation, A defendant on probation has no contract with the court. He is still a
person convicted of a crime, and the expressed intent of the court to have him
under· probation beginning at a future time does not "change his position from the
possession of a privilege to the enjoyment of a right." Burns v United States. 53
S. Ct. 154, 156 (l 932) ... Further, this court has previously agreed that a term of
probation: may and should be construed for revocation purposes as including the
term beginning at the time probation is granted, Otherwise, having been granted
probation a defendant could commit criminal acts with impunity- as fur as
revocation of pro bation is concerned - until he commenced actual service of the
probationary period.
Id. at 253-54. (internal citations omitted) (parallel citations omitted). 111 concluding the trial
court's revocation of both the defendant's probation and parole was legal, the superior court in
Ware stated, "it is clear that the [trial] court in the instant matter had the proper authority to
revoke not only [the defendant's] probation, but also to revoke the [defendant's] probation, Id. at
254. The court continued, "[rnlorcover, once the court revoked probation, it had the same
sentencing options available that existed at the time of the original sentencing." ld.
Consequently, because the defendant's probation and parole revocation sentences did not exceed
the statutory maximum penalty that the trial court could have imposed at the original sentencing,
the superior court therefore held the sentence was legal. Id.
9
07/09/2018 MON 13: 13 FAX 814 432 9579 vc Prothonotary --- PD ljzJOl0/011
Based upon Pe1111sylv0..11ia law, this Court opines that Petitioner's revocations> including
both his parole at 258-2011 and his probation at 400-2011, were legal based upon his 2015
conviction of escape in Allegheny County. As we found the escape conviction to be a material
violation of Petitioner's parole at docket number 258-2011, we were well-within our authority
as the original sentencing court to revoke his parole and recommit him to the custody of the
Department of Corrections to serve out the balance of his original sentence at that criminal
docket.
As evidenced by the case law cited immediately above, even though Petitioner had yet to
begin his term of probation at docket number 400-2011 when he was convicted of escape in
Allegheny County, we were still within our authority as the original sentencing court to revoke
his probation at that docket. Moreover, we correctly found that Petitioner's stipulated-to 2015
conviction was a material violation to the terms of his probation, and we therefore correctly
revoked his probation pending resentencing, At resentencing, we possessed the same sentencing
options as we did when we originally sentenced the Petitioner in 2011. Because we possessed all
of those options previously available, we correctly and legally resentenced Petitioner to a term of
six tu twelve months' incarceration.
As the combined terms of incarceration at both Petitioner's parole and probation
revocations do not accumulate to a sentence beyond the statutory maximums prescribed by law
for either offense, the sentences given to Petitioner were legal and therefore all appellate issues
raised by Petitioner are metitless.
10
07/09/2018 KON 13113 FAX 814 432 9579 vc Prothonotary ��� PD �011/011
Conclusion
For the aforementioned reasons, the Court respectfully requests the Superior Court dismiss
Petitioner's appeal in the above-captioned matter.
BY THE COURT,
Robert L. Boyer, J.
cc: Brenda Servidio, P.sq. (DA)
Jeri Bolton, Esq, (PD)
/LCW
11