Com. v. Flamer, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOHN EDWARD FLAMER,
Appellant No. 2650 EDA 2018
Appeal from the Judgment of Sentence Entered August 2, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006457-2013
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 16, 2019
Appellant, John Edward Flamer, appeals from the judgment of sentence
of an aggregate term of 1½ to 5 years’ imprisonment, imposed after the court
revoked his term of probation based on a new conviction in an unrelated case.
Appellant challenges the discretionary aspects of his sentence. After careful
review, we affirm.
The trial court provided the following summary of the procedural history
of this case in its Pa.R.A.P. 1925(a) opinion:
On July 8, 2013, [Appellant] was arrested by the Ridley
Township Police Department and charged with retail theft, 18
Pa.C.S. § 3929[,] and providing false identification to police, 18
Pa.C.S. § 4914, after stealing a GPX portable DVD player from a
Kmart store and then falsely identifying himself after being
arrested.
On December 16, 2013, [Appellant] entered into a
negotiated plea agreement and was sentenced to 8 to 23
months[’] incarceration followed by three years[’] probation on
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the retail theft charge and one-year [of] probation on the false
identification charge.
On April 29, 2014, [Appellant] was arrested in the state of
Delaware on charges of theft. He was convicted on January 26,
2015. The Adult Probation and Parole Services Department
charged him with a violation of Rule 3 of his probation, that he
comply with all municipal, county, state and federal laws, as well
as Rule 10A, that he pay his court costs and fines. It
recommended that he be found in violation of the terms of his
probation, that his probation be revoked, and that he receive a
new sentence of 18 to 60 months on the retail theft charge and 6
to 12 months[’] probation on the false identification charge.
On August 2, 2018, this court conducted a Gagnon II[1]
hearing, at which defense counsel asked that [Appellant] be
sentenced to county time. This court rejected that request,
expressing the belief that the state has more resources than the
county to help [Appellant] with treatment and placement. It
adopted the recommendations of the probation department and
sentenced [Appellant] accordingly.
On August 6, 2018, counsel filed a motion to reconsider
sentence, in which he argued that this court erred when it
departed from the sentencing guidelines without stating a basis.
On August 7, 2018, this court denied that motion without a
hearing.
Trial Court Opinion (“TCO”), 10/17/18, at 1-2 (unnecessary capitalization
omitted).
Appellant filed a timely notice of appeal on August 31, 2018, followed
by a timely, court-ordered Rule 1925(b) concise statement of errors
complained of on appeal. Appellant now presents the following issue for our
review:
The [c]ourt erred in that its sentence was unreasonable in that it
was four times the standard guidelines without articulating
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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adequate reasons for the departure. The trial court abused its
discretion when it imposed a sentence exceeding the aggravated
guidelines without explaining compelling reasons why the
particular offense was more severe than the normal crime of
[that] type.
Appellant’s Brief at 4.
Appellant’s allegations relate to the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We 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. 720; (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.[] § 9781(b).
Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and internal quotations omitted).
Here, the record reflects that Appellant filed a timely notice of appeal,
properly preserved his claim in his post-sentence motion, and included a Rule
2119(f) statement in his appellate brief in compliance with Pennsylvania Rules
of Appellate Procedure. Thus, we proceed to determine whether Appellant has
raised a substantial question to meet the fourth requirement of the four-part
test outlined above.
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As we explained in Moury:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only 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.
Id. at 170 (citations and internal quotations omitted).
Appellant maintains in his Rule 2119(f) statement that the trial court
“violated the express provisions of the Sentencing Code and imposed an
excessive sentence contrary to the fundamental norms which underlie the
sentencing process.” Appellant’s Brief at 6. More specifically, Appellant
contends that his revocation sentence is “grossly disproportionate to the
nature of the violation,” that the trial court failed to consider all relevant
sentencing criteria, and that the court accepted an unsupported sentencing
recommendation from the probation department. Id. at 7. Based on the
arguments presented in Appellant’s Rule 2119(f) statement, and the case law
on which he relies, we conclude that he has presented a substantial question
for our review. See Commonwealth v. Simmons, 56 A.3d 1280, 1286 (Pa.
Super. 2012); Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super.
2011); Commonwealth v. Parlante, 823 A.2d 927, 929-30 (Pa. Super.
2003).
Accordingly, we will review the merits of his claim, mindful of the
following standard of review:
Sentencing is a matter vested within the discretion of the trial
court and will not be disturbed absent a manifest abuse of
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discretion. An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous. It is also now accepted that in an appeal following the
revocation of probation, it is within our scope of review to consider
challenges to both the legality of the final sentence and the
discretionary aspects of an appellant’s sentence.
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)
(citations omitted). Moreover, when we consider an appeal from a sentence
imposed following the revocation of probation,
[o]ur review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. 42 Pa.C.S. § 9771(b). Also, upon
sentencing following a revocation of probation, the trial court is
limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence.
Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)
(internal citation omitted).
The reason for the trial court’s broad discretion in sentencing and the
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.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (internal
citation and quotation marks omitted). Our Supreme Court has recognized
that the sentencing court’s “institutional advantage” is, perhaps, even “more
pronounced in fashioning a sentence following the revocation of probation,
which is qualitatively different than an initial sentencing proceeding.”
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).
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At initial sentencing, all of the rules and procedures designed to
inform the court and to cabin its discretionary sentencing
authority properly are involved and play a crucial role. However,
it is a different matter when a defendant reappears before the
court for sentencing proceedings following a violation of the mercy
bestowed upon him in the form of a probationary sentence. For
example, in such a case, contrary to when an initial sentence is
imposed, the Sentencing Guidelines do not apply, and the
revocation court is not cabined by Section 9721(b)’s requirement
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 defendant.”
42 Pa.C.S. § 9721. See Commonwealth v. Reaves, … 923 A.2d
1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b)
(Sentencing Guidelines do not apply to sentences imposed as
result of revocation of probation)).
Id.
In response to Appellant’s assertion that his new sentence exceeds the
standard guidelines, the court emphasized that the standard sentencing
guidelines do not apply following a revocation of probation. TCO at 4. The
court further explained:
Even if the guidelines were to apply, this court sentenced
[Appellant] within them. Although the DVD player that
[Appellant] stole from … Kmart was worth only $95.39, the
offense was graded as a felony of the third degree because it was
“a third subsequent offense, regardless of the value of the
merchandise.” 18 Pa.C.S. § 3929(b)(1)(iv). His offense gravity
score under the guidelines matrix is 5. [Appellant] had a prior
record score of 5, so the standard range for the minimum
sentence pursuant to the matrix is 12 to 18 months.
At the recommendation of the office of Adult Probation and Parole
Services, this court imposed a minimum sentence of 18 months,
which is at the top of but, nevertheless, within the guidelines. The
sentence was not “beyond the top end of the aggravated range,”
or “four times the standard guidelines” as [Appellant] suggests.
Id. (unnecessary capitalization omitted).
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Moreover, the record reflects that the trial court did consider the
rehabilitative needs of Appellant prior to sentencing.
As stated on the record,[2] this [c]ourt sentenced [Appellant] to
state time because the state parole department has superior
resources to assist him once he has completed his minimum
sentence. [Appellant] has a history of psychosis, for which he has
been evaluated and treated. Those evaluations, however, also
indicate that he has shown some resistance to treatment. Once
he has finished his sentence, the State Parole Department will be
better equipped to assist him in his transfer back to the
community.
Id. at 4-5. The court also recognized that after given credit for time served,
Appellant will essentially be immediately eligible for parole. N.T. Sentencing
at 6-7.
Finally, Appellant argues that the court failed to explain its reasoning for
imposing a harsher sentence on Appellant post-revocation. See Brief at 8-9,
12. However, as the Pasture Court made clear:
[F]ollowing revocation, a sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or
specifically reference the statutes in question. Simply put, since
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. The
rationale for this is obvious. When sentencing is a consequence
of the revocation of probation, the trial judge is already fully
informed as to the facts and circumstances of both the crime and
the nature of the defendant….
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2 See N.T. Sentencing, 8/2/18, at 12 (“One of the reasons that I think that
[Appellant] should be on state parole is because they have more resources to
help him with his treatment and placement than the county does or even state
probation, and I think it’s probably the best placement for him.”).
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Pasture, 107 A.3d at 28. The Pasture Court further emphasized that “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.” Id.
Based on our review of the record, we are satisfied with the justification
provided for the sentence imposed on Appellant post-revocation, and we
discern no abuse of discretion by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/19
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