Com. v. Stiscak, S. ( 2014 )

J-A23024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN N. STISCAK,
Appellant No. 1532 WDA 2013
Appeal from the Judgment of Sentence entered August 26, 2013,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0009389-2011
and CP-02-CR-0009226-2011
BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 08, 2014
sentence imposed after he violated the conditions of his probation. We
affirm.
The trial court summarized the pertinent facts as follows:
[Appellant] was charged at CC201109389 with Aggravated
Indecent Assault of a Child, Indecent Assault of a Child and
Corruption of Minors in relation to an incident with his next-door
-year-old daughter and at CC 201109226 with
Indecent Assault of a Child, Indecent Exposure and Corruption of
Mi -year-
old son. The Aggravated Indecent Assault Charge at CC
20119389 as well as one Indecent Assault and the Indecent
Exposure charges at CC 201109226 were withdrawn by the
Commonwealth as part of a plea agreement, and on February 6,
201[2], [Appellant] pled guilty to the remaining charges. He
was immediately sentenced to an agreed-upon term of
imprisonment of 17½ months of home confinement with GPS
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monitoring. No Post-Sentence Motions were filed and no direct
appeal was taken.
[On June 28, 2012, the trial court adjudicated Appellant a
(expired). Although Appellant was sentenced on February 6,
2012, before his SVP hearing, this Court in Commonwealth v.
Whanger, 30 A.3d 1212, 1214 (Pa. Super 2011) explained that
the requirement that an SVP hearing be held before sentencing
can be waived. See 42 Pa.C.S.A. § 9795.4(a)(expired); 42
Pa.C.S.A. § 9799.24. Here, at the February 6, 2012, sentencing
applicable to him and after Appellant affirmed that he had filled
on the record to immediately proceed to sentencing, effectively
waiving the requirement that an SVP hearing be conducted
before sentencing. N.T., 2/6/12, at 7.]
On August 26, 2013, [Appellant] appeared before [the trial
court] for a probation violation hearing following his unsuccessful
discharge from treatment [with the Mercy Behavioral Health
Clinic]. At the conclusion of the hearing, [the trial court]
imprisonment of [2½] to five (5) years. Timely Post-Sentence
Motions were filed and were denied on September 23, 2013.
This appeal followed.
Trial Court Opinion, 1/14/14, at 1-2.
On April 10, 2014, the Commonwealth filed with the trial court a
which detailed the special conditions
ld be precluded
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the certified record because it was never presented to the trial court. 1
____________________________________________
1
at
Appellant is to comply with while on probation, including a requirement that
and/or sex offender treatment program as approved and directed by the
ument is signed only by Appellant and
does not indicate who or what entity drafted it, or from where it originated.
ement the
mental health treatment) was never introduced in any proceeding before the
trial court and that the document was never referenced nor admitted by the
trial court as evidence. Accordingly, Appellant asserts that the document
was not a part of the record before the trial court, and should not be
considered by this Court as part of the certified record.
consider only material duly certified in the record transmitted to us by the
trial court. A party to an appeal cannot therefore file a supplemental record
containing documents which were not included in the record certified from
the trial court and were not part of the evidence considered by the trial court
Possessky v. Diem, 655 A.2d 1004, 1007, n.1 (Pa.
Super. 1995), citing Pa.R.A.P. 1921.
It appears from the record that Appellant is correct that the document
that Appellant attend counseling, was not admitted into evidence at the
probation revocation hearing. However, the document is referenced in the
written sentencing order dated February 6, 2012, in which the trial court
cond
(Footnote Continued Next Page)
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In his appellate brief, Appellant raises the following issues for our
review:
1. Did the [tria
Probation where 42 Pa.C.S. § 9771(b)[2] directs that proof of
Violation of specified conditions of Probation is necessary
before a [trial court] may revoke Probation, and where the
[trial court] did not make a determination that the alleged
violations were based on the conditions of Probation actually
imposed by the sentencing court?
2. Are VOP Sentences of consecutive two and a half (2½) to five
(5) years of total confinement excessive as an abuse of
discretion, where [the] record demonstrates [that the trial
court] asserted inconsistent reasons for judgment, ignored
mitigating factors, and placed undue emphasis upon improper
pre-probationary factors?
Appellant challenges the legality of his sentence and also raises a
discretionary challenge to the length of the sentence imposed following
-20. In his first issue,
Appellant argues that the revocation of his probation was erroneous because
_______________________
(Footnote Continued)
denied.
2
42 Pa.C.S. § 9771(b)
Revocation.--The court may revoke an order of probation upon
proof of the violation of specified conditions of the probation.
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.
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it was based on his failure to complete a counseling and treatment program.
Id. He asserts that the requirement that he attend a counseling and
treatment program was not imposed by the trial court at sentencing, but by
the Board of Probation and Parole as a condition of supervision. He claims
that at the sentencing hearing, and in the written sentencing order, the trial
court never imposed a requirement that Appellant attend a treatment and
counseling program. Rather, in reliance on Commonwealth v. Elliot, 50
A.3d 1284 (Pa. 2011), Appellant argues that the requirement that he attend
a counseling and treatment program was imposed by the Pennsylvania
Board of Probation and Parole as a condition of supervision. Appellant
maintains, therefore, that the trial court lacked authority to revoke his
probation based on his failure to attend counseling because the trial court
never ordered him to attend counseling. Appellant claims that he cannot be
penalized for failing to comply with a requirement that was not court-
ordered, and that the trial court lacked the legal authority to revoke his
probation and impose of a new judgment of sentence.
In Elliott, supra, on which Appellant relies, our Supreme Court
addressed whether a trial court has the legal authority to revoke probation
based on a violation of a condition set not by the trial court, but by the
Board of Probation and Parole. The Supreme Court noted that under the
Sentencing Code, the trial court is tasked with setting the terms and
conditions for probation within specified parameters. See Elliot, 50 A.3d at
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1288 citing 42 Pa.C.S. § 9754(a), (b) and (c). Our Supreme Court
any individual probation officers, [may] impose the terms [and conditions] of
Id. at 1291. The Supreme Court explained, however, that while
robation Board
Id. (clarifying that
Board and its agents cannot impose any condition of
supervision it wishes, carte blanche
- Id. Rather, the Board
ne to, elaborate on, or
Id. at 1291-
impose conditions of probation in a generalized manner, and the Board or its
agents may impose more specific conditions of supervision pertaining to that
probation, so long as those supervision conditions are in furtherance of the
Id.
This interpretation gives meaning to all of the [relevant] statutory
provisions ... and thus: (1) maintains the sentencing authority
solely with a trial court; (2) permits the Board and its agents to
evaluate probationers on a one-on-one basis to effectuate
supervision; (3) sustains the ability of the Board to impose
conditions of supervision; and (4) authorizes that a probationer
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with either a condition of probation or a condition of supervision.
Id ision that the
defendant not enter within 1,000 feet of areas where primary activity
defendant not have unsupervised contact with minors, and merely
-contact order; therefore trial court possessed
Here, Appellant argues that the requirement that he attend a
counseling and treatment program was a condition imposed not by the
sentencing court, but by the Probation Board, without authorization from the
trial court. Appellant argues that at the sentencing hearing on February 6,
2012, when the trial court imposed its original sentence, it did not mention
as part of its sentence that Appellant was required to receive counseling as a
condition of probation. Appellant maintains that unlike Elliot, supra,
where the Probation Board imposed a condition of supervision that was
derivative of th the condition
that he attend counseling and treatment was not derivative of any trial court
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Our review of the record reveals that on June 28, 2012, Appellant was
Law, 42 Pa.C.S.A. § 9791 et. seq (expired).3 Under that now-expired
ed by statute to attend counseling
sessions. See
required to attend at least monthly counseling sessions in a program
approved by the board and be financially responsible for all fees assessed
4
The current, amended version of
not incarcerated shall be required to attend at least monthly counseling
sessions in a program approved by the board and be financially responsible
states that Appellant was required to fulfill the registration requirements of
-
would include the aforementioned statutory requirement that Appellant
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3
2012, Appellant was subject to the registration requirements set forth in 42
Pa.C.S.A. § 9791 9795.4. That version of Megan's Law subsequently
expired and was recodified at 42 Pa.C.S.A. §§ 9799.10 9799.41 effective
December 20, 2012.
4
See also Commonwealth v. Maldonado, 838 A.2d 710 (Pa. 2003)
sessions at least monthly, and that he pay the fees assessed from such
sessions if he is able to do so. See
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attend counseling. See Elliot, 50 A.3d at 1292 a trial court may impose
conditions of probat Moreover, at the guilty
plea and sentencing hearing, the trial court asked Appellant if he understood
N.T., 2/6/12, at 7. Appellant additionally affirmed on the record that he had
Id. Thus, the record
sentencing order, Appellant was informed of his responsibilities under
included the requirement that he attend sex offender counseling. We
therefore disagree with Appellant that the requirement that he attend
Probation without the authority of the trial court. Rather, attendance at sex
trial court explicitly
attendant requirements as a condition of his probationary sentence.
Accordingly, the trial court possessed the legal authority to revoke
ry requirement
that he attend counseling.
Even if, as Appellant asserts, the requirement that he attend
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and not by the trial court, here, as in Elliot, such a condition that Appellant
counseling). Elliot makes clear that if a condition imposed by the Probation
with that condition. Thus, the trial court in this case had authority to revoke
counseling because the trial court
counseling was derivative.
Appellant next argues that the trial court abused its discretion in
sentence is not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v.
Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004).
Before we reach the merits of this [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; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
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consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Appellant has preserved his claim by filing a post-sentence motion and
timely notice of appeal. Appellant has additionally included in his brief a
concise statement pursuant to Pa.R.A.P. 2119(f). See
17- ailed to present
adequate reasons on the record for its sentence, in conformity with 42
Pa.C.S. § 9721, presents a substantial question for our review. See
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (claim that
the sentencing court did not consider the appropriate sentencing factors
delineated in 42 Pa.C.S. § 9721(b) raises a substantial question for our
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. See Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). Once probation has
been revoked, a sentence of total confinement may 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,
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(3) such a sentence is essential to vindicate the authority of
court.
42 Pa.C.S.A. § 9771(c). It is well settled that sentencing guidelines do not
apply to sentences imposed as a result of probation revocations. See
Commonwealth v. Ware, 737 A.2d 251, 255 (Pa. Super. 1999).
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. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012).
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
Cartrette, 83 A.3d at 1040-1041 (internal quotations
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. Crump, 995 A.2d 1280, 1282-1283 (Pa. Super. 2010).
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After his probation was revoked, Appellant received two consecutive
sentences of 2½ to 5 years of imprisonment. These sentences did not
exceed the statutory maximum, and therefore were not illegal. At the
probation revocation hearing, prior to the imposition of sentence, the trial
specifically that Appellant failed to comply with the treatment plan at Mercy
Behavioral Health, and that he had written sexually explicit messages to his
female therapist. N.T., 8/26/13, at 2-5, 7. The trial court then stated on
the record its reasons for its sentence as follows:
According to Mercy [Appellant has] been offending since he
was 12 years old, starting with exhibitionism, stalking,
voyeurism, and of course hands-on victims, both males and
females ...
e
estimating, victims of him exposing himself to....
We have been offering you help since you were 12 years
matter when you pled guilty, you still assaulted two children,
ve been diagnosed with pedophilia and
of open lewdness; 2001, indecent assault as a juvenile. Again,
you were adjudicated delinquent of open lewdness. You were
convicted of indecent exposure in 2001, open lewdness in 2005,
as well as the instant charges.
more than you have not been in therapy. And I don
your rehabilitation has any meaning for you whatsoever. You
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of re-offending is great. You are therefore a danger to the
community.
Id. at 9-11.
Based on the foregoing, we find no abuse of discretion by the trial
forth adequate reasons on the record for its sentence. Rather, the record
indicates that the trial court considered appropriate sentencing factors
noted that numerous past attempts to rehabilitate Appellant had not only
failed but led to a continuation of criminal conduct, and concluded that a
sentence of total confinement was warranted to vindicate the authority of
failed to provide adequate reasons on the record for its sentence. Appellant
has failed to establish that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality, prejudice, bias or ill will,
or arrived at a manifestly unreasonable decision. Simmons, supra.For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Application for Relief to Vacate Lower Court Order denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
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