Com. v. Mitchell, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRASHEED MITCHELL :
:
Appellant : No. 503 EDA 2017
Appeal from the Judgment of Sentence December 20, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010226-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRASHEED MITCHELL :
:
Appellant : No. 504 EDA 2017
Appeal from the Judgment of Sentence December 20, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011344-2011
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 01, 2018
Brasheed Mitchell (“Appellant”) appeals the judgments of sentence
imposed after the revocation of his probation.1 We affirm.
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1 Appellant’s appeal from the judgment of sentence imposed at CR-10226-
2011 is lodged at 503 EDA 2017, and his appeal from the judgment of
sentence at CR-11344-2011 is lodged at 504 EDA 2017. For reasons of judicial
economy, we address them both in this memorandum.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant was arrested on April 15, 2011, and charged with drug and
related offenses. He was arrested again on August 4, 2011, and charged with
drug and related offenses. On November 29, 2011, Appellant pled guilty to
violating 35 P.S. § 780-113(a)(30) at Montgomery County docket numbers
CR-10226-2011 and CR-11344-2011 (“2011 convictions”). The trial court
sentenced Appellant on the same day to probation for concurrent terms of
four years. Appellant did not appeal those sentences.
As a result of Appellant committing various technical violations while on
probation, he appeared for a violation of probation (“VOP”) hearing on
March 21, 2013. The trial court allowed Appellant to continue serving
probation on the 2011 convictions.
While Appellant was serving probation on the 2011 convictions, he
committed new crimes on February 9, 2015, in Lycoming County. Following
a jury trial, he was found guilty of multiple offenses on March 31, 2016, and
sentenced to incarceration for five to eleven years at CR-0000546-2015 (the
“Lycoming County sentence”).
On December 20, 2016, the trial court conducted by video a VOP hearing
on the 2011 convictions. Finding Appellant in violation, the trial court revoked
Appellant’s probation and sentenced him on the 2011 convictions to
incarceration for concurrent terms of five to ten years, to run consecutive to
the Lycoming County sentence. Appellant did not file a post-sentence motion,
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but he timely appealed the VOP sentences imposed on the 2011 convictions.2
Appellant and the trial court complied with Pa.R.A.P. 1925.
In each appeal, Appellant asks: “Did the [trial] court err in sentencing
[Appellant] without the benefit of a presentence investigation and mental
health report?” Appellant’s Briefs at 10 (full capitalization omitted).
The following principles guide our 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.
* * *
[We] review . . . to determin[e] 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.A. § 9771(b). Also, upon
____________________________________________
2 Each of Appellant’s notices of appeal contained one sentence: “NOTICE IS
HEREBY GIVEN that MITCHELL BRASHEED [sic], hereby appeals to the
Superior Court of Pennsylvania from the Order entered in this matter.”
Notices of Appeal (503 and 504 EDA 2017), 1/18/17. Consequently, this Court
issued a Rule to show cause why the appeals should not be quashed as there
was no indication on the notices of appeal as to the order being appealed.
Order, 11/13/17. Counsel for Appellant responded that failure to include the
order date was an “administrative oversight.” Response to Rule to Show
Cause, 11/15/17, at ¶ 4. Counsel also argued that the notice of appeal
substantially complied with Pa.R.A.P. 904(a), the order date was included in
the criminal docketing statement, and the trial court opinion referenced the
order. Id. at ¶¶ 6, 7. Upon review, we choose not to quash these appeals.
Counsel is directed to comply with Pa.R.A.P. 904 in the future.
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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. Simmons, 56 A.3d 1280, 1283-1284, 1286–1287 (Pa.
Super. 2012) (quoting Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa.
Super. 2011), and Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.
Super. 2006)). Our scope of review also includes discretionary sentencing
challenges. Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super.
2013) (en banc).
Appellant claims his sentence “was not fashioned to his individual
circumstance” because the sentencing court abused its discretion by failing to
order a pre-sentence investigation (“PSI”) report. Appellant’s Brief at 14. This
claim raises a challenge to the discretionary aspects of Appellant’s sentence.
Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa. Super. 2008).
However, such a challenge is not appealable as of right. Commonwealth v.
Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017). “Rather, where an
appellant challenges the discretionary aspects of a sentence, the appeal
should be considered a petition for allowance of appeal.” Commonwealth v.
Haynes , 125 A.3d 800, 806–807 (Pa. Super. 2015) (citation omitted).
We will exercise our discretion to consider such a petition only if: (1)
the appellant has filed a timely notice of appeal; (2) he has preserved the
sentencing issue at the time of sentencing or in a motion to reconsider and
modify his sentence; (3) he presents the issue in a properly framed statement
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in his brief under Pa.R.A.P. 2119(f), pursuant to Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987); and (4) in the words of Section 9781(b)
of the Sentencing Code, “it appears that there is a substantial question that
the sentence imposed is not appropriate under this chapter.” 42 Pa.C.S.
§ 9781(b); Haynes, 125 A.3d at 807.
Here, Appellant filed timely notices of appeal and included a Pa.R.A.P.
Rule 2119(f) statement in each of his briefs. Notices of Appeal, 2/13/17;
Appellant’s Briefs at 6. However, Appellant did not raise an objection to his
sentences at the VOP hearing, and he did not file post-sentence motions
pursuant to Pa.R.Crim.P. 780(E). Thus, we decline to exercise our discretion
to consider his petitions for allowance of appeal. See Commonwealth v.
Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (instructing that where an
appellant fails to preserve arguments raised in support of his discretionary
sentencing claims at sentencing or in a post-sentence motion, they are not
subject to appellate review).
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/18
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