Com. v. McCarter, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SEAN M. MCCARTER :
:
Appellant : No. 2404 EDA 2019
Appeal from the Judgment of Sentence Entered July 22, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001365-2017
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 06, 2020
Sean M. McCarter appeals from the judgment of sentence entered after
the revocation of his parole. He argues that the trial court erred by considering
pending charges in Maryland when revoking his parole and by continuing his
Gagnon II1 hearing sua sponte. We affirm.
This case originally stems from a 2017 simple assault case. In November
2017, McCarter pled guilty to simple assault and the trial court sentenced him
to 17 days to 23 months in prison. The trial court credited McCarter with time
served and granted him immediate parole. Thereafter, in March 2019,
McCarter was arrested for violation of his parole due to new criminal charges
in Maryland and alleged technical violations. The Maryland charges included
operating a motor vehicle without a valid driver’s license, knowingly
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1 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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possessing/transporting an illegal firearm with a loaded magazine, and
possession of a controlled substance. The technical violations alleged by the
Commonwealth included failing to report to adult probation office, changing
address without permission, consuming alcoholic beverages, not paying
required fines and costs, and failing to pay restitution.
Following a Gagnon I hearing, the revocation court scheduled a
Gagnon II hearing for May 10, 2019. However, on that date, the court
granted McCarter’s request to continue the hearing until the disposition of his
Maryland charges. However, less than a month later, in a letter dated June 5,
2019, McCarter changed course and asked the revocation court to proceed
with his Gagnon II hearing. Thus, the court commenced a Gagnon II
hearing on July 17, 2019, at which time defense counsel informed the court
that Maryland authorities had refused to take McCarter back to Maryland due
to his outstanding Pennsylvania detainer. Therefore, McCarter requested that
his hearing proceed even though his Maryland charges were unresolved.
However, McCarter contended that the court should not consider the pending
Maryland matter because he had not yet been convicted and he intended to
vigorously oppose the charges.
The court noted that McCarter had not filed a formal motion to modify
the May 10, 2019 order continuing the case until the resolution of the Maryland
charges. As such, the revocation court continued the hearing for an additional
five days, until July 22, 2019, to provide the Commonwealth with the
opportunity to produce documentation regarding McCarter’s Maryland
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charges. At the continued Gagnon II hearing on July 22, 2019, the revocation
court admitted a Maryland affidavit of probable cause and a police report for
McCarter’s Maryland charges (“statement of charges”), without objection.
McCarter’s parole officer then gave a statement to the court about McCarter’s
technical violations, also without objection.
The court entered an order and judgment of sentence finding McCarter
in violation of his parole, revoking his parole, and requiring him to serve the
balance of his sentence, 22 months and 13 days in prison. McCarter filed the
instant timely appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The
trial court responded with a Pa.R.A.P. 1925(a) opinion on October 7, 2019.
McCarter raises the following issues for review:
1. Whether the trial court erred by imposing an illegal
sentence for violation of parole, based upon an
insufficient record, which consisted of unproven out-of-
state conduct for pending charges that had not resulted
in conviction, and no specific findings as to any technical
violations.
2. Whether the trial court erred by continuing, sua sponte,
the violation proceedings on July 17, 2019 so that the
Commonwealth could obtain a statement of [McCarter’s]
pending Maryland charges, after the proceedings had
previously been continued pending determination of the
out-of-state charges, and when there was no [sic]
McCarter’s Br. at 5.
In his first issue, McCarter argues that the revocation court erred by
finding him in violation of his parole. Primarily, McCarter argues that the court
erred by concluding that he violated the conditions of his parole by his alleged
conduct that formed the basis of his Maryland charges. McCarter points to our
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Supreme Court’s decision in Commonwealth v. Infante, 888 A.2d 783 (Pa.
2005), abrogated on other grounds by Commonwealth v. Foster, 214 A.3d
1240 (Pa. 2019), as instructive. McCarter avers that in Infante our Supreme
Court indicated that the preferred course of action in similar circumstances is
for the revocation court to postpone the review of pending charges to avoid
the possibility of unjust revocation. McCarter also contends that the revocation
court erred by finding him in technical violation of his parole because the court
failed to make any specific findings regarding his alleged violations. He argues
in the alternative that the “evidence was not properly taken as to either the
out-of-state conduct or the technical violations.” McCarter’s Br. at 13
(emphasis in original).
When reviewing a revocation court’s decision to revoke parole, appellate
courts must determine whether the court erred as a matter of law.
Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa.Super. 1993). In
addition, we are mindful of the following well settled legal precepts regarding
parole revocations:
In order to support a revocation of parole, the
Commonwealth need only show, by a preponderance of the
evidence, that a parolee violated his parole. . . . [T]he
primary purpose of a parole revocation hearing is not to
determine whether the parolee has, in fact, been convicted
of a crime, rather its purpose is to determine
whether…parole remains a viable means of rehabilitation
and deterring future antisocial conduct. Further, violations
of failing to report and not residing at a given address could,
alone, be cause for parole revocation. A “technical violation”
of parole results from a violation of parole conditions.
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Id. (citations and internal quotations omitted). See Pa.R.Crim.P. 708(B)(2)
(a court shall not revoke parole unless there has been “a finding of record that
the defendant violated a condition of…parole”).
“Unlike a probation revocation, a parole revocation does not involve the
imposition of a new sentence.” Commonwealth v. Kalichak, 943 A.2d 285,
290 (Pa.Super. 2008) (citation omitted). Thus, “[f]ollowing parole revocation
and recommitment, the proper issue on appeal is whether the revocation court
erred, as a matter of law, in deciding to revoke parole and, therefore, to
recommit the defendant to confinement.” Id. at 291. For this reason,
McCarter’s phrasing of his first issue in terms of an “illegal” sentence is inapt.
Moreover, contrary to McCarter’s assertions, the revocation court did
specifically find McCarter committed technical violations of the conditions of
his parole. See Tr. Ct. Op., 10/7/19, at 5 n.9. The court found that McCarter
failed to report to the probation department on multiple occasions and
moved/changed his address without permission and without informing the
court. Id. These violations were sufficient to constitute technical violations of
the conditions of McCarter’s parole. See Mitchell, 632 A.2d at 936. To the
extent McCarter claims the evidence was insufficient to establish technical
violations, or that the court improperly admitted evidence of those violations,
the trial court heard the parole officer’s statement about McCarter’s technical
violations, and McCarter did not object. See Pa.R.A.P. 302(a). Thus, the
revocation court was well within its purview in revoking McCarter’s parole.
See Mitchell, 632 A.2d at 936.
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Further, McCarter invokes Infante to argue that the revocation court
erred by considering his pending Maryland charges. In Infante, the
Pennsylvania Supreme Court concluded, in the context of a probation
revocation hearing, that a trial court could defer consideration of pending
charges until their resolution and impose a new sentence based upon only
technical probation violations. Infante, 888 A.2d at 793-94. In the event the
pending charges were proven, the Infante Court concluded that the violation
of probation court could adjust the sentence. Id.
However, Infante is inapposite because that case concerned the
fashioning of a new sentence in the context of a violation of probation. Here,
McCarter did not face the imposition of a new sentence but instead only the
reinstatement of his previously imposed sentence, if the court should revoke
his parole. See Kalichak, 943 A.2d at 290-91. Hence, because McCarter’s
parole could properly be revoked based upon technical violations alone, as
discussed above, the reinstatement of his previously imposed sentence was
the correct course regardless of the ultimate outcome of his Maryland
charges.2 See id. Hence, McCarter’s first issue on appeal must fail.
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2 Although McCarter himself requested that his Gagnon II hearing proceed
even though his pending Maryland charges had not yet been resolved, he
instantly contends that the court erroneously considered the Maryland
statement of charges. To the extent that McCarter challenges the trial court’s
admission of the statement of charges into evidence, that issue is waived due
to his failure to object to the admission during his Gagnon II hearing. See
Pa.R.A.P. 302(a) (issues not raised in the trial court are waived for purposes
of appellate review).
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In his second issue, McCarter presents a brief, thinly developed
argument concerning the revocation court’s continuance of the July 17, 2019
hearing for five days, until July 22, 2019. McCarter asserts that the court’s
sua sponte continuance was “arbitrary, unwarranted, and an abuse of
discretion.” McCarter’s Br. at 14. While McCarter does not provide any specific
reasoning, he seems to imply that had the court not continued the hearing to
allow the Commonwealth to provide the Maryland statement of charges, then
the revocation court could not have properly found McCarter in violation of his
parole. We disagree.
First, because McCarter failed to object to the revocation court’s
continuing of the hearing, the issue is waived. See Pa.R.A.P. 302(a);
Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014) (stating that
“the failure to make a timely and specific objection before the trial court at
the appropriate stage of the proceedings will result in waiver of the issue.”
(citation omitted)).
Moreover, even if not waived, McCarter’s continuance claim is meritless.
Pursuant to Pennsylvania Rule of Criminal Procedure 106(A), “[t]he court or
issuing authority may, in the interests of justice, grant a continuance, on its
own motion, or on the motion of either party.” The trial court has broad
discretion in determining whether a continuance should be granted.
Commonwealth v. Simmons, 56 A.3d 1280, 1285 (Pa.Super. 2012).
“Absent a manifest abuse of discretion, which results in prejudice to the
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defendant, the trial court’s decision [regarding a continuance] will not be
reversed on appeal.” Id. (citation omitted).
McCarter does not explain his claim, let alone prove, that the court’s
short, five-day continuance constituted an abuse of discretion. McCarter also
cannot establish that the continuance prejudiced him when, as discussed
above, the court was well within its purview to revoke his parole due to
technical violations alone, regardless of whether the Commonwealth produced
the Maryland statement of charges at the July 22, 2019 continued hearing.
Thus, McCarter’s second issue on appeal also lacks merit. Accordingly, we
affirm the parole revocation court’s judgment of sentence.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/20
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