Com. v. Glober, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RANDY GLOBER :
:
Appellant : No. 3635 EDA 2018
Appeal from the Judgment of Sentence Entered November 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005005-2016
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 11, 2020
Randy Glober (Appellant) appeals from the judgment of sentence
imposed after the trial court revoked his probation. Upon review, we affirm.
The trial summarized Appellant’s underlying convictions as follows:
[Appellant was arrested] on February 2, 2016 at 11:30 p.m.
within the 4900 block of Princeton Avenue, Philadelphia, PA just
after Philadelphia uniformed patrol officers responded following a
radio call about a person with a gun. Upon arrival, the officers
observed both Appellant and co-defendant, Kevin Ford, beating
and physically striking the complainant over the head with a hard
silver object. After being ordered to stop, Appellant and Ford ran
inside the house located at 4928 Princeton Avenue. Ford was
apprehended by the police upstairs. Appellant ran into the
basement and pointed a silver revolver at two other complainants.
After he threatened to shoot the complainants, Appellant ran into
the back room of the basement with the firearm. He then exited
the back room and hid the gun in the garage area of the
basement, where he was found and apprehended by the officers.
The silver operable firearm was recovered from the hidden
position in the basement.
Trial Court Opinion, 7/25/19, at 2.
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On November 15, 2017, Appellant pled guilty to aggravated assault,
conspiracy, and firearms not to be carried without a license.1 The same day,
the trial court sentenced Appellant to 1 to 2 years of incarceration, followed
by 3 years of probation.
Appellant was subsequently paroled; however, he was arrested six more
times “for multiple counts of burglary and related charges.” See N.T.,
11/21/18, at 9-10. As a result, the Commonwealth alleged that Appellant
violated his probation. Appellant appeared before the trial court on September
20, 2018 for a Gagnon II2 hearing. At the conclusion of the hearing, the trial
court found Appellant to be in violation of his supervision and revoked his
probation. On November 21, 2018, the trial court resentenced Appellant to 6
to 14 years of incarceration.
Appellant filed a motion for reconsideration of sentence on December 3,
2018. While his motion was pending, Appellant, on December 18, 2018, filed
a timely notice of appeal.3 Both Appellant and the trial court have complied
with Pennsylvania Rule of Appellate Procedure 1925.
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1 18 Pa.C.S.A. §§ 2702(a), 903, and 6106(a)(1).
2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 The docket indicates that the trial court never ruled on the motion, and once
Appellant filed his notice of appeal, the trial court was divested of jurisdiction
to do so. See Pa.R.A.P. 1701; see also Commonwealth v. Cooper, 27 A.3d
994, 1002 (Pa. 2011) (sentencing court “unquestionably divested of
jurisdiction” to decide reconsideration of sentence after defendant filed notice
of appeal).
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Appellant presents a single issue for review:
Was not the lower court’s sentence an abuse of discretion and
manifestly excessive because the court failed to comply with the
requirements of 42 Pa.C.S.A. § 9771(c); failed to adequately
consider the [A]ppellant’s background and individualized needs in
violation of 42 Pa.C.S.A. § 9721; and it is disproportionately harsh
considering the technical nature of the alleged violation?
Appellant’s Brief at 3 (footnote omitted).4
Appellant challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
____________________________________________
4 Appellant’s Rule 1925(b) statement raises three additional sufficiency
claims. See Rule 1925(b) Statement, 4/1/19, at *1-2. However, because
Appellant abandoned these claims in his brief, we do not address them. See
Appellant’s Brief at 3; see also Commonwealth v. Briggs, 12 A.3d 291, 310
n.19 (Pa. 2011), cert. denied, 132 S.Ct. 267 (2011) (refusing to address
claim appellant raised with trial court but subsequently abandoned in brief).
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Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Appellant has complied with the first three prongs of this test by raising
his sentencing claims in a timely post-sentence motion, filing a timely notice
of appeal, and including in his brief a Rule 2119(f) concise statement. See
Appellant’s Brief at 10-13. Therefore, we examine whether Appellant presents
a substantial question.
Appellant argues that the trial court “violated express provisions of the
Sentencing Code and imposed a manifestly excessive sentence that was
contrary to fundamental norms that underlie the sentencing process.”
Appellant’s Brief at 10. Specifically, Appellant avers that the court imposed
an excessive sentence by failing to consider “relevant sentencing criteria,
including the protection of the public, the gravity of the underlying offense
and the rehabilitative needs of the [A]ppellant, as 42 Pa.C.S. § 9721(b)
requires.” Id. at 11 (citing 42 Pa.C.S.A. § 9721(b)). We have held that such
a challenge presents a substantial question for our review. See
Commonwealth v. Derry, 150 A.3d 987, 994-95 (Pa. Super. 2016) (claim
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that a VOP sentencing court failed to consider the factors under 42 Pa.C.S.A.
§ 9721(b) raises a substantial question).
Turning to the merits, we note:
Upon revoking probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original
sentencing, including incarceration. 42 Pa.C.S. § 9771(b).
However, the imposition of total confinement upon revocation
requires a finding that either “(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 (3) such a sentence is essential to vindicate
the authority of the court.” 42 Pa.C.S. 9771(c).
Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (footnote
omitted). Further:
In selecting from the alternatives set forth in subsection (a), the
court shall follow the general principle 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. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . 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.
42 Pa.C.S.A. § 9721(b).
“Revocation of a probation sentence is a matter committed to the sound
discretion of the trial court and that court’s decision will not be disturbed on
appeal in the absence of an error of law or an abuse of discretion.”
Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation
omitted). Upon sentencing following a revocation of probation, the trial court
is limited only by the maximum sentence that it could have imposed originally
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at the time of the probationary sentence. Commonwealth v. Coolbaugh,
770 A.2d 788, 792 (Pa. Super. 2001). A re-sentence may not exceed the
statutory limits of the sentence, including allowable deductions for time
served. See id.Following revocation, a sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence of total confinement, 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, 1283 (Pa. Super. 2010). Also, “[w]hen a sentencing court has
reviewed a presentence investigation report, we presume that the court
properly considered and weighed all relevant factors in fashioning the
defendant’s sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v.
Fowler, 893 A.2d 758, 767 (Pa. Super. 2006)).
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along
with mitigating statutory factors. Additionally, the sentencing
court must state its reasons for the sentence on the record. 42
Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the
record by indicating that he or she has been informed by the pre-
sentencing report; thus properly considering and weighing all
relevant factors.
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Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,
154 (Pa. Super. 2004)) (citations omitted).
Here, the record reflects that the trial court did not abuse its discretion
or commit an error in resentencing Appellant. Appellant admits that he
violated probation. See Appellant’s Brief at 22. At the resentencing hearing,
the trial court stated it had reviewed and considered Appellant’s pre-sentence
investigation report. See N.T., 11/21/18, at 13, 17. Prior to imposing
Appellant’s sentence, the trial court stated:
All right. Well, [Appellant], I did consider the underlying
facts of these cases. I did consider the information, brief as it
was, within your presentence investigative report and mental
health assessment. Your abuse of narcotics does seem to be the
root of your bad behavior. I considered the fact that you didn’t
do a single thing that I told you to do. And here you are again. .
. . [Appellant], I thought I was quite clear with you, because the
underlying cases were extremely serious in nature, and that
combined with your youth and your drug use did not bode well for
the future. And I was trying -- obviously, it didn’t work -- to have
things set up in a step down so that you would be appropriately
monitored and pick up on problems before subsequent criminal
activity.
I do deem you at high risk for future criminal activity, sir.
And the fact that you picked up so many arrests in a very short
period of time, I might add, while just released from parole does
not bode well for the safety of the community.
N.T., 11/21/18, at 17-19.
The trial court further explained:
Contrary to Appellant’s argument, the [c]ourt did
contemplate Appellant’s rehabilitative needs when determining an
appropriate sentence. The record clearly reflected that the
presentence investigative reports were incorporated and
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referenced as relied upon before cogent reasons for the imposed
sentence[] were succinctly stated. . . .
Appellant had been arrested an inordinate amount of six
times for various criminal offenses while under this [c]ourt’s
conditioned supervision. He failed to report as directed. He
absconded. He demonstrated no effort to become employed
legitimately. He paid no fines. Basically, Appellant’s conduct
reflected zero respect for judicial supervising authority and a high
degree of future criminal recidivism. He posed a significant
danger to this community particularly in light of the violence he
had exhibited toward the victims in the underlying cases that
brought him before this [c]ourt.
After legitimately determining revocation had been due, this
[c]ourt [] possessed discretion to sentence Appellant to the same
amount of time originally available at the time the guilty pleas had
been tendered.
Trial Court Opinion, 7/25/19, at 16-17.
Upon review, we agree. The trial court reviewed Appellant’s pre-
sentence investigation report, and as required by Section 9721, considered
Appellant’s age, his issues with drug abuse, the serious nature of his prior
convictions, and his continued risk to the community, as evidenced by
Appellant’s arrests while on probation. See 42 Pa.C.S.A. § 9721(b); see also
N.T., 11/21/18, at 17-19. Accordingly, the trial court properly adhered to
Section 9771. See 42 Pa.C.S.A. § 9771; see also N.T., 11/21/18, at 17-19.
Judgment of sentence affirmed.
P.J. E. Bender joins the memorandum.
Judge Stabile concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/20
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