Com. v. King, M. ( 2023 )

J-S07036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MELVIN KING :
:
Appellant : No. 866 EDA 2020
Appeal from the Judgment of Sentence Entered February 14, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008683-2014
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JUNE 26, 2023
Appellant, Melvin King, appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas, following revocation of his
probation. We affirm.
The trial court opinion set forth the relevant facts and procedural history
of this case as follows:
In 2015, Appellant was found guilty by the [the trial court]
of two violations of the Controlled Substance, Drug, Device,
and Cosmetic Act [at No. 8683-2014]. Appellant was
sentenced to twenty-one to forty-two months’ confinement,
with three years of probation to follow[, with credit for time
served]. In 2018, [while serving the probationary portion
of his sentence,] Appellant was charged [at No. 3697-2018]
with three violations of the Uniform Firearms Act and two
violations of the Crimes Code in relation to his involvement
in a gunfight in Philadelphia. Because [the original jurist]
was no longer sitting in the Criminal Section of the Trial
Division at that time, Appellant’s matter was assigned to [a
new jurist]. In 2019, Appellant proceeded to trial and was
found guilty by a jury of one violation of the Uniform
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Firearms Act….
After considering Appellant’s presentence [investigation]
report [(“PSI”)], Appellant’s mental health report,
submissions by the Commonwealth and Appellant,
Appellant’s prior record score, the sentencing guidelines,
and the purposes of the sentencing code, [the court]
sentenced Appellant to six to twelve years’ confinement [at
No. 3697-2018]. Based on this new conviction, [the c]ourt
also found Appellant in direct violation of his probation and
accordingly revoked Appellant’s probation [at No. 8683-
2014]. [The c]ourt then resentenced Appellant to two-and-
a-half to five years’ confinement, to be served concurrently
with the sentence imposed for Appellant’s new conviction.
(Trial Court Opinion, filed 11/2/21, at 1-2). Appellant did not file post-
sentence motions at No. 8683-2014.
Appellant timely filed a notice of appeal from the revocation sentence at
No. 8683-2014 on March 6, 2020. On March 10, 2020, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained on of
appeal, and Appellant subsequently complied.
On appeal, Appellant raises the following issues for our review:
Whether the sentencing court abused its discretion by
imposing a sentence after a probation violation that was not
based upon the gravity of the violation, the extent of
Appellant’s record, his prospect of rehabilitation, nor an
assessment of the mitigating and aggravating factors as
noted in 42 Pa.C.S. Section 9721 of the Sentencing Code.
Whether the evidence was insufficient as a matter of law to
make a determination that Appellant was in direct violation
of the terms and conditions of his probation when the
Commonwealth failed to establish the specific conditions of
probation during the revocation hearing and the initial
sentencing court did not advise Appellant of all the
conditions of his probation at the initial sentencing hearing.
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(Appellant’s Brief at 7).
In his first issue, Appellant argues the court abused its discretion in
imposing an unreasonable sentence following revocation. Appellant avers the
court ignored mitigating factors from the Sentencing Code, such as his
personal characteristics, the extent of his prior record, the gravity of the
offense in relation to the community, and Appellant’s rehabilitative needs.
Appellant concludes this Court should vacate the judgment of sentence or
remand for resentencing. As presented, Appellant’s first claim challenges the
discretionary aspects of sentencing. See Commonwealth v. Lutes, 793
A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing); Commonwealth
v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.
653, 676 A.2d 1195 (1996) (explaining claim that court did not consider
mitigating factors challenges discretionary aspects of sentencing).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspect of
sentencing issue:
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
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there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal
denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v. Evans,
901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d
303 (2006)). Generally, objections to the discretionary aspects of a sentence
are waived if they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed at that hearing. Commonwealth v. Mann,
820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d
599 (2003).
Instantly, Appellant did not challenge the discretionary aspects of his
sentence at the time of sentencing or in a post-sentence motion.1 Therefore,
Appellant’s first issue is waived. See id. Moreover, even if Appellant had
preserved a discretionary aspects challenge, it would not merit relief.
“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. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014). A
____________________________________________
1 We note Appellant did file a post-sentence motion on February 18, 2020,
wherein he challenged the weight of the evidence supporting his convictions
at No. 3697-2018. The post-sentence motion did not include any challenge
to the new revocation sentence imposed at No. 8683-2014, and the court
denied the motion on February 25, 2020.
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sentence should not be disturbed where it is evident the court was aware of
the appropriate sentencing considerations and weighed them in a meaningful
fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000).
“[U]pon 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. Coolbaugh,
770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a defendant to
total confinement after revoking probation if the defendant was convicted of
another crime, the defendant’s conduct indicates it is likely that he will commit
another crime if he is not imprisoned, or such a sentence is essential to
vindicate the court’s authority. Commonwealth v. Crump, 995 A.2d 1280(Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). If the
sentencing court has the benefit of a PSI report, the law presumes the court
was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with any mitigating factors.
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005).
A [PSI] report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly
that [sentencing courts] are under no compulsion to employ
checklists or any extended or systematic definitions of their
punishment procedure. Having been fully informed by the
[PSI] report, the sentencing court’s discretion should not be
disturbed. This is particularly true, we repeat, in those
circumstances where it can be demonstrated that the judge
had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.
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Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988).
Instantly, Appellant addressed the court at the revocation hearing.
Appellant took responsibility for his possession of the firearm, and he
explained that he “felt the need for protection in the type of neighborhood
that I lived in.” (See N.T. Revocation Hearing, 2/14/20, at 13). Despite
Appellant’s statement, the court revoked probation, imposed a new sentence,
and emphasized:
I have considered the [PSI report], the mental health report,
the submissions by the Commonwealth and defense, prior
record score report, sentencing guidelines, purposes of the
sentencing code.
[Appellant], there are several issues here. One is that
basically you’ve been dealing drugs, it looks like
consistently, since 1998 as an adult. Before that, as a
juvenile since 1994. It’s been like a business it looks like.
In and out of juvenile facilities. As an adult, you have 19
arrests, 15 convictions, 20 commitments. In the county
prison, state prison, violations, but it’s all for drug dealing.
* * *
I don’t think you ever stopped drug dealing from what I can
tell because the most recent arrest for drug dealing was
January 20th of 2018 and that was when [another jurist]
imposed a sentence of 9 to 23 months of incarceration. This
incident then happened, it looks like, on April 29th of 2018,
which I think was an incident that happened just five months
after the January arrest. I don’t know what’s going on, but
people tell me drugs is not a violent crime, it’s a nonviolent
crime. It’s not. It leads to shootings. I don’t know why
people are shooting at you and you were shooting at people,
but, considering everything else in this case, I don’t think
that the guidelines of 72 to 90 in terms of the—should be
eight or nine years, but there is a major problem. You’ve
been dealing drugs most of your life. I don’t know what else
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to say. A shooting on the street like this, I saw the video,
as did the jury many times. I think you should get all the
necessary medical treatment. That has nothing to do with
where you’re at in terms of—and I will send an email to the
state prison people detailing the medical condition,[2] the
medications you’re taking and other things, and ma[k]e
sure that they have that.
(Id. at 14-16). Thereafter, the court revoked probation and resentenced
Appellant to two and one-half (2½) to five (5) years of imprisonment at No.
8683-2014.
In its Rule 1925(a) opinion, the court elaborated on the reasoning for
Appellant’s new sentence:
[The] court followed the fundamental norms of the
sentencing process and appropriately sentenced Appellant
after revoking his probation. Prior to sentencing Appellant
on both his firearm conviction and violation of probation in
this case, [the] court reviewed Appellant’s [PSI] report, his
mental health evaluation, the Commonwealth’s sentencing
memorandum, submissions from Appellant’s family,
Appellant’s prior record score, the sentencing guidelines
form required by the Pennsylvania Commission on
Sentencing, and finally, the stated purposes of the
Sentencing Code. The record therefore reflects [the] court’s
careful consideration of the facts of Appellant’s crime and
character. [The] court expressed concerns about
Appellant’s extensive prior record, noting that Appellant had
previously been arrested nineteen times, convicted fifteen
times, violated probation or parole nineteen times, and
committed to prison twenty times, including for violations of
probation or parole.
* * *
____________________________________________
2 Earlier in the hearing, Appellant explained that he suffered from “non-
ischemic cardiomyopathy,” and he received a pacemaker for this condition.
(N.T. Revocation Hearing at 13).
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A sentence of total confinement was both appropriate and
permissible, as his conviction in this case was punishable by
total confinement, and Appellant had been convicted of
another crime. Appellant’s new sentence of total
confinement was additionally far less than the maximum
sentence that could have been imposed at the time of
Appellant’s probationary sentence. Appellant’s [possession
with the intent to deliver] conviction alone carried a
maximum sentence of twenty years, a fact Appellant
acknowledged when he signed the jury waiver colloquy
form. Moreover, because the new sentence of total
confinement was imposed concurrently, Appellant will be
able to complete this sentence at the same time he serves
the sentence ordered in his 2019 firearm conviction.
(Trial Court Opinion at 19-20) (some capitalization omitted).
Here, the record makes clear that the court adequately considered the
general principles of sentencing, as well as the PSI report. The presence of a
PSI report allows us to presume that the court was aware of Appellant’s
character and mitigating factors, and the court’s discretion while using a PSI
report should not be disturbed. See Devers, supra; Tirado, supra. Under
these circumstances, we cannot fault the court for determining that
Appellant’s new arrest and conviction while on probation weighed in favor of
the new sentence of incarceration. See Colon, supra.In his second issue, Appellant asserts that the revocation court did not
hear evidence on the probation violation and did not allow Appellant to defend
against the violation. Appellant alleges “there is no evidence on the record to
support and sustain the conviction for the violation and the resulting judgment
of sentence.” (Appellant’s Brief at 15). Appellant concludes that this Court
should vacate his judgment of sentence or remand for resentencing. We
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disagree.
The following principles apply to our review of a probation revocation:
When assessing whether to revoke probation, the trial court
must balance the interests of society in preventing future
criminal conduct by the defendant against the possibility of
rehabilitating the defendant outside of prison. In order to
uphold a revocation of probation, the Commonwealth must
show by a preponderance of the evidence that a defendant
violated his probation.
Colon, supra at 1041 (internal citations and quotation marks omitted). “[A]
court may find a defendant in violation of probation only if the defendant has
violated one of the ‘specific conditions’ of probation included in the probation
order or has committed a new crime.” Commonwealth v. Foster, 654 Pa.
266, 282, 214 A.3d 1240, 1250 (2019) (emphasis added). “Revocation and
resentencing are warranted if, in the face of a new criminal act or the violation
of a condition of probation, the court finds that probation is no longer
achieving its desired aims of rehabilitation and deterring criminal activity.”
Id. at 284, 214 A.3d at 1251.
Instantly, while on probation for the offense at No. 8683-2014,
Appellant committed a new offense. The Commonwealth charged Appellant
with the new offense at No. 3697-2018, and a jury found him guilty of violating
the Uniform Firearms Act. This conviction alone warranted the revocation of
Appellant’s probation. See id. Consequently, the record supports the court’s
determination that Appellant violated his probation based on his conviction for
a new crime. See Colon, supra.-9-
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To the extent Appellant also claims that he did not have an opportunity
to raise any defense, we note that the court conducted revocation proceedings
immediately after imposing the sentence for Appellant’s firearms conviction at
No. 3697-2018. At that time, defense counsel reminded the court that it still
needed to address the probation violation at No. 8683-2014. (See N.T.
Revocation Hearing at 17). At that point, Appellant could have attempted to
provide some type of defense, but he did not. Thus, the court imposed the
new sentence at No. 8683-2014, and Appellant indicated that he understood
the sentence imposed. (Id.) On this record, Appellant is not entitled to relief
on his second claim. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2023
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