Com. v. Mitchell, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN MITCHELL :
:
Appellant : No. 2080 EDA 2022
Appeal from the Judgment of Sentence Entered July 12, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004480-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED AUGUST 22, 2023
Jonathan Mitchell appeals from the judgment of sentence imposed
following the revocation of his probation, which resulted in a one-to-two-year
term of incarceration to be followed by one year of probation. On appeal,
Mitchell challenges the discretionary aspects of this sentence, averring that
the court failed to consider all of the relevant sentencing guidelines.
Specifically, Mitchell contends that the court’s lack of consideration into his
overall danger to the community and rehabilitative needs resulted in too
excessive of a sentence. We disagree and therefore affirm, but remand for the
court to file a new sentencing order that is consistent with the sentence
originally imposed on June 1, 2022.
As background, the record reflects that Mitchell entered into a non-
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 Retired Senior Judge assigned to the Superior Court.
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negotiated guilty plea on January 22, 2020, wherein he pleaded guilty to one
count of aggravated assault stemming from a May 28, 2018 incident involving
the use of a machete on the victim’s left ankle. See 18 Pa.C.S. § 2702.
Resultantly, on July 9, 2020, the court imposed a sentence of time served to
twenty-three months of incarceration to be followed by three years of
probation, predicated on his cooperation with the probation department’s
mental health unit. By that point, however, Mitchell “had been in custody
approximately 26 months.” Trial Court Opinion, 9/22/22, at 2. As such, he
was immediately released from incarceration, identified by the court as it
“granting [Mitchell] immediate parole,” id., at 3, and Mitchell then began
serving his term of probation.
On November 20, 2020, the court conducted its first violation of
probation (“VOP”) hearing. Subsequently, the court conducted seven
additional VOP hearings due to issues stemming from Michell’s noncompliance
with the terms of his probation, but at each of these junctures, probation was
continued. Ultimately, due to Mitchell’s inability to adhere to his probation’s
terms regarding drug and mental health treatment, e.g., testing positive for
cocaine usage, in addition to an out-of-county arrest and sentencing, the court
revoked probation on June 1, 2022, and immediately sentenced Mitchell to
one-to-two years of incarceration to be followed by one year of probation.
On June 8, 2022, Mitchell filed a timely motion for reconsideration of
this newly imposed post-revocation sentence. The court, on June 29, 2022,
filed an order simultaneously vacating its judgment of sentence and
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scheduling the matter for a new sentencing hearing on July 12, 2022. See 42
Pa.C.S. § 5505 (trial court may rescind any order within 30 days after its entry
if no appeal has been taken therefrom). On that July date, the court issued an
order that purported to deny Mitchell’s motion for reconsideration, further
writing “[s]ame sentence to stand.” Order Denying Motion for
Reconsideration, 7/12/22. The court did not issue a new sentencing order.
Responsively, Mitchell filed yet another motion for reconsideration of his
sentence, which, on August 10, 2022, was denied by the lower court. On that
same date, Mitchell filed a notice of appeal from the July 12 Order.1
On appeal, Mitchell presents one issue for review:
1. Was the court’s imposition of a state sentence excessive, as it
was not only disproportionate to his violating conduct, but also
violative of Pennsylvania Sentencing Code’s subsection
9721(b)?
See Appellant’s Brief, at 3.
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1 On October 19, 2022, this Court issued an order directing Mitchell to show
cause why this appeal should not be quashed as having been taken from the
July 12, 2022 order, which purported to deny Mitchell’s motion for
reconsideration and was not entered on the docket as a judgment of sentence.
Mitchell’s response indicates that the trial court intended, through its July 12,
2022 order, for Mitchell to serve the one-to-two-year VOP sentence imposed
on June 1, 2022, but that was subsequently vacated. The rule to show cause
was thereafter vacated, and the issue was referred to the merits panel. Upon
review of the record here, including the transcript of the July 12, 2022 hearing,
and as evidenced in the briefs filed in this appeal, it is clear that the trial court
intended to reimpose the June 1, 2022 sentence. Nevertheless, in light of the
procedural peculiarity of the proceedings below and as discussed further,
infra, we remand the matter for the court to issue a new sentencing order that
is congruent with its original sentencing scheme.
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Mitchell’s sole claim challenges the discretionary aspects of his
sentence.2 Correspondingly, to review such a claim, we are guided by a well-
settled standard of review:
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by error in judgment. Rather,
the appellant must establish, by reference to the record, 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.
Commonwealth v. Moye, 266 A.3d 666, 676-77 (Pa. Super. 2021) (citation
omitted).
Prior to our examination of Mitchell’s substantive claim, however, we
note that “[t]he 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). As such, “[a]n appellant must satisfy a four-part test to invoke this
Court's jurisdiction when challenging the discretionary aspects of a sentence.”
Id.The four-part test requires an appellant to demonstrate that:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
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2 As Mitchell was sentenced following the revocation of his probation, the
sentencing guidelines do not apply to his sentence. See 204 Pa. Code §
303.1(b). However, a sentencing court is still required to “consider the general
principles and standards of the Sentencing Code.” Commonwealth v.
Russell, 460 A.2d 316, 322 (Pa. Super. 1983).
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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.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). In establishing a “substantial question,” an appellant must set “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); see also 42 Pa.C.S. § 9721(b) (requiring a sentence of confinement
to be 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[ ]”). If there is satisfaction of an
appellant’s obligations under the four-part test, this Court will then review the
underlying discretionary aspects of sentencing issue predicated on an abuse
of discretion standard. See Commonwealth v. Akhmedov, 216 A.3d 307,
328-29 (Pa. Super. 2019) (en banc).
Given that Mitchell filed both the appropriate post-sentence motion and
a timely notice of appeal and, too, through his inclusion of a concise Rule
2119(f) statement in his brief, see Appellant's brief, at 8-10, we conclude that
he has satisfied the first three requirements of the four-part test. As such, we
must ascertain whether that Rule 2119(f) statement contains a substantial
question.
In his Rule 2119(f) statement, he argues that his “sentence was
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disproportionate to his violating conduct[,]” that the court “took no account of
[his] mitigating circumstances, specifically his mental illness[,]” and that he
“was not a danger to the community[.]” Id., at 8. As a result of these actions,
“[t]he lower court violated the Sentencing Code[, specifically Section
9721(b),] and imposed an excessive sentence contrary to the fundamental
norms which underlie the sentencing process.” Id. Accordingly, Mitchell
asserts that he has raised a substantial question.
Section 9721(b) of the Sentencing Code indicates 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.” 42 Pa.C.S. § 9721(b). In prior cases, we have determined that a
substantial question exists where the contention is that a sentencing court
failed to consider Section 9721(b) factors. See, e.g., Commonwealth v.
Derry, 150 A.3d 987, 994-95 (Pa. Super. 2016) (concluding that a VOP court’s
failure to consider Section 9721(b) factors presents a substantial question).
As Mitchell has raised a substantial question, we may proceed to review the
merits of his argument on appeal.
Specifically in the context of post-VOP sentencing,
[u]pon revoking probation, “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.” 42 Pa.C.S. § 9771(b). Thus, upon
revoking probation, the trial court is limited only by the maximum
sentence that it could have imposed originally at the time of the
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probationary sentence, although once probation has been
revoked, the court shall not impose a sentence of total
confinement unless it finds that:
(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. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). “Moreover, 42
Pa.C.S. § 9721(b) specifies that in every case following the revocation 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.’ See also Pa.R.Crim.P. 708(C)(2) (indicating at the time
of sentence following the revocation of probation, ‘[t]he judge shall state on
the record the reasons for the sentence imposed.’).” Pasture, 107 A.3d at 28
(footnote omitted).
However, following revocation, a sentencing court need not
undertake a lengthy discourse for its reasons for imposing a
sentence or specifically reference the statutes in question. Simply
put, since the defendant has previously appeared before the
sentencing court, the stated reasons for a revocation sentence
need not be as elaborate as that which is required at initial
sentencing. The rationale for this is obvious. When sentencing is
a consequence of the revocation of probation, the trial judge is
already fully informed as to the facts and circumstances of both
the crime and the nature of the defendant[.]
Id.
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In contesting the court’s lack of contemplation of mitigating
circumstances, Mitchell’s excessiveness claim has two components: (1) he
was not a danger to the community; and (2) the court did not consider his
rehabilitative needs. See Appellant’s Brief, at 16-18. As to the former
contention, Mitchell observes that, after a series of status hearings, which
featured a series of probation continuances from the court, his probation
officers “never recommended incarceration.” Id., at 16. As to the latter
assertion, the court “gave no consideration that [his] mental illness was a
contributing factor to his noncompliance. Nor did the lower court explain how
prison would address [his] rehabilitative needs.” Id., at 17.
In response, the court found that its VOP sentence “was strictly within
the range” for the aggravated assault charge in which Mitchell had originally
been convicted. Trial Court Opinion, 9/22/22, at 5; see also 18 Pa.C.S. §
106(b)(3) (providing that a second-degree felony carries a maximum
sentence of “not more than ten years”). The court then outlined the eight VOP
hearings that were replete with examples of Mitchell’s “continued failure to
comply with probation and related violations.” Trial Court Opinion, 9/22/22,
at 6. However, the parties “requested the [c]ourt to continue probation to
allow [Mitchell] additional opportunities to attend drug treatment and mental
health services.” Id. In the penultimate hearing preceding revocation, Mitchell
was “pointedly advised … this was his ‘last chance’ or his probation [would]
be revoked.” Id.
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At the VOP hearing, the court reviewed with Mitchell its prior
continuances of his probation. Specifically, the court highlighted its prior
continuation order: “[The court’s] order is clear: Probation continued.
Granted, defendant is ordered to comply with the rules of Northeast Mental
Health. That was a CRR program. It is very clear. He is to comply or his
probation will be revoked. … This is defendant’s last chance.” VOP Hearing,
6/1/22, at 16-17. The court then asked Mitchell, regarding his failure to
comply with that order, “[d]id I say – did I say five words to you, ‘I will lock
you up?’” Id., at 17. Mitchell responded, “[y]es, you did, Your Honor.” Id., at
18. The court continued: “If there was noncompliance, [the court] was not
continuing probation any further in this case. Probation has been continued in
an effort for treatment with drug compliance since June of 2020.” Id. After
revoking his probation, the court then inquired, “is there a specific facility that
can address his treatment?” Id., at 18-19. The court incorporated the
Commonwealth’s response, specifically recommending “SCI Waymart for
mental health and substance abuse issues.” Id., at 19. After that, the court,
in discussing its imposition of probation as a component of the post-revocation
sentence, indicated its desire that Mitchell receive treatment from the “mental
health unit” of the probation office. Id., at 19-20.
While the court did not discuss, with any specificity, Mitchell’s overall
danger to the community, it was apprised of all of the relevant facts necessary
to craft the sentence that it did. See, e.g., id., at 6 (demonstrating, for
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example, that the Commonwealth advised the court that Mitchell had pleaded
guilty to disorderly conduct in another county while on probation in the present
matter). Moreover, the court’s sentence, through its very construction,
unequivocally establishes that it was concerned with Mitchell’s rehabilitative
needs. The sentence explicitly allows for him to receive adequate treatment
with the anticipation of helping his admitted “drug problem.” Id., at 18.
Mitchell does not contest whether he violated the terms of his probation.
Instead, he challenges the court’s imposition of a term of incarceration. In
giving credence to the wide amount of deference afforded to the sentencing
court and when juxtaposed against both Mitchell’s transgressions leading to
probation revocation as well as the court’s concern over his prospective drug
treatment, the court thoroughly considered his rehabilitative needs in
sentencing him. As such, it did not abuse its discretion in imposing a sentence
of one to two years of incarceration to be followed by one year of probation.
Notwithstanding our affirmation of Mitchell’s judgment of sentence, we
note the procedural irregularity necessitating remand. Having already vacated
the sentence it imposed on June 1, 2022, the court, on July 12, 2022, denied
Mitchell’s motion for reconsideration of that sentence. The court then wrote in
its July 12, 2022 order: “[s]ame sentence to stand.” Order Denying Motion for
Reconsideration, 7/12/22. In essence, then, despite all parties acknowledging
the court’s original June 1, 2022 order as the one currently governing
Mitchell’s sentence, there is no actual judgment of sentence order of record
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that sets forth the terms of the sentence that Mitchell is currently serving.
Accordingly, we remand for the court to issue a new sentencing order that
materially reflects its prior June 1, 2022 order.
Judgment of sentence affirmed. Case remanded for the filing of a new
sentencing order. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2023
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