Com. v. Sickler, W. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER SICKLER :
:
Appellant : No. 1446 WDA 2022
Appeal from the Judgment of Sentence Entered October 17, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000062-2020
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: AUGUST 14, 2023
Appellant, Walter Sickler, appeals from the judgment of sentence
entered October 17, 2022, as made final by the denial of his post-sentence
motion on October 28, 2022, following the revocation of his probation. We
affirm.
On August 25, 2020, Appellant pled guilty to indecent assault – person
less than 13-years-old, endangering the welfare of a child, and corruption of
minors.1 That day, the trial court sentenced Appellant to an aggregate term
of seven to 14 months’ incarceration, followed by five years’ probation. The
trial court also classified Appellant as a Tier III registrant under the Sexual
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1 18 Pa.C.S.A. §§ 4304(a)(1), 3126(a)(7), and 6301(a)(1)(ii), respectively.
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Offender’s Registration and Notification Act (“SORNA”),2 thereby subjecting
him to SORNA’s lifetime registration requirements.
On March 26, 2021, Appellant was incarcerated on a probation-violation
detainer. On April 5, 2021, a Gagnon I3 hearing was held, wherein the trial
court provided the following summary of Appellant’s alleged probation
violations:
Since [Appellant’s] parole [closed], he has been in treatment.
We had a least one compliant review. And then, on March [15,
2021], he was administered a denial polygraph, which he failed.
In addition to that, he made some disclosures that are
concerning and also violate his supervision conditions. Ongoing
drug and alcohol use, as well as viewing pornography.
In addition to that, in speaking with his probation officer,
[Appellant] indicated that he was having contact with minors
and his supervision was described as being rather lackadaisical.
[Appellant] resides with this brother, who has pending charges
as well with another judge in my building, and is on supervision
with [p]retrial [s]ervices on an ankle bracelet at this time, which
is not an approved residence.
N.T. Hearing, 4/5/21, at 2-3. Appellant did not contest any of the allegations
set forth by the trial court. Id. at 3. Appellant’s probation officer then
recommended that, prior to his release from incarceration, he be enrolled in
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2 42 Pa.C.S.A. §§ 9799.10 to 9799.41.
3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth
v. Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining that, when a
parolee or probationer is detained pending a revocation hearing, due process
requires a determination at the pre-revocation hearing (Gagnon I hearing) of
probable cause to believe a violation was committed, and upon finding of
probable cause, a second, more comprehensive hearing (Gagnon II hearing)
follows before the trial court makes its final revocation decision).
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the diversion program, and they “provide [Appellant with] an approved home
plan.” Id. at 4. The trial court adopted the officer’s recommendation,
indicating its desire that Appellant be placed in Steadfast, a boarding house,
because it imposed supervision. Id. at 9-10. Thereafter, Appellant was
released from incarceration and placed in Steadfast. N.T Hearing, 3/21/22,
at 2.
On February 23, 2022, Appellant was again incarcerated on a
probation-violation detainer. A Gagnon I hearing was held on March 21,
2022. It was alleged that Appellant committed a number of probation
violations, including, lying to his probation officer about attending sex offender
treatment; having a cellular telephone with internet capabilities; using the
cellular telephone to visit “numerous websites regarding teenage girls, some
of them quite graphic;” having inappropriate contact with minors, including
exchanging money for sexual favors; and obtaining and consuming marijuana
provided to him by his minor daughter. N.T. Hearing, 3/21/22, at 2-4, and 7.
Upon review, the trial court concluded that, while it was “very clear that
[Appellant] need[ed] treatment,” it was “concerned that the level of
commitment to deviant behavior [was] quite high.” Id. at 6. As such, the
trial court scheduled a Gagnon II hearing, ordered a pre-sentence
investigation report (“PSI”) and directed Appellant to undergo a psychiatric
evaluation. Id. at 9.
Appellant’s Gagnon II hearing was held on October 17, 2022. At the
outset, the trial court reiterated Appellant’s alleged violations, listed above.
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N.T. Hearing, 10/17/22, at 1-3. Thereafter, Appellant’s probation officer
stated that, in light of the “obviously significant” violations, he recommended
imposing a “[s]tate-length sentence.” Id. at 3. Ultimately, the trial court
adopted the probation officer’s recommendation, revoked Appellant’s
probation, and sentenced him to an aggregate term of two to four years’
incarceration, followed by three years’ probation. Id. at 10-12. Appellant
filed a post-sentence motion on October 27, 2022, which the trial court denied
the next day. This timely appeal followed.
Appellant raises the following issue on appeal:
Whether the trial court abused its sentencing discretion by
failing to apply all relevant sentencing criteria, including the
protection of the public, the gravity of the offense, and
[Appellant’s] character and rehabilitative needs, as required by
42 Pa.C.S.A. § 9721(b)?
Appellant’s Brief at 6 (superfluous capitalization omitted).
“[Our] scope of review in an appeal from a revocation [sentence]
includes discretionary sentencing challenges.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). “An abuse of
discretion is not merely an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown
by the evidence or the record, discretion is abused.” Commonwealth v.
Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citation omitted),
appeal denied, 8 A.3d 341 (Pa. 2010).
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This Court previously explained:
It is well-settled that “the right to appeal a discretionary aspect
of sentence is not absolute.” Commonwealth v. Dunphy, 20
A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, we should
regard his[, or her,] appeal as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.
2007). As we stated in Commonwealth v. Moury, 992 A.2d
162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of
his[, or her,] sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine:
(1) whether appellant [] 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, [see] Pa.R.A.P. 2119(f);
and (4) whether there is a substantial question
that the sentence appealed from is not
appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
[Moury, 992 A.2d] at 170 [(citation omitted)]. We evaluate on
a case-by-case basis whether a particular issue constitutes a
substantial question about the appropriateness of sentence.
Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001).
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted). A substantial question exists when an appellant presents
“a colorable argument that the sentence imposed is either [(1)] inconsistent
with a specific provision of the sentencing code or [(2)] is contrary to the
fundamental norms which underlie the sentencing process.” Commonwealth
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v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d
825 (Pa. 2011) (quotation omitted).
Herein, Appellant filed a timely notice of appeal, preserved his
sentencing challenge by filing a post-sentence motion, and included a Rule
2119(f) concise statement in his appellate brief. See Appellant’s Brief at
13-16. Moreover, Appellant has raised a substantial question for our review
by asserting that the trial court “fail[ed] to consider relevant sentencing
criteria, including the protection of the public, the gravity of the underlying
offenses and violation, and [Appellant’s] character, personal history and
rehabilitative needs . . . as required by 42 Pa.C.S.A. § 9721(b).” Appellant’s
Brief at 15; see Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.
2012) (explaining that an allegation that “the trial court failed 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.A. § 9721(b) requires,” presents a substantial question); see also
Commonwealth v. Derrikson, 242 A.3d 667, 680 (Pa. Super. 2020);
Commonwealth v. Serrano, 150 A.3d 470, 473 (Pa. Super. 2016) (accord).
Having determined that Appellant has met these threshold
requirements, we proceed to review the merits of his appeal. “Revocation of
a probation[ary] 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. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation omitted), aff’d., 44
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A.3d 58 (Pa. 2012) (quotation omitted). Upon revocation of probation, a
sentencing court has all of the sentencing options that existed at the time of
the original sentence. 42 Pa.C.S.A. § 9771(b).
In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing court's
discretion, as he or she is in the best position to measure factors
such as the nature of the crime, the defendant's character, and
the defendant's display of remorse, defiance, or indifference.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)
(citation omitted).
[However,] in all cases where the court “resentences an
offender following 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.” Failure to comply with these provisions
“shall be grounds for vacating the sentence or resentence and
resentencing the defendant.”
Cartrette, supra at 1041, quoting 42 Pa.C.S.A. § 9721(b). “A [trial] court
need not undertake a lengthy discourse for its reasons for imposing a sentence
or specifically reference the statute in question, 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), appeal denied, 13 A.3d 475 (Pa. 2010). Importantly,
“where the sentencing judge had the benefit of a [PSI] 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
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statutory factors.” See e.g., Commonwealth v. Clarke, 70 A.3d 1281, 1287
(Pa. Super. 2013) (quotation omitted).
A review of the certified record in this matter reveals the following. At
the outset of the October 17, 2022 Gagnon II hearing, the trial court
indicated that it received Appellant’s PSI, psychiatric evaluation, and a
recommendation provided by Justice Related Services (“JRS”). N.T Hearing,
10/17/22, at 2. Then, the court reiterated Appellant’s various alleged
violations, which included possessing a cellular telephone with internet
capabilities, using the cellular telephone since November 2021 to access the
internet to visit numerous pornographic and dating websites, creating a
Facebook account, and engaging with “multiple minor friends” to, inter alia,
exchange money for sexual favors and consume marijuana. Id. at 2-3.
Appellant admitted to all but exchanging money for sexual favors. Id. at 5.
Based upon the forgoing conduct, Appellant’s probation officer, Douglas
Thase, stated:
[T]he nature of the violations are obviously significant. As you
stated, he had a previous opportunity to comply with that. … I
do believe that we have run out of resources, or ways to
supervise [Appellant], and as a result[,] we are left with the
only option at this point, which is a [s]tate-length sentence.
Id. at 3.
Despite Officer Thase’s recommendation, Appellant’s counsel proposed
an alternative housing arrangement, suggesting a residential commitment at
“Farkus House” or “possibly a [Community Residential Rehabilitation (“CRR”)]
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group home.” Id. at 3-4. A JRS representative, however, indicated that, “in
[her] professional opinion[, Appellant] would be denied [admission to a CRR
group home] due to his mental health.” Id. at 4. The trial court considered
Appellant’s counsel’s proposal but noted that “Farkus House is a lower level of
supervision than Steadfast,” where Appellant was previously located and
committed the aforementioned violations. Id. at 7. Based upon the
foregoing, the trial court stated:
The issue is his ongoing use of illicit substances, his ongoing
engagement with minor children, his corruption of minors,
asking his own daughter to provide him with [marijuana]; his
use of pornography, which is specifically adverse to the
conditions of his mental health treatment. An ankle bracelet
[will not] change that.
We have tried to address his treatment needs. He failed the
first time and was given a second chance. And my notes
indicate here this last time he was again dishonest about his
compliance with treatment.
So[,] at this point[,] I [am] not confident that doing the same
thing over again is going to produce a different result, especially
since Farkus is a [less restrictive facility.]
Id. at 8. Thereafter, the trial court revoked Appellant’s probation and imposed
sentence. Id. at 10-13.
Upon review, we conclude that, although the trial court spoke tersely in
rendering its sentence, it indicated on the record that it was informed by the
PSI report and Appellant’s response, over time, to his treatment regimen and
supervisory conditions. See N.T Hearing, 10/17/22, at 2. This is sufficient to
satisfy the statutory requirement that a trial court state, in open court at the
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time of sentencing, the reasons for its sentence. See Commonwealth v.
Reynolds, 835 A.2d 720, 734 (Pa. Super. 2003). Moreover, it is evident that
the trial court, through multiple encounters, was familiar with Appellant, the
nature and gravity of his offenses and serial probation violations, and the clear
need to protect the public in this case. Hence, we discern no abuse of
discretion on the part of the trial court, as it adequately considered the
sentencing factors as required by 42 Pa.C.S.A. § 9721(b).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2023
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