Com. v. Clapper, D. ( 2017 )


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  • J-S63030-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    DAVID CLAPPER
    Appellant               No. 1246 WDA 2016
    Appeal from the Judgment of Sentence Dated July 20, 2016
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0013172-2009
    BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY SOLANO, J.:                       FILED NOVEMBER 30, 2017
    Appellant, David Clapper, appeals from the judgment of sentence
    entered after the revocation of his probation imposed for aggravated
    indecent assault without consent, indecent assault without consent of
    another, and simple assault.1 We affirm.
    The facts of this case were set forth in our prior decisions in this
    matter — Commonwealth v. Clapper, No. 849 WDA 2012 (Pa. Super.,
    Nov. 27, 2012) (“Clapper I”), appeal denied, 527 WAL 2012 (Pa., May 29,
    2013); Commonwealth v. Clapper, No. 716 WDA 2014 (Pa. Super.,
    Dec. 18, 2014) (“Clapper II”); and Commonwealth v. Clapper, No. 161
    WDA 2016 (Pa. Super., Dec. 12, 2016) (“Clapper III”), appeal denied,
    ____________________________________________
    1
    18 Pa.C.S. §§ 3125(a)(1), 3126(a)(1), and 2701(a)(1), respectively.
    J-S63030-17
    No. 22 WAL 2017 (Pa., Aug. 1, 2017) — and in the decision below following
    the hearing on Appellant’s violation of probation (“VOP”):
    On August 9, 2009, Appellant was arrested in connection with a
    sexual assault that occurred the previous evening. The victim
    reported that, . . . on the evening of August 8, 2009, Appellant
    approached her in an alleyway, engaged her in conversation,
    and then grabbed her. Appellant placed his hands down her
    pants and penetrated her vagina with his fingers before she was
    able to break his embrace and run away.
    Clapper I, at 1-2 (footnote and citation to the record omitted).
    During the assault, the victim pressed the “redial” button on her
    phone at 9:07 p.m., 9:08 p.m., 9:09 p.m., 9:10 p.m., 9:11
    p.m., and 9:12 p.m. Meanwhile, the victim noticed a black
    sports car drive up to the alley and a male driver exit the vehicle
    and enter a nearby store while the female passenger stayed in
    the vehicle.     After the male driver returned, the female
    passenger observed the assault and exited the vehicle, at which
    time the victim escaped.4 The victim then found a police officer
    at 9:15 p.m.       Appellant was eventually apprehended and
    charged.
    4
    The driver and passenger were never identified.
    Clapper II, at 1-2 (citations to the record omitted).
    On October 28, 2009, Appellant was charged with one count
    each of unlawful restraint, aggravated indecent assault, indecent
    assault, and simple assault. On November 4, 2011, Appellant
    waived his right to a jury trial and proceeded to a bench trial
    before the Honorable Joseph K. Williams, III. Prior to the
    presentation of witnesses, Appellant stipulated that he was guilty
    of indecent assault and simple assault. Thereafter, Appellant
    proceeded to trial on the remaining charges of aggravated
    indecent assault and unlawful restraint.
    Clapper I, at 2 (footnote omitted).
    During trial, the victim testified that Appellant walked up to her
    in an alley and asked to borrow a lighter. The victim testified
    that, after giving Appellant [her] lighter:
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    My sunglasses fell off my head, so I went down to pick
    them up, and that’s whenever I was put in a bear hug, and
    my defense was to try to fall to the ground and try to
    wrestle my way out of it, except at that point, whenever I
    did that, [Appellant] ended up choking me on my neck,
    and at that time, he was also fondling my breasts, and had
    already unzipped and unbuttoned my pants and had his
    hands down inside of my pants and inside of me. . . . He
    was penetrating my vagina.
    N.T. Trial, 11/4/11, at 15.
    Clapper III, at 2.
    At the close of trial, on November 4, 2011, the trial court found
    Appellant guilty of aggravated indecent assault, but not guilty of
    unlawful restraint.
    On January 12, 2012, the trial court sentenced Appellant to an
    aggregate sentence of two to four years’ imprisonment, to be
    followed by seven years’ probation. Thereafter, on January 18,
    2012, Appellant filed a timely post-sentence motion.         On
    January 24, 2012, the trial court granted Appellant leave to file
    an amended post-sentence motion, which Appellant filed on
    March 13, 2012. Thereafter, on May 21, 2012, Appellant's post-
    sentence motions were denied by operation of law pursuant to
    Rule 720 of the Pennsylvania Rules of Criminal Procedure.
    Clapper I, at 2-3 (footnote omitted).
    Appellant filed a timely direct appeal, and this Court affirmed the
    judgment of sentence on November 27, 2012.           Appellant’s petition for
    allowance of an appeal was denied by the Supreme Court on May 29, 2013.
    Thereafter —
    Appellant timely filed [a] PCRA petition on August 9, 2013[.] . . .
    The PCRA court appointed counsel, who filed a petition to
    withdraw pursuant to Turner/Finley9 on February 4, 2014. . . .
    9
    Commonwealth v. Turner, 
    544 A.2d 927
     (Pa. 1998);
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa. Super. 1988)
    (en banc).
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    J-S63030-17
    The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to
    dismiss. Appellant filed a timely response in opposition[.] . . .
    Appellant did not seek leave of court to file an amended PCRA
    petition.   On March 27, 2014, the PCRA court dismissed
    Appellant’s PCRA petition and granted permission for Appellant’s
    PCRA counsel to withdraw.
    Appellant filed a pro se timely appeal on April 22, 2014 . . . .
    Clapper II, at 5-6. On December 18, 2014, this Court vacated the PCRA
    court’s decision and “remanded for an evidentiary hearing on whether PCRA
    counsel was ineffective for failing to investigate the absence of a guilty plea
    colloquy.” Id. at 14; see also id. at 13. That evidentiary hearing was held
    on October 21, 2015, and, on October 30, 2015, the PCRA court dismissed
    the PCRA petition.     This Court affirmed that dismissal on December 12,
    2016, Clapper III, at 1, and the Supreme Court of Pennsylvania denied
    Appellant’s petition for allowance of an appeal on August 1, 2017.
    Meanwhile, on March 18, 2015, while Appellant was awaiting his new
    evidentiary hearing, his probation began.     VOP Ct. Op., 1/26/17, at 2.    A
    year later, he violated it:
    Because of the crimes of conviction, aggravated indecent
    assault, in particular, [Appellant] was deemed a sex offender
    and subject to specific written guidelines. The Special Field
    Report of August 24, 2015 attached various acknowledgments
    from [Appellant] about the sex offender guidelines. On May 25,
    2016 a notice hearing was scheduled. A few days later, the
    [c]ourt received “Arrest Report #2”.         It identified five (5)
    technical violations and requested [Appellant] be detained.
    Attached to that document was a “Summary of Adjustments” It
    did not paint a positive picture of Mr. Clapper.
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    J-S63030-17
    In anticipation of the July, 2016 violation hearing, the [c]ourt
    ordered a mental health evaluation be done. It was received on
    June 8th and reviewed shortly thereafter.
    On July 20, 2016, the parties gathered for [Appellant]’s hearing.
    [Appellant] spoke as did his state probation officer, Thomas
    Bowman. Mr. Bowman provided sufficient facts to justify the
    accusations to be deemed accurate.
    Id. Bowman testified as follows:
    [Appellant] has been given every opportunity since he got out to
    attend sex offender treatment. He was discharged for non-
    compliance. He failed a polygraph and then he failed to return
    to treatment. I got him back into treatment. He was discharged
    but failed to show up. Shortly thereafter in November of last
    year he had gotten pulled over in his truck, another story that
    somebody must have done something to his vehicle that’s why
    there was a wrong plate on there, okay. Those charges were
    pled out. We tried to get him back into sex offender treatment
    at another organization, Mercy Behavioral Health, he never
    called there. I noticed that he was being depressed. He had
    individuals over his house that were either high or drunk or both
    and he was basically slumped on his couch. . . . We tried to get
    him to Mon Yough Community Center for an evaluation for
    mental health, he never called. . . . It’s already been proven he’s
    admitted to alcohol usage. He’s admitted to marijuana usage.
    Last time two months ago he admitted to doing crack cocaine.
    N.T., 7/20/16, at 12-13.
    During the VOP hearing, Judge Williams, who had presided at
    Appellant’s trial in 2011 and therefore was familiar with the case, observed:
    “Part of the problem of this case is that it’s been going on for nearly seven
    years and [Appellant] has been resistant to any of a number of overtures
    that I have proposed in sentencing or that the state tried to engage him in
    with respect to intervention.” N.T., 7/20/16, at 4. At the hearing —
    Defense counsel . . . acknowledged the contents of “Arrest
    Report #2” and offered “no additions or corrections.” [N.T.,
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    7/20/16, at] 5[.2] . . . Ultimately, the [VOP c]ourt imposed
    punishment of 2-4 years in jail. Significantly, there was no
    probationary tail to follow.3
    3
    [Appellant]’s original sentence would have terminated
    community supervision on March 18, 2022. The current
    [VOP] sentence will expire in March, 2020. This assumes, of
    course, [Appellant] serves his maximum just like he did the
    first time.
    VOP Ct. Op., 1/26/17, at 2 (footnote No. 2 omitted).         While incarcerated,
    Appellant was ordered to participate in and to complete sex offender
    treatment and to participate in a therapeutic community. Sentencing Order,
    7/20/16.
    On July 21, 2016, Appellant filed a motion to reconsider the VOP
    sentence, stating:
    The report [of the mental health evaluation] submitted to the
    [VOP] court by the Behavior Clinic clearly showed [Appellant]
    has a diagnosis of severe depression and a severe problem with
    alcohol. [Appellant] respectfully avers that this [VOP c]ourt
    improperly ignored the recommendations contained in the report
    and did not consider the required sentence factors, including but
    not limited to, the rehabilitative needs of the defendant, prior to
    imposing sentence. [Appellant] also avers that the penalty
    imposed is not commensurate to the violations.
    Mot. to Recons. Sentence, 7/21/16, at ¶ 4. Appellant’s motion was denied,
    and Appellant then filed this timely appeal, in which he raises the following
    issue, as stated in his brief:
    Is the imposition of the aggregate sentence of two (2) to four
    (4) years of incarceration following a probation violation
    manifestly excessive, unreasonable, and an abuse of the [VOP]
    court’s discretion? Specifically, does the sentence result in a
    ____________________________________________
    2
    The report is not in the certified record.
    -6-
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    manifestly excessive sentence that is wholly unreasonable and
    not in conformity to the Sentencing Code (42 Pa.C.S.
    § 9721(b)), as the [VOP] court failed to consider, as it must, the
    Appellant’s rehabilitative needs and character, and mistakenly
    found that the Appellant’s confinement was necessary to protect
    the public?
    Appellant’s Brief at 7.
    Appellant “challenges only the discretionary aspects of [his] sentence,”
    arguing that his sentence is “an abuse of the [VOP] court’s discretion.”
    Appellant’s Brief at 10-11.   Appellant contends that, “while the sentence
    imposed on [him] is a standard-range sentence . . . the punishment here
    does not fit the crime.” Id. at 23. Appellant maintains that, “[b]ecause his
    probation violations have been non-violent, incarceration is not necessary to
    protect the public.” Id. at 28. Appellant continues that, “[c]onsidering the
    remarks from the sentencing hearing in this case, and the lack of reflection
    on [Appellant]’s rehabilitative needs, it appears that [the VOP] court
    imposed a manifestly excessive and unreasonable sentence by sending
    [Appellant] to the state penitentiary for 2 to 4 additional years.” Id. at 29.
    Appellant asks this Court to vacate his judgment of sentence and to remand
    for resentencing. Id.
    The Commonwealth responds that the VOP court “did not abuse its
    discretion where it considered appropriate factors and imposed a reasonable
    sentence of 2 to 4 years’ incarceration for Appellant’s probation violations.”
    Commonwealth’s Brief at 10.      The Commonwealth notes that “Appellant
    dose not dispute that he violated the terms and conditions of his probation.”
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    J-S63030-17
    Id. The Commonwealth continues that, “A sentence of total confinement of
    Appellant’s various probation violations was essential to vindicate the
    authority of the court,” further noting that the VOP court “was free to impose
    any sentence permitted under the Sentencing Code when Appellant violated
    his probation.” Id. at 14-15.
    In Commonwealth v. Cartrette, 
    83 A.3d 1030
    , 1034 (Pa. Super.
    2013) (en banc), we held that our scope of review in an appeal from a
    revocation sentencing includes discretionary sentencing challenges. Such a
    challenge is not appealable as of right.   Commonwealth v. Luketic, 
    162 A.3d 1149
    , 1159 (Pa. Super. 2017).         We will exercise our discretion to
    consider the issue only if (1) the appellant has filed a timely notice of
    appeal; (2) he has preserved the sentencing issue at the time of sentencing
    or in a motion to reconsider and modify his sentence; (3) he presents the
    issue in a properly framed statement in his brief under Rule 2119(f) of the
    Rules of Appellate Procedure, pursuant to Commonwealth v. Tuladziecki,
    
    522 A.2d 17
     (Pa. 1987); and (4) in the words of Section 9781(b) of the
    Sentencing Code, 42 Pa.C.S. § 9781(b), “it appears that there is a
    substantial question that the sentence imposed is not appropriate under this
    chapter.” See, e.g., Commonwealth v. Haynes, 
    125 A.3d 800
    , 807 (Pa.
    Super. 2015), appeal denied, 
    140 A.3d 12
     (Pa. 2016); Commonwealth v.
    Zelinski, 
    573 A.2d 569
    , 574-75 (Pa. Super.), appeal denied, 
    593 A.2d 419
    (Pa. 1990). “A defendant presents a substantial question when he sets forth
    a plausible argument that the sentence violates a provision of the
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    Sentencing Code or is contrary to the fundamental norms of the sentencing
    process.” Luketic, 162 A.3d at 1160 (citation omitted).
    Here, Appellant filed a timely notice of appeal and a motion to
    reconsider his sentence and included a statement in his brief pursuant to
    Pa.R.A.P. 2119(f). See Mot. to Recons. Sentence, 7/21/16; Appellant’s Brief
    at 12-16; see also Tuladziecki, 522 A.2d at 17; Haynes, 125 A.3d at 807;
    Zelinski, 573 A.2d at 574-75.           However, Appellant’s motion to reconsider
    his sentence asserted only that the sentence violated Section 9721(b) of the
    Sentencing Code3 by failing to consider his rehabilitative needs.         Mot. to
    Recons. Sentence, 7/21/16, at ¶ 4.               The motion did not aver that his
    confinement was unnecessary for protection of the public.               Compare
    generally id. to Appellant’s Brief at 7, 28. He also failed to raise this claim
    at sentencing. See generally N.T., 7/20/16. Where an appellant fails to
    preserve arguments raised in support of his discretionary sentencing claims
    at sentencing or in a post-sentence motion, they are not subject to appellate
    review.    See Commonwealth v. Tejada, 
    107 A.3d 788
    , 799 (Pa. Super.
    2015), appeal denied, 
    119 A.3d 351
     (Pa. 2015). Consequently, Appellant
    failed to preserve his claim that his sentence is unnecessary to protect the
    public.   We therefore shall exercise our discretion to consider only that
    ____________________________________________
    3
    Section 9721(b) provides that the sentencing court must impose a
    sentence 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); see also Commonwealth v. Walls, 
    926 A.2d 957
    , 962 (Pa
    2007).
    -9-
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    portion of Appellant’s appeal that contends that the VOP court failed to
    consider    Appellant’s    rehabilitative      needs.   That   contention   raises   a
    substantial question for appellate review. See Commonwealth v. Baker,
    
    72 A.3d 652
    , 662 (Pa. Super. 2013), appeal denied, 
    86 A.3d 231
     (Pa.
    2014)).4
    Our standard of review follows:
    Sentencing 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 order to establish that
    the sentencing court abused its discretion, the defendant 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. The rationale behind such
    broad discretion and the concomitantly deferential standard of
    appellate review is that the sentencing court is in the best
    position to determine the proper penalty for a particular offense
    based upon an evaluation of the individual circumstances before
    it.   To determine whether the trial court made the proper
    considerations during sentencing, an appellate court must, of
    necessity, review all of the judge’s comments. As this Court has
    stated, the judge’s statement must clearly show that he has
    given individualized consideration to the character of the
    defendant. . . . [I]t is an abuse of discretion when the nature of
    the criminal act is used as the sole basis for the determination of
    the length of sentence.
    Luketic, 162 A.3d at 1162-63, 1165 (internal brackets, citations, and
    quotation marks omitted).           In the revocation context, as in sentencing
    generally, sentencing is vested in the sound discretion of the sentencing
    judge, and a sentence will not be disturbed on appeal absent a manifest
    ____________________________________________
    4
    The Commonwealth agrees that Appellant’s allegation that the VOP court
    failed to consider his rehabilitative needs raises a substantial question.
    Commonwealth’s Brief at 12-13.
    - 10 -
    J-S63030-17
    abuse of discretion.   Commonwealth v. Zirkle, 
    107 A.3d 127
    , 132 (Pa.
    Super. 2014), appeal denied, 
    117 A.3d 297
     (Pa. 2015).
    When probation is violated, the sentencing court possesses the same
    sentencing alternatives in the revocation context that it had at the time of
    initial sentencing. See 42 Pa.C.S. § 9771(b); Commonwealth v. Fish, 
    752 A.2d 921
    , 923 (Pa. Super. 2002). Where probation is ineffective as a
    rehabilitative tool, a more severe sentence, up to and including total
    incarceration, will often be warranted and appropriate. Commonwealth v.
    Sierra, 
    752 A.2d 910
    , 913 (Pa. Super. 2000); Commonwealth v. Smith,
    
    669 A.2d 1008
    , 1011 (Pa. Super. 1996). Total confinement may be imposed
    if (1) the defendant has been convicted of another crime; (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. Fish, 
    752 A.2d at
    923 (citing 42 Pa.C.S. § 9771(c)).
    After a thorough review of the record, the briefs of the parties, the
    applicable law, and the well-reasoned opinion of the Honorable Joseph K.
    Williams III, we conclude that Appellant’s claim merits no relief. The VOP
    court explained its sentence as follows:
    The length of time Clapper’s case has been in chambers allows
    the Court an enhanced level of understanding of Mr. Clapper.
    That includes the good and the bad. He has some construction
    skills that if channeled with the right motivators could allow for a
    better life. However, his addiction issues are a major impediment
    to that goal. His efforts in the real world were not successful. He
    returned to his favorite friend — alcohol — and was joined by its
    cousins — marijuana and crack cocaine. On top of those curses,
    he has struck out on sex offender treatment. Three times he
    - 11 -
    J-S63030-17
    started only to fail for various reasons. Clapper's supervision was
    terrible. No job, despite skills and a car equipped with a device
    to allow this alcoholic to drive, no payments toward fines and
    costs and a new summary conviction. When the Court looked at
    the big picture here, Clapper showed that community supervision
    was not working. For those reasons, the Court's sentence was
    imposed.
    VOP Ct. Op. , 1/26/17, at 2-3. The court’s explanation makes clear that the
    court understood that Appellant had addictions to alcohol, marijuana, and
    crack cocaine.     Id.     The court stated it had “ordered a mental health
    evaluation to be done” and reviewed it “shortly” after receiving it on June 8,
    2016, so that it understood Appellant’s psychological situation. See id. The
    court noted that Appellant had failed to complete sex offender treatment
    three times. Appellant’s “efforts in the real world were not successful” and
    “community supervision was not working,” and the court concluded that
    Appellant’s “addiction issues are a major impediment to [achieving his] goal”
    of a better life.        Id.   In the end, the VOP court demonstrated its
    understanding of Appellant’s need for rehabilitation by ordering Appellant to
    participate in and to complete sex offender treatment and to participate in a
    therapeutic community while he is incarcerated. Sentencing Order, 7/20/16.
    Thus, the VOP court did consider Appellant’s rehabilitative needs, and
    Appellant is not entitled to relief.
    Judgment of sentence affirmed.
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    J-S63030-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/30/2017
    - 13 -
    

Document Info

Docket Number: 1246 WDA 2016

Filed Date: 11/30/2017

Precedential Status: Precedential

Modified Date: 11/30/2017