Com. v. Gall, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES ANTHONY GALL, JR. :
:
Appellant : No. 866 WDA 2021
Appeal from the Judgment of Sentence Entered June 28, 2021
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000321-2011
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 21, 2022
James Anthony Gall, Jr. (Gall) appeals from the June 28, 2021 judgment
of sentence imposed by the Court of Common Pleas of Butler County (trial
court) following the revocation of his probation for three counts of indecent
assault of a child and one count each of endangering the welfare of a child
(EWOC) and corruption of minors.1 We affirm.
I.
We glean the following facts from the certified record. In December
2012, Gall entered an open guilty plea to the above-mentioned charges based
on allegations that he had molested his 11-year-old stepdaughter. The trial
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3126(a)(7), 4304(a)(1) & 6301(a)(1).
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court sentenced him to 1 to 2 years’ incarceration for each count of indecent
assault of a child and EWOC and 6 to 12 months’ incarceration for corruption
of minors. It imposed 5 years’ probation for each count of indecent assault of
a child. The sentences were consecutive for an aggregate sentence of 54 to
108 months’ incarceration, followed by 180 months of probation.
Gall served his maximum term of imprisonment before he was released
in July 2020. In March 2021, Agent Gary Double (Agent Double) of the
Pennsylvania Board of Probation and Parole (PBPP) filed a violation report
alleging that Gall had violated terms of his probation by failing to report his
telephone numbers and for failing to comply with his sex offender counseling.
Gall proceeded to a Gagnon II2 hearing on May 7, 2021, at which Agent
Double and Julie Lindemuth (Lindemuth), Gall’s counselor, testified regarding
the violation. Agent Double testified that he had difficulty communicating with
Gall throughout his supervision because the telephone numbers Gall provided
would not work or he did not have an active number.
In October 2020, Lindemuth reported to Agent Double that she was
unable to treat Gall because he told her he was filing a Post-Conviction Relief
Act (PCRA)3 petition and his attorney had advised him not to say anything that
might harm his case. Agent Double scheduled a meeting with Gall to discuss
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 42 Pa.C.S. §§ 9541 et seq.
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the petition and said that Gall brought an old, half-filled-out form petition. It
had not been filed and did not have an attorney’s name on it. Agent Double’s
supervisor determined that Gall was required to comply with counseling unless
he obtained a court order exempting him from doing so.
In January 2021, Lindemuth told Agent Double again that Gall had not
been attending treatment and that she would have to discharge him if he
missed his next appointment. Agent Double hand-delivered a letter conveying
this information to Gall because he did not have a telephone number to reach
him. While at Gall’s apartment, Agent Double observed three cell phones.
One phone had text messages and pornographic images on it, which was a
violation of the special conditions of his probation. All three phones had Gall’s
name in the settings and some had photos of Gall or of his driver’s license.
Agent Double took the phones into evidence and, after consulting with a
supervisor, placed Gall on GPS monitoring with a strict curfew. Gall violated
curfew on at least one occasion and did not keep the monitoring device
properly charged.
A few weeks later, Agent Double searched Gall’s apartment after
receiving a report that Gall had another cell phone and prohibited
pornographic materials. He found one broken and one functional cell phone,
pornographic books and films, and a children’s book with pornographic images
pasted inside. Gall had not reported the new cell phone number to Agent
Double. At that time, Gall was arrested and detained.
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Lindemuth testified that she began treating Gall by phone in October
2020 after he missed their first appointment in September. She informed him
that he could not miss appointments, have contact with minors, use
pornography or access the internet without a computer-monitoring system.
At the second appointment, Gall said he could not discuss his offenses because
he had filed a PCRA petition. Lindemuth ended the session early because she
could not treat Gall without speaking about his offenses.
After Gall was instructed by PBPP to continue counseling, Lindemuth
struggled to reach him to schedule sessions because he did not have a direct
phone number. In January 2021, she mailed him a letter scheduling an
appointment for the following month. Gall then participated in two treatment
sessions by phone in February 2021 and was cooperative and polite. At the
second session, Lindemuth asked Gall about the pornography that Agent
Double had found on the cell phones in his home. She told him it was common
for people to struggle with pornography when beginning treatment and that
she needed him to address it honestly. Gall repeatedly denied that the phones
were his or that he had any knowledge of the images on them. Lindemuth
told him that he had one opportunity to be truthful, and that if more
pornography was found in his possession, he would be discharged.
Lindemuth had to cancel her next appointment with Gall due to illness,
and by the time of the following appointment, Gall had been arrested for
violating probation. Agent Double informed Lindemuth about the items found
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in Gall’s apartment and she discharged him from treatment. She testified that
if Gall had admitted he was struggling after the first lapse, she would have
continued with treatment to address those feelings.
Gall testified that he was difficult to contact because his phone rejected
private phone numbers and he did not know how to fix that issue. He said
that his mental health deteriorated between his release and January 2021
because he was not on medication. He said that he relied on friends’ phones
much of the time, and that he did not look through the phones because they
did not belong to him. He said one of the phones seized by Agent Double
belonged to a friend who was charging it at his apartment and that other
friends had given him phones to repair. He said the pornographic books,
including the children’s book, were items he brought home from prison but
did not use. He said his current mental health medications were effective and
that he would comply with treatment if released.
At the conclusion of the hearing, the trial court found Gall in violation of
his probation and deferred sentencing. At sentencing, Gall once again testified
and said that he had identified a new sex offender counselor with an office in
Butler. He said that she offered phone and in-person treatment, and he would
be able to walk to appointments without relying on anyone for a phone or
transport. He had not spoken directly with the counselor.
Gall’s counsel argued for a sentence of time served and continued
probation because he had been cooperative at some of the counseling sessions
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and had only struggled to attend sessions because he could not afford his own
phone. He said Gall suffered from ADHD, anxiety and depression and
struggled to maintain focus on his counseling obligations when he was not
properly medicated. He pointed out that Gall had only committed a technical
violation and it was his first violation. He was able to work and had planned
to start working for a newspaper before he was arrested.
The Commonwealth argued based on the testimony from the Gagnon
II hearing that Gall had never complied with the terms of his probation and
was detained less than a year after his release from prison. It pointed out
that Gall had multiple phones, and that the information found on those phones
indicated that they belonged to him. It argued that the phone problems were
fabricated to avoid treatment, he could easily attend treatment by phone, and
he had lied to Lindemuth about using pornography and filing a PCRA petition.
It also pointed out that Gall had not complied with GPS monitoring and
possessed multiple pornographic items, including the children’s book with
photos pasted inside. It asked that Gall be sentenced to incarceration.
Gall spoke once again and said that he had accidentally let his GPS
monitoring device run out of charge because he did not realize the charging
device was not properly plugged in. He said that his mental health
medications were effective beginning in 2021, and he was better able to focus
and could comply with treatment. Finally, he indicated that he was still
pursuing a PCRA petition and seeking counsel for that filing.
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Without objection, the trial court reviewed the presentence investigation
report (PSI) filed prior to Gall’s initial sentencing in 2012. It noted that he
had 20 adult arrests and convictions and no employment history. He was
treated for depression and bipolar disorder. The trial court indicated that it
also considered the testimony from the violation hearings, the case file and
the procedural history of the case, and believed that total confinement was
necessary. Accordingly, it revoked the 60 months of probation at one count
of indecent assault of a child and resentenced Gall to 24 to 60 months of
confinement. The sentences of probation at the other two counts remained
intact for an aggregate sentence of 24 to 60 months’ incarceration followed
by 120 months of probation. Gall timely appealed and he and the trial court
have complied with Pa. R.A.P. 1925.
II.
A.
First, Gall challenges the sufficiency of the evidence to revoke his
probation.4 He argues that the Commonwealth failed to establish that he
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4 “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. Giliam, 233 A.3d 863, 866-67 (Pa. Super. 2020) (citation
omitted). Whether the Commonwealth has presented sufficient evidence to
establish that the defendant violated a specific term of probation is a question
of law and we view all evidence in the light most favorable to the
Commonwealth as the verdict winner. Commonwealth v. Koger, 255 A.3d
1285, 1289 (Pa. Super. 2021).
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violated a specific term of his probation because the trial court did not advise
him of any conditions at his original sentencing in 2012. He contends that
because the trial court did not impose any specific conditions at his sentencing
hearing, the revocation of his probation was in violation of our Supreme
Court’s decision in Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019).
Initially, we note that
Unlike a criminal trial where the burden is upon the
Commonwealth to establish all of the requisite elements of the
offenses charged beyond a reasonable doubt, at a revocation
hearing the Commonwealth need only prove a violation of
probation by a preponderance of the evidence. As our Supreme
Court has explained, preponderance of the evidence is a more
likely than not inquiry, supported by the greater weight of the
evidence; something a reasonable person would accept as
sufficient to support a decision.
Commonwealth v. Parson, 259 A.3d 1012, 1019 (Pa. Super. 2021) (cleaned
up).
In Foster, the trial court revoked the defendant’s probation after the
Commonwealth presented evidence that he had posted photos on social media
depicting guns, drugs, cash and the sentencing order from his case with
captions lamenting that he “[c]ouldn’t beat the case.” Id. at 1243-45.
Without finding that the defendant had committed a new crime, the trial court
revoked probation, reasoning that the images demonstrated that he was not
amenable to rehabilitation and that probation was ineffective to deter future
criminal conduct.
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Our Supreme Court reversed, holding that a trial court may revoke
probation only after finding by a preponderance of the evidence that the
defendant violated a specific condition of probation. Id. at 1250 (citing 42
Pa.C.S. § 9771(b)). The trial court must specify the conditions that apply to
probation at sentencing. Id. at 1249 (citing 42 Pa.C.S. § 9754(b) (“The court
shall attach reasonable conditions . . . as it deems necessary to ensure or
assist the defendant in leading a law-abiding life.”)). A finding that the
defendant was unamenable to rehabilitation, untethered to a violation of a
specific condition of probation, is insufficient to support revocation. Id. at
1250. Under these statutes, “a sentencing court may not delegate its
statutorily proscribed duties to probation and parole offices and is required to
communicate any conditions of probation or parole as a prerequisite to
violating any such condition.” Commonwealth v. Koger, 255 A.3d 1285,
1291 (Pa. Super. 2021).
Our review of the record confirms that the trial court did not impose any
specific conditions of probation on the record at Gall’s initial sentencing
hearing in 2012. However, the written sentencing order which was docketed
that same day included the following language: “Defendant is to be placed on
probation for a period of 60 months on cts 31, 32, 33 consecutive – 180
months with the State Probation Board and must attend any counseling as
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directed by probation officer.” Sentence, 12/5/2012, at unnumbered 2.5 The
order was served on Gall’s attorney the following day.
Thus, contrary to Gall’s assertions, he was informed at his initial
sentencing that cooperation with counseling was a condition of his probation.
The sentencing order, with the enumerated conditions, complies with 42
Pa.C.S. § 9754(b)’s mandate that the trial court attach specific conditions of
probation to a probation order.6 Because he was advised that he was required
to comply with this condition, Foster and Koger are inapposite and he is
entitled to no relief.7
B.
Next, we address Gall’s challenges to the discretionary aspects of his
sentence.8 First, Gall contends the trial court abused its discretion by failing
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5 The underlined portions were handwritten onto the form probation order.
6In its opinion, the trial court agreed with Gall that it did not impose specific
conditions at the time of the initial sentencing hearing. Trial Court Opinion,
8/17/21, at 3. It did not acknowledge that the written sentencing order
docketed that same day included the specific condition of probation Gall was
charged with violating. Nevertheless, we may affirm the trial court’s order on
any basis apparent from the record. Commonwealth v. Clouser, 998 A.2d
656, 661 n.3 (Pa. Super. 2010).
7 Gall does not challenge the trial court’s factual determination that he failed
to comply with sex offender counseling.
8 Our standard of review is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
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to consider all required sentencing factors under 42 Pa.C.S. § 9721(b),
resulting in a manifestly unreasonable and disproportionate sentence. He
claims that the trial court further abused its discretion by failing to order a
new PSI when nine years had passed since the preparation of the report for
his initial sentencing hearing. Finally, he contends the trial court abused its
discretion in resentencing him to total confinement for technical probation
violations without meeting the requirements of 42 Pa.C.S. § 9771(c).
Before we may address the merits of his claims, we must determine
whether Gall has properly invoked this Court’s jurisdiction. “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. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation
omitted). An appellant must preserve his claims at the time of sentencing or
in a post-sentence motion, file a timely notice of appeal, include a statement
of reasons for allowance of appeal pursuant to Pa. R.A.P. 2119(f) in his brief,
and raise a substantial question for review. Id. Accordingly, “[o]bjections to
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absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an 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. Wallace, 244 A.3d 1261, 1278–79 (Pa. Super. 2021)
(citation omitted).
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the discretionary aspects of a sentence are generally waived if they are not
raised at the sentencing hearing or in a motion to modify the sentence
imposed.” Commonwealth v. Bradley, 232 A.3d 1131, 1138 (Pa. Super.
2020); see also Pa. R.A.P. 302(a).
As the trial court and Commonwealth have pointed out, Gall did not
preserve his claims by filing a post-sentence motion. Trial Court Opinion,
8/17/21, at 7; Commonwealth’s Brief at 8-9. Moreover, Gall did not request
a new PSI prior to resentencing or object to the trial court’s reliance on the
2012 PSI. In his brief, Gall asserts that he preserved his sentencing claims
“at sentencing when defense counsel did not acquiesce to the
Commonwealth’s recommendation of a state prison sentence and instead,
argued for a period of probation.” Gall’s Brief at 31.
Our review of the transcript of the sentencing hearing reveals that Gall
did not raise the claims he presents on appeal at that time. While he did argue
for a period of probation before the trial court imposed the sentence, he did
not argue after the trial court placed its reasons for the sentence on the record
that it had failed to consider required sentencing factors, relied on a stale PSI,
imposed a manifestly excessive or unreasonable sentence or did not meet the
statutory requirements for a sentence of total confinement. Because he failed
to present these claims at the sentencing hearing or in a post-sentence
motion, the trial court had no opportunity to reconsider the sentence based
on those arguments. Accordingly, they are waived.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2022
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