Com. v. Alston, S.

• Court: Superior Court of Pennsylvania
• Decided: April 9, 2018
• Docket: 1636 EDA 2017
• Status: Unpublished

Opinion

J-S17038-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SHIREE ALSTON,

Appellant No. 1636 EDA 2017

Appeal from the Judgment of Sentence entered March 23, 2017, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0002993-2014.

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.,

MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 09, 2018

Shiree Alston files this appeal challenging the discretionary aspects of

his sentence imposed following the revocation of his probation and parole.

Because we determine that Alston did not preserve his sentencing claim in

the trial court, we deny his petition for allowance of appeal, and affirm his

judgment of sentence.

The trial court summarized the pertinent facts, which led to Alston’s

original charges, as follows:

The underlying offenses stem from [Alston’s] arrest on October 10, 2013 for participating with other individuals in the repeated sales of illegal narcotics including crack cocaine, barbiturates in the form of hydrocodone pills, marijuana and phencyclidine, commonly known as PCP. These sales were made to undercover police officers and confidential informants from the adjoining first floor apartments located on the 1600 block of Foulkrod Street in Northeast Philadelphia. When police officers served the J-S17038-18

corresponding approved Search and Seizure Warrants, [Alston] attempted to flee the premises that he had been living with his girlfriend, who was charged as a co- conspirator, and their two minor children ages 3 years and 5 months old respectively.

After fleeing, [Alston] was intercepted in flight carrying a large green diaper bag filled with diapers, large and varied amounts of illegal narcotics, his identification, a loaded ready to fire operable firearm and male shirts. Following entry into the residence and apprehension, Officers recovered significant amounts of illegal narcotics including bulk cocaine, crack cocaine, barbiturates in the form of hydrocodone pills, marijuana and phencyclidine, commonly known as PCP and drug paraphernalia.

Additional varied forms of narcotics, razors and grinders were also removed from the same bedroom of the apartment where the children had been huddled. Those toxic items had been located out in the open within arm’s length of the children. Both children were immediately removed from this dangerous and filthy environment deemed unfit for habitation.

Trial Court Opinion, 8/1/17, at 1-2.

On September 2, 2015, the trial court accepted Alston’s guilty plea to

possession with intent to deliver, conspiracy, endangering the welfare of

children, and possession of an instrument of crime.1 The trial court

described its original sentencing scheme as follows:

After, [Alston’s] tendered guilty plea was accepted, [Alston] waived the preparation of any presentence evaluation. After considering all relevant information presented, this Court entered an Order of Sentence [sic] that essentially mercifully granted [Alston] immediate ____________________________________________

1 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. §§ 903, 4304, and 907, respectively.

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parole by applying the time credit for pre-trial custodial confinement. Influencing mitigating factors were considered by including [Alston’s] apparent acceptance into the early release program promoted by the Mayor’s Office For Reintegration Services, also known as the “R.I.S.E.” program, that would enable [Alston] to work while under the court’s supervision. At the time of the sentence, this Court duly cautioned [Alston], however, that he would face severe penalties for any noncompliance with the terms of the Order of Sentence particularly because he was receiving a reduced sentence with immediate parole.

Trial Court Opinion, 8/1/17, at 3.

The trial court imposed several conditions upon Alston’s release on

parole, including regularly reporting to the county parole and probation

department, submitting to random drug and alcohol screening and random

home and vehicle checks for drugs and weapons. See id. In addition, the

trial court ordered Alston to seek employment, attend educational or

vocational training and complete at least twenty hours of parenting classes.

Id.

The trial court then described Alston’s conduct following his immediate

release on parole as follows:

Then on January 13, 2017, credible testimony was presented to this Court concerning [Alston’s] repeated violations of the terms of probation and parole supervision which began just three months following the entry of the Order of Sentence. Those violations summarily included four separate testing with positive results reflecting [Alston’s] intentional ingestion of illegal narcotic substances, repeated nonappearances during home visits by the probation department, failure to complete [the] recommended drug treatment program, avoidance of contact with probation officers and non-reporting of change of residence.

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Id. at 4. After an evidentiary hearing, the trial court revoked Alston’s

probation and parole. On March 23, 2017, the trial court imposed an

aggregate sentence of three to six years of incarceration, to be followed by a

seven-year probationary term. This timely appeal follows the denial of

Alston’s petition for reconsideration of sentence.

As noted above, Alston challenges the discretionary aspects of his

sentence. “A challenge to the discretionary aspects of sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371

(Pa. Super. 2012) (en banc) (citation omitted). Before we may consider the

merits of the underlying sentencing claims, the petitioner “must invoke this

Court’s jurisdiction by satisfying a four-part test.” Commonwealth v.

Moury, 992 A.2d 162 (Pa. Super. 2010). First, the petition for allowance of

appeal must have been filed within thirty days of the judgment of sentence

or denial of reconsideration under Pennsylvania Rules of Appellate Procedure

902 and 903. Second, the petitioner must have properly preserved the

issues for appeal by having raised them at the time of sentencing or in a

Pennsylvania Rule of Criminal Procedure 720 post-sentence motion. Third,

Pennsylvania Rule of Appellate Procedure 2119(f) requires a concise

statement in the petitioner’s brief to justify the allowance of appeal.2 And,

____________________________________________

2 See Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987).

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fourth, the Rule 2119(f) statement must present “a substantial question that

the sentence imposed is not appropriate under” the Sentencing Code. Id.

(citation omitted). “Only if the appeal satisfies these requirements may we

proceed to decide the substantive merits of Appellant’s claim.”

Commonwealth v. Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017).

Alston timely filed his notice of appeal following the trial court’s denial

of his post-sentence motion, and has filed a Rule 2119(f) statement in which

he asserts that his excessiveness claim raises a substantial question. 3 Upon

review, however, we are unable to reach the merits of this appeal, because

Alston did not satisfy the second prong of the procedural test.

Alston framed the issue in his appellate brief as follows:

Was not the sentence of three (3) to six (6) years [of] incarceration followed by seven (7) years of reporting probation for technical violations of probation manifestly excessive, unreasonable, and disproportionate to the conduct at issue, and not in conformity with the requirements of the Sentencing Code?

Alston’s Brief at 4.

He raised no such alleged error at his sentencing hearing. As defense

counsel put it at the time, “I understand it’s the Court’s sentence today and ____________________________________________

3 In a six-page brief devoid of case law or statutory citations, the Commonwealth avers that it is “not opposed” to a remand for resentencing because, in its opinion, due to “the relatively minor nature of [his] probation violations, and because [Alston] completed parenting and reintegration programs, the sentence does appear to be excessive.” Commonwealth’s Brief at 6.

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I’m not asking the Court for anything different. I will likely file a motion to

reconsider once I’ve had time to digest it.” N.T., 3/23/17, at 22.

And the only issue raised in his motion to reconsider was “[Alston]

requests this Court to reconsider it’s [sic] sentence and to structure it so

that Petitioner is able to enroll in boot camp within the next six months.”

3/28/17 Petition for Reconsideration of Sentence at 2.

Here, by contrast, Alston claims that the trial court imposed a

manifestly excessive, unreasonable, and disproportionate sentence in light of

the underlying probation and parole violations. This claim differs from the

only argument that Alston made in his post-sentence motion to the trial

court. Indeed, the request for access to the boot camp is totally absent

from the issue that Alston would raise before us, were we to grant him an

allowance of appeal. Instead, he seeks our permission to attack the

sentence as a whole relative to his conduct after being released on parole.

Thus, we find that Alston did not afford the trial court an opportunity

to address whether the sentence it imposed was excessive, unreasonable, or

disproportionate, relative to the nature of his probation and parole

violations, in the first instance. He would, therefore, improperly raising that

issue “for the first time on appeal.” Commonwealth v. Foster, 960 A.2d

160, 163 (quoting Pennsylvania Rule of Appellate Procedure 302(a)). This

we cannot allow. Id. We note, however, that if we allowed it, Alston’s

appeal would still fail. A trial judge has great discretion in fashioning a

sentence following a violation of probation, and that court’s decision will not

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be disturbed on appeal in the absence of an error of law or an abuse of

discretion. Commonwealth v. Pasture, 107 A.3d 21 (Pa.2014) 42 Pa.C.S.

§ 9771(b). In a revocation proceeding, the trial court may even impose a

lengthier sentence than the original sentence, so long as it is within the

maximum sentence that the court could have imposed at the original

sentencing hearing. Pasture at 27-29.

In Pasture, the defendant’s original charges of aggravated indecent

assault and corruption of minors were related to his drug use. He began

using drugs again while on probation. The defendant failed to follow the

terms of probation imposed upon him, and at the revocation hearing, the

court imposed a much longer sentence. The same is true of Alston. Alston’s

original charges were drug related. He originally received a lenient sentence

and he was warned that “he would face severe penalties for any

noncompliance” with the terms of his probation. Trial Court Opinion 8/1/17

at 3. Because Alston failed to comply with the terms imposed upon him, at

the revocation of probation hearing, the trial court imposed a lengthier

sentence that was within the statutory bonds of his original charges. That

was a risk Alston took when he chose to violate the terms of his probation.

Thus, were we to allow his appeal, we would find no abuse of discretion or

error of law on the part of the trial judge.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/9/18

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