Com. v. Ball, O.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

OTIS BALL :

:

Appellant : No. 1810 EDA 2017

Appeal from the Judgment of Sentence October 4, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000403-2014, CP-51-CR-0001571-2011, CP-51-CR-0015013-2010

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 24, 2018

Appellant Otis Ball appeals from the judgment of sentence following his

guilty plea to conspiracy and possession with intent to deliver (PWID),1 which

were violations of his probation, for which he was also sentenced at the same

sentencing hearing. Appellant asserts that the trial court erred by ignoring

mitigating factors and failing to apply an individualized sentence. We affirm.

The trial court summarized the relevant facts of this matter as follows:

On March 1, 2011, [Appellant] pled guilty before [the trial court] to [PWID] on docket CP-51-CR-0015013-2010 and docket CP-51- CR-0001571-2011. At that time, [the trial court] sentenced [Appellant] to eleven and one[-]half (11½) to twenty-three [(23)] months of confinement on docket CP-51-CR-0015013-2010 and five years of probation on docket CP-51-CR-0001571-2011.

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

On January 3, 2012, while on [probation, Appellee] was arrested and charged with PWID [at docket CP-51-CR-0006254-2012, which is not at issue in this appeal.] On October 2, 2013, at approximately 3:20 in the afternoon, the Narcotics Field Unit of the Philadelphia Police Department received a call that cleaning personnel at a Ramada Inn [in Philadelphia] had discovered a clear bag of bulk marijuana and a clear bag of dozens of Percocet tablets in room 209 of the hotel. The Narcotics Field Unit set up surveillance of the room and at approximately 4:10 pm, a tan Chevrolet Malibu pulled into the parking lot of the hotel. Two males, one of them later identified as [Appellant] and another later identified as Raymond Davis, got out of the car, entered the hotel, and went to room 209. Davis unlocked the door with a keycard and both men entered the room. Approximately a minute later[, Appellant] left the room and went back to the Malibu, opening the trunk and retrieving a white bag from it before closing the trunk again. [Appellant] returned to room 209 and entered it, and then officers gathered outside the room. [Appellant] opened the door again and both he and Davis were secured. After a search and seizure warrant was executed at approximately 8:50 pm, police recovered one baggie containing fifteen (15) grams of marijuana and another ba[g] containing one-hundred-eighteen (118) Percocet tables in the room. The white bag brought in by [Appellant] contained $5000 bundled in increments of $1000. $1520 was recovered from [Appellant’s] person and $16 was recovered from Davis. Police also recovered two boxes of new and unused sandwich baggies and a digital scale in the room. A search warrant was executed on the Malibu in the parking lot with negative results.

On October 7, 2015, [Appellant] pled guilty . . . to PWID and [c]onspiracy on docket CP-51-CR-0000403-2014. On October 4, 2016, [the trial court] sentenced [Appellant] to four (4) to eight (8) years[’] confinement followed by two (2) years’ probation for PWID, and ten (10) years of probation for [c]onspiracy. [The trial court] also found [Appellant] to be in direct violation of its probation for dockets CP-51-CR-0015013-2010 and CP-51-CR- 0001571-2011. [The trial court] revoked [Appellant’s] probation and imposed a sentence of four (4) to eight (8) years[’] confinement on docket CP-51-CR-0015013-2010 and four (4) to eight (8) years[’] confinement followed by two (2) years’ probation on docket CP-51-CR-0001571-2011. [The trial court] ordered all sentences to run concurrently, for an aggregate

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sentence of four (4) to eight (8) years of confinement, followed by ten (10) years of probation.

Trial Ct. Op., 1/10/18, at 1-3.

At sentencing, the trial court informed Appellant that he had “[t]en days

to ask me to modify, [thirty] days to take an appeal.” N.T., 10/4/16, at 11.

The trial court did not specify that in the context of sentencing for violations

of probation that the motion to modify did not toll the thirty-day appeal period.

See Pa.R.Crim.P. 708(E). Thereafter, on October 14, 2016, Appellant filed a

separate motion for reconsideration of sentence at each of the three dockets

on which he was sentenced, asserting that he was not credited for his

acceptance of responsibility and for entering guilty pleas. Appellant also

argued in his motions for reconsideration that the court employed inapt

sentencing guidelines and improperly denied him RRRI eligibility. On May 8,

2017, the trial court denied Appellant’s motions.

Appellant filed a timely notice of appeal on June 7, 2017.2 On June 21,

2017, the trial court issued an order pursuant to Pa.R.A.P. 1925(b), requiring

Appellant to file a concise statement of matters complained of on appeal. On

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2Appellant filed one notice of appeal regarding each of the three dockets under which he was sentenced on October 4, 2016. Because this single notice of appeal for multiple dockets was filed before June 1, 2018, we will not quash this appeal. See Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding that for notices of appeal filed after June 1, 2018, “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case”).

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July 6, 2017, Appellant filed a timely concise statement, in which he reiterated

the issues included in his post-sentence motion.

Appellant also requested leave to file a supplemental concise statement

upon receipt of all relevant notes of testimony. The trial court granted that

request on July 12, 2017. On December 11, 2017, once the transcripts were

available, the trial court issued a second Rule 1925(b) order. On January 3,

2018, the trial court received a letter from Appellant dated December 27,

2017, indicating that he did not wish to file a supplemental statement.

Appellant raises the following question for our review: “Did the trial

court err, both as a matter of law and an abuse of discretion, when it ignored

all mitigating evidence and applied a rote sentencing formula rather than

individualized sentencing?” Appellant’s Brief at 6.

In support of his issue raised on appeal, Appellant argues that the trial

court “failed to address [A]ppellant’s age, family needs, three years without

criminal conduct, prior mental health and substance abuse issues, and support

network and instead sentenced reflexively because of recidivism.” Id. at 14.

As an initial matter, we note that Appellant’s notice of appeal was

untimely as to his two violation of probation sentences. See Pa.R.Crim.P.

708(E) (“A motion to modify a sentence imposed after a revocation shall be

filed within 10 days of the date of imposition. The filing of a motion to modify

sentence will not toll the 30-day appeal period.”); see also Commonwealth

v. Coleman, 721 A.2d 798, 799 (Pa. Super. 1998). However, we decline to

find the challenge to these sentences waived because of a “breakdown in the

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court’s operation,” since the trial court did not advise Appellant that filing a

motion to modify would not toll the appeal period regarding his violation of

probation sentences. Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa.

Super. 2003) (declining to quash an appeal where the trial court misstated

the appeal period, which was a breakdown in court operations).

Nevertheless, Appellant has waived his issue that he was not afforded

individualized sentencing based on certain mitigating factors since he raised

it for the first time on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

Indeed, the issues Appellant raised in his post-sentence motion and concise

statement include that he was not credited for his acceptance of responsibility

and entering guilty pleas, the trial court employed inapt sentencing guidelines,

and the trial court improperly denied him RRRI eligibility. However, these

issues have been abandoned on appeal, as Appellant merely argues in his

appellate brief that he was not afforded individualized sentencing based on

certain other mitigating factors.3 As the issue in Appellant’s brief was not

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3 We note the Pennsylvania Supreme Court’s decision in Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), which states that “the filing of an appellate brief which abandons all preserved issues in favor of unpreserved ones constitutes ineffective assistance of counsel per se.” Id. at 434. However, typically, “claims of ineffective assistance of counsel are to be deferred to PCRA review.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). Here, counsel’s abandonment of the issues in the post-sentence motion and concise statement in favor of the unpreserved individualized sentencing issue raised in Appellant’s brief might constitute ineffective assistance of counsel. See Rosado, 150 A.3d at 434. Nevertheless, to obtain relief, Appellant must raise this claim in a timely filed PCRA petition under the rubric of ineffective assistance of counsel. See Holmes, 79 A.3d at 576.

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preserved in a post-sentence motion, it is waived. See Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) (requiring discretionary

aspects of sentencing issues to be preserved in the trial court to be considered

on appeal).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/18