Com. v. Bond, J.

Superior Court of Pennsylvania

Com. v. Bond, J.

DecidedMay 23, 2017

DocketCom. v. Bond, J. No. 1920 EDA 2015

StatusUnpublished

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Bluebook

Com. v. Bond, J., (Pa. Ct. App. 2017).

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Opinion

J-S20007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JAMES BOND

Appellant No. 1920 EDA 2015

Appeal from the Judgment of Sentence June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003467-2011

BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED MAY 23, 2017

James Bond appeals from the judgment of sentence of eleven-and-

one-half to thirty years incarceration imposed after the court found him in

violation of probation. We affirm.

In the early morning hours on March 6, 2011, Appellant perpetrated a

rash of burglaries in northeast Philadelphia. Appellant and an accomplice

entered five residential houses, four of which were occupied during the

break-in, and absconded with cash, keys, various technological devices, and

three automobiles. Later that morning, police officers, responding to reports

of the stolen automobiles, observed one suspected stolen vehicle parked on

Axe Factory Road. After determining the car was one of the reported cars, J-S20007-17

the officers spotted Appellant and his accomplice walking away from the

vehicle. Appellant attempted to flee, but was apprehended by the police.

On July 21, 2011, while Appellant awaited trial, he attempted to

burglarize another house, but, realizing that the owner was asleep on the

living room couch, left without taking any items. Nevertheless, Appellant’s

latent fingerprints were recovered from the inside of an unlocked front

window. Later that same day, Appellant entered another home while the

owner slept inside. Appellant removed a laptop, a ring, cash and credit

cards, and a Volkswagen Jetta. Appellant’s fingerprints were also discovered

at this location.

On December 15, 2011, Appellant entered into an open guilty plea to

thirteen counts, including convictions for burglary, attempted burglary,

conspiracy, and unauthorized use of a motor vehicle.1 The court imposed a

sentence of eleven-and-one-half to twenty three months incarceration plus

132 months probation. While serving his probationary sentence, Appellant

was arrested for forcible rape of a minor and related charges. On

September 30, 2014, he pled guilty to one count of aggravated assault

stemming from those charges and received a sentence of three to six years

imprisonment. ____________________________________________

1 The sentencing court later amended one of Appellant’s attempted burglary convictions to a conspiracy to commit trespass. N.T. Sentencing, 12/15/11, at 32.

-2- J-S20007-17

As a result of Appellant’s conviction for another crime, the court herein

held hearings pursuant to Gagnon v. Scarpelli, 411 U.S. 778 (1973), and

found that Appellant had violated his probation. The court revoked

Appellant’s probation, but withheld sentencing for the production of a

presentence report. The court received that report, and on February 20,

2015, it sentenced Appellant to an aggregate sentence of twelve to thirty

years incarceration plus five years probation.2 Appellant filed a motion for

reconsideration requesting that the court run his sentence at each count

concurrently so that he could seek treatment in a mental health facility.

Following a hearing on June 6, 2015, the court granted Appellant’s

motion for reconsideration and imposed an aggregate sentence of eleven-

and-one-half to thirty years imprisonment. Appellant filed a timely notice of

appeal, and complied with the court’s order to file a Rule 1925(b) concise

statement of errors complained of on appeal. The court then authored its

Rule 1925(a) opinion. This matter is now ready for our review.

Appellant raises a single issue for our consideration: “Whether the

court’s sentence of 11½ to 30 years incarceration violated Pa.C.S. §

9721(b), constituting an abuse of discretion?” Appellant’s brief at 3.

____________________________________________

2 The notes of testimony for the February 20, 2015 sentencing hearing were not transcribed.

-3- J-S20007-17

In an appeal from a sentence imposed after the court has revoked

probation, our review is limited to “the validity of the revocation

proceedings, the legality of sentence imposed following revocation, and any

challenge to the discretionary aspects of the sentence imposed.”

Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.Super. 2015).

Appellant raises a challenge to the discretionary aspects of his

sentence. Our standard of review is as follows: “[s]entencing 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.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted). Further, “the right to appellate review of the discretionary aspects

of a sentence is not absolute, and must be considered as a petition for

permission to appeal.” Id. In order to invoke this Court’s jurisdiction:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal; (2) whether the issues were properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the sentence appeal from is not appropriate under the Sentencing Code.

Id.

Instantly, Appellant filed a timely notice of appeal and a timely motion

for reconsideration of his sentence. Appellant’s motion for reconsideration

requested that the court impose his sentence concurrently due to his mental

health issues. Essentially, this motion argued that the court erred by

-4- J-S20007-17

imposing an excessive sentence without considering Appellant’s mental

health needs. Appellant’s Rule 1925(b) statement raised two contentions.

First, he asserted that the sentence was excessive under the circumstances,

and second, that it was manifestly unreasonable under the circumstances.

Rule 1925(b) Concise Statement of Errors Complained of on Appeal,

7/13/15, at unnumbered 1.

Additionally, Appellant appended a Rule 2119(f) concise statement of

reasons relied upon for allowance of appeal alleging that the trial court failed

to consider the particular circumstances of the offense and Appellant’s

character pursuant to 42 Pa.C.S. § 9721(b). That section reads, in pertinent

part:

(b) General standards.—In selecting from the alternatives set forth in subsection (a), the court shall follow the general principle that the sentence imposed should call for confinement 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 . . . In every case in which 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.

42 Pa.C.S. § 9721(b). Particularly, he argues that the sentence imposed

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