Com. v. Folkes, H.

• Court: Superior Court of Pennsylvania
• Decided: May 4, 2017
• Docket: Com. v. Folkes, H. No. 1237 MDA 2016
• Status: Unpublished

Opinion

J. S26028/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : HASSAN BURGESS FOLKES, : : APPELLANT : : No. 1237 MDA 2016

Appeal from the Judgment of Sentence June 27, 2016 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001156-2015 CP-36-CR-0005789-2014

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.: FILED MAY 04, 2017

Appellant, Hassan Burgess Folkes, appeals from the Judgment of

Sentence of 2 to 5 years’ incarceration imposed following the revocation of

his probation. After careful review, we affirm.

The relevant facts and procedural history, as gleaned from the

Certified Record, are as follows. On May 22, 2015, Appellant entered a

guilty plea to Possession with Intent to Deliver and Possession of a

Controlled Substance (Heroin)1 at each of two criminal docket numbers.

Pursuant to a negotiated plea agreement, the court sentenced Appellant to

* Former Justice specially assigned to the Superior Court. 1 35 P.S. § 7800-113(a)(30) and 35 P.S. § 780-113(a)(16), respectively. J. S26028/17

two concurrent sentences of time-served to 23 months’ incarceration,

followed by 2 years’ probation.

On August 4, 2015, Appellant failed to report to a scheduled probation

appointment. In investigating Appellant’s failure to report, the probation

department learned that Appellant had provided false addresses.

Accordingly, the court issued a bench warrant for Appellant’s arrest on

August 7, 2015.

Police arrested Appellant on March 16, 2016. On April 18, 2016,

Appellant appeared before the trial court for a parole violation hearing, at

which he admitted to violating his parole, and represented to the court that

he had voluntarily surrendered to police.

Following his parole violation hearing, the court found Appellant in

violation of his supervision, ordered a Presentence Investigation (“PSI”)

Report, and directed that Parole Services verify whether Appellant had, in

fact, voluntarily turned himself in.

On June 27, 2016, the court held Appellant’s sentencing hearing. At

the hearing, the Commonwealth informed the court that Appellant had not

voluntarily surrendered to police; rather, that the Susquehanna Regional

Police Department had arrested him seven months after he had disappeared,

after finding him sleeping in an illegally-occupied apartment.

In addition, the PSI report revealed that in the 15 years prior to his

original plea on these charges, Appellant had been convicted of charges

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relating to the sale of illegal drugs, as well as theft crimes, resisting arrest,

and simple assault. Over the years, Appellant had been convicted of at least

25 felonies and misdemeanors.

Following the hearing, the court sentenced Appellant to 2 to 5 years’

incarceration with time-served credit from March 4, 2016 until the date of

sentencing.

On July 7, 2016, Appellant filed a Post-Sentence Motion, in which he

argued that his sentence was excessive for a first technical violation of

parole and that the court failed to consider mitigating circumstances in

sentencing him. The trial court denied Appellant’s Motion on July 11, 2016.

Appellant filed a timely appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Was the trial court’s sentence of two (2) to five (5) years of incarceration manifestly excessive under the circumstances so as to constitute an abuse of discretion.

Appellant’s Brief at 5.

“Generally, in reviewing an appeal from a judgment of sentence

imposed after the revocation of probation, this Court’s scope of review

includes the validity of the hearing, the legality of the final sentence, and if

properly raised, the discretionary aspects of the appellant’s sentence.”

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010) (citing

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)).

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Appellant claims on appeal that his revocation sentence is excessive

because the trial court failed to consider his turbulent upbringing, the gravity

of his first-time, technical parole violation, and his rehabilitative needs

before sentencing him. Appellant’s Brief at 16-15. He also alleges that his

revocation sentence exceeded his original sentence of two concurrent terms

of time served to 23 months’ incarceration, followed by 2 years’ probation.

Id. at 19. These issues implicate the discretionary aspects of Appellant’s

sentence. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013)

(en banc).

“Where an appellant challenges the discretionary aspects of a

sentence, there is no automatic right to appeal, and and appellant's appeal

should be considered a petition for allowance of appeal.” Commonwealth

v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007). As we observed in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)).

In the instant case, Appellant filed a timely Notice of Appeal, and

timely Post-Sentence Motion. He also included a separate Pa.R.A.P. 2119(f)

statement in his appellate brief. As to whether Appellant has presented a

substantial question, we must examine the specific sentencing issue raised

by Appellant.

In his Pa.R.A.P. 2119(f) Statement, Appellant alleges that his sentence

is manifestly excessive because his probation violations were merely

technical and the court failed to consider mitigating factors. Appellant’s Brief

at 10-11. He also alleges that his revocation sentence is excessive because

it exceeds his original aggregate sentence of time-served to 23 months’ with

a consecutive two-year term of probation. Id. at 12. He concludes,

therefore, that he has raised a substantial question as to the

appropriateness of his sentence under 42 Pa.C.S. §§ 9721 and 9781(c)(2).

Id.

We disagree with Appellant that his allegation that the court failed to

consider mitigating factors when resentencing him raises a substantial

question. See Commonwealth v. Matroni, 923 A.2d 444, 445 (Pa. Super.

2007) (“[T]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.” (quotation and citation omitted)). However, we

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find that his claim that his revocation sentence, which was in excess of his

original sentence, does present a substantial question. See

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (finding a

substantial question exists when “a sentence of total confinement, in excess

of the original sentence, is imposed as a result of a technical violation of

parole or probation[]”).

Having determined that Appellant has raised a substantial question for

review, we turn to the merits of his claim.

“In reviewing a challenge to the discretionary aspects of sentencing,

we evaluate the court’s decision under an abuse of discretion standard.”

Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (citation

and quotation omitted). Additionally, this Court’s review of the discretionary

aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. §

9781(c) and (d).” Id. Section 9781(c) reads:

(c) Determination on appeal.—The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

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In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

We review a claim that a revocation sentence is excessive with the

following in mind:

The imposition of a sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment—a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation

omitted). When imposing a sentence of incarceration after revocation of

probation, the sentencing court “is limited only by the maximum sentence

that it could have imposed originally at the time of the probationary

sentence.” Id. at 1044.

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“Our Supreme Court has determined that where the trial court is

informed by a pre-sentence report, it is presumed that the court is aware of

all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed.”

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(citing Commonwealth v. Devers, 546 A.2d 12, 18–19 (Pa. 1988)).

Appellant essentially argues that the trial court abused its discretion in

sentencing him to 2 to 5 years’ incarceration for a first-time, technical parole

violation, when it originally sentenced him to two concurrent terms of time-

served to 23 months’ incarceration, and 2 years’ probation. Appellant’s Brief

at 19. Appellant claims that he complied with the rules and regulations of

his parole, reported for his weekly appointments, and submitted to drug

testing. Id. He avers that he demonstrated a potential for rehabilitation

and compliance with court orders. Id. at 20-21. Therefore, he asserts that

the court’s revocation sentence was excessive and should be vacated. Id. at

21.

After a thorough review of the record, Appellant’s Brief, the applicable

law, and the comprehensive and well-reasoned Opinion of the trial court, we

conclude there is no merit to Appellant’s issue on appeal. Accordingly, we

affirm on the basis of the trial court’s Opinion. See Trial Ct. Op., 10/18/16,

at 5-7. The parties are instructed to attach the October 18, 2016 Opinion to

any future filings.

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Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/4/2017

-9- Circulated 04/10/2017 12:04 PM