Com. v. Folkes, H.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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

Circulated 04/10/2017 12:04 PM