Com. v. Harmon, R.

• Court: Superior Court of Pennsylvania
• Decided: July 30, 2020
• Docket: 1728 WDA 2019
• Status: Unpublished

Opinion

J-S21042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD HARMON, : : Appellant : No. 1728 WDA 2019

Appeal from the Judgment of Sentence Entered July 2, 2018 in the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000276-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD HARMON, : : Appellant : No. 1729 WDA 2019

Appeal from the Judgment of Sentence Entered July 2, 2018 in the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000207-2016

BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 30, 2020

Ronald Harmon (“Harmon”) appeals from the judgments of sentence

imposed following the revocation of his State Intermediate Punishment J-S21042-20

(“SIP”)1 sentence. We affirm.

On July 27, 2016, Harmon was arrested and charged, at docket #207

of 2016 (“#207 of 2016”), with weapons or instruments for escape related to

conduct that had occurred while Harmon was in prison for separate, unrelated

offenses. On November 11, 2016, Harmon was charged, at docket #276 of

2016 (“#276 of 2016”) with burglary, criminal trespass, harassment, and

criminal mischief.

On March 7, 2017, Harmon entered a guilty plea to the charge at #207

of 2016, and to the burglary, harassment, and criminal mischief charges at

#276 of 2016. Pursuant to the plea agreement, the Commonwealth

recommended that Harmon be transferred to the SIP Program. The trial court

accepted Harmon’s plea, and directed him to be transferred to the Department

of Corrections to be evaluated for SIP eligibility. On May 31, 2017, Harmon

was sentenced to SIP.

On March 26, 2018, the Department of Corrections expelled Harmon

from the SIP program due to a lack of meaningful participation. On July 2,

2018, the trial court held a revocation and resentencing hearing. At the

hearing, the trial court revoked Harmon’s SIP sentence, and re-sentenced him

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1 See generally Commonwealth v. Kuykendall, 2 A.3d 559, 563-64 (Pa. Super. 2010) (explaining that the SIP program is a two-year program aimed at treating the addictions of certain criminal offenders); 61 Pa.C.S.A. § 4105(b) (setting forth requirements of SIP program). The SIP program “is a privilege granted at the discretion of the sentencing court.” Kuykendall, 2 A.3d at 565.

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to a term of 14 to 28 months for the conviction at #207 of 2016, and a

consecutive term of 30 to 60 months for the burglary conviction at #276 of

2016, with credit for time served. Harmon did not file a post-sentence motion

to modify or reconsider his sentence.

Harmon filed two timely Notices of Appeal, one at each docket number,

and two court-ordered Pa.R.A.P. 1925(a) Concise Statements. On November

27, 2018, this Court dismissed Harmon’s appeal for failure to file a brief.

Harmon was appointed new counsel on January 31, 2019. On July 24,

2019, Harmon filed a Petition for Post-Conviction Relief pursuant to the Post

Conviction Relief Act (“PCRA”),2 alleging that trial counsel provided ineffective

assistance of counsel per se in failing to file a brief for his direct appeal. On

August 8, 2019, the PCRA court issued an Order reinstating Harmon’s direct

appeal rights, nunc pro tunc. On September 6, 2019, Harmon filed two new

Notices of Appeal, nunc pro tunc, at each docket number, as well as two new

Pa.R.A.P. 1925(b) Concise Statements.3

Harmon raises the following issue for our review: “Did the trial court

abuse i[t]s discretion by sentencing [Harmon] to unreasonable consecutive

sentences?” Brief for Appellant at 1 (unnumbered).

2 42 Pa.C.S.A. §§ 9541-9546.

3By Order entered January 2, 2020, this Court, sua sponte, consolidated Harmon’s appeals for our appellate review.

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Harmon argues that the trial court abused its discretion when it imposed

a consecutive sentence for his convictions. Id. at 4 (unnumbered). Harmon

claims that the trial court’s decision to run his sentences consecutively

resulted in an aggregate sentence that was disproportionate to his criminal

conduct. Id. at 4-5 (unnumbered). Additionally, Harmon asserts that the

trial court’s decision to impose a sentence of prison time was unreasonable in

light of Harmon’s substance abuse issues, rather than sentencing him to the

intermediate, treatment-based SIP program to which he was previously

sentenced. Id. at 5 (unnumbered).

Harmon’s claim challenges the discretionary aspects of his sentence. “It

is well-settled that, with regard to the discretionary aspects of sentencing,

there is no automatic right to appeal.” Commonwealth v. Mastromarino,

2 A.3d 581, 585 (Pa. Super. 2010). Before we address the merits of a

discretionary sentencing claim,

[w]e conduct a four-part analysis to determine: (1) whether the 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 the 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (some

citations omitted). With respect to the second factor, an appellant must object

and request a remedy at sentencing, or raise the challenge in a post-sentence

motion. Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004).

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The Pennsylvania Rules of Criminal Procedure caution defendants that, in filing

post-sentence motions, “[a]ll requests for relief from the trial court shall be

stated with specificity and particularity[.]” Pa.R.Crim.P. 720(B)(1)(a). See

Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015) (stating

that the trial court must be provided the opportunity to reconsider its

sentence, either at sentencing or in a post-sentence motion). See, e.g.,

Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003) (holding

that the defendant waived his discretionary aspects of sentencing claim

asserting that the trial court failed to state the reasons for his sentence on the

record because he argued in his post-sentence motion only that his sentence

was unduly severe, and the trial court abused its discretion under the

sentencing code).

Our review of the Notes of Testimony from Harmon’s sentencing hearing

indicates that Harmon did not preserve this claim on the record at sentencing.

See N.T., 7/2/18, at 21 (wherein the trial court informs Harmon of the time

limits under which he can file a motion to challenge his sentence or request a

modification, and Harmon states that he understood his rights). Further,

Harmon failed to file a post-sentence motion. Because Harmon has failed to

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properly preserve the issue at sentencing or in a post-sentence motion, we

are unable to address the merits of his claim. See Tejada, supra.4

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/30/2020

4 We note that Harmon raised the issue in his Pa.R.A.P. 1925(b) Statement and the trial court addressed the issue in its Rule 1925(a) Opinion. However, this does not cure waiver. Mann, 820 A.2d at 794.

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