J-S58028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
BRUCE WAYNE MILLER
Appellant No. 1984 MDA 2015
Appeal from the Order Entered April 22, 2015 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000425-2011
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2016
Bruce Wayne Miller appeals pro se1 from the judgment of sentence of
one to three years imprisonment that was imposed after he violated a
technical condition of his special probation.2 We affirm.
____________________________________________
1 On April 4, 2016, we remanded this matter for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine whether Appellant voluntarily waived his right to counsel. Following an on-the-record colloquy, the trial court accepted Appellant’s waiver of counsel as knowing and voluntary. 2 As opposed to typical “state” probation, special probation is an order of probation entered by the trial court that directs the Pennsylvania Board of Probation and Parole to supervise the probationary term of a state sentence but permits the trial court to retain the power to revoke probation under 42 Pa.C.S. § 9771 and impose a new sentence. See 61 Pa.C.S. § 6133(a) (“The board shall have exclusive power to supervise any person placed on (Footnote Continued Next Page)
* Retired Senior Judge assigned to the Superior Court. J-S58028-16
On July 11, 2011, Appellant pled guilty to possession with intent to
deliver (oxycodone). On May 31, 2013, the trial court imposed thirteen to
thirty-six months imprisonment followed by two years of special probation to
be supervised by the Pennsylvania Board of Probation and Parole
(“the Board”).3 We dismissed the ensuing appeal due to Appellant’s failure
to file a brief.
As it relates to the issues addressed herein, one of the conditions of
special probation proscribed Appellant from traveling outside of the five-
county supervisory district governed by the Board’s Allentown office.4
Appellant began serving the special probation on May 15, 2014. On January _______________________ (Footnote Continued)
probation by any judge of a court having criminal jurisdiction, when the court by special order directs supervision by the board.”); Commonwealth v. Mitchell, 955 A.2d 433 (Pa.Super. 2008). As Judge Klein explained in the concurring statement he authored in Mitchell, supra at 441, “by using special probation[,] . . . the [state] agent handling the parole will also handle the probation. At the same time, the trial judge retains his or her authority to resentence if there is a violation. This scheme is logical and maintains judicial discretion without duplicating effort.” 3 The trial court initially imposed the thirteen to thirty-six month judgment of sentence on February 28, 2012. On March 12, 2013, we vacated that sentence and remanded for further proceedings to supplement the record. See Commonwealth v. Miller, 69 A.3d 1289 (Pa.Super. 2013) (unpublished memorandum). On May 31, 2013, the trial court supplemented the record and re-imposed the original sentence. 4 The Allentown District comprised Bucks, Berks, Schuylkill, Lehigh, and Northampton Counties. N.T., 4/22/15, at 3. Appellant admitted to the supervising agent that he traveled outside the five-county district without authorization on approximately five occasions. Id. at 4, 6, 8.
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22, 2015, Appellant’s probation agent filed a notice of technical violation
alleging that Appellant had traveled outside the district without permission.
Appellant waived his Gagnon I hearing.5
On March 24, 2015, Appellant filed a petition to vacate the Gagnon II
violation of probation (“VOP”) proceeding because the travel restriction was
not imposed by the trial court and due to the approximately three-month
delay between the date of the underlying traffic citation and the date that
the Commonwealth issued notice of the violation of probation proceeding.
The trial court denied the motion, and following the VOP hearing on April 22,
2015, it found Appellant in technical violation of the conditions of his
probation. The court revoked special probation and imposed one to three
years imprisonment. Appellant filed a timely post-sentence motion for
reconsideration6 and within thirty-days of the date the motion was denied by
5 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (defendant accused of violating probation is entitled to two hearings: 1) a pre-revocation hearing to determine probable cause of a violation; and 2) a revocation hearing to establish violation and determine whether revocation is warranted). 6 The motion for reconsideration noted that Appellant secured employment, abstained from criminal activity, and desired to “continue working on his rehabilitation with community-based supervision.” Motion for Reconsideration, 5/1/15, at unnumbered 2. Appellant requested that the trial court either suspend the imposition of total confinement, reduce the judgment of sentence to two months time served, or impose six months to three years confinement. Id. Appellant did not challenge a discretionary aspect of sentence beyond the imposition of total confinement for a technical (Footnote Continued Next Page)
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operation of law, he filed a notice of appeal. The ensuing Rule 1925(b)
statement raised thirty-one enumerated issues. The trial court entered an
opinion that addressed several of Appellant’s claims and deemed the
remaining issues waived.7
First, we must determine whether the appeal is timely. Pursuant to
Pa.R.Crim.P. 708(E), a post-sentence motion for reconsideration does not
toll the thirty-day appeal period after a VOP hearing. Herein, Appellant’s
notice of appeal, which he filed following the denial of his post-sentence
motion by operation of law is obviously untimely. Nevertheless, we find a
breakdown in the court machinery because the trial court inaccurately
advised Appellant of his appeal rights. Specifically, in a post-sentence rights
form issued at the close of the VOP hearing, the trial court informed
Appellant that if he filed a timely post-sentence motion, the notice of appeal
had to be filed within thirty-days of the order denying the motion. See
Verification of Post Sentence Rights, 4/22/15, at 1. This is a patent
_______________________ (Footnote Continued)
violation nor did he assail the trial court’s impartiality or assert that the condition of probation infringed upon his religious freedom. 7 One month after the trial court issued its Rule 1925(a) opinion, Appellant filed an amended concise statement that rehashed assertions that he had included in the prior statement and purported to assert a novel claim arguing that the trial court failed to craft an individualized sentence. As discussed in the body of this memorandum, that sentencing issue is waived because it was not asserted during sentencing or in the post-sentence motion.
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misstatement of the law that is tantamount to a breakdown of the court’s
operations. See Commonwealth v. Parlante, 823 A.2d 927, 929
(Pa.Super. 2003) (declining to quash appeal because untimely filing resulted
from trial court's misstatement of appeal period under Pa.R.Crim.P. 907(E),
which operated as breakdown in court's operation). Accordingly, we treat
the notice of appeal as timely filed and address the merits of Appellant’s
issues that were raised before the trial court and presented in the Rule
1925(b) statement.
Appellant enumerates thirteen issues for our review, which we have
condensed into seven broad complaints: (1) Whether the trial court erred in
revoking his probation based upon a purported condition of probation that
the probation agent lacked authority to enforce; (2) Whether the
Commonwealth adduced sufficient evidence to establish the probation
violation; (3) Whether the condition of probation that restricted his ability to
travel infringed upon his freedom to exercise religion when he attended
services at a church that was located outside of the travel area and the
probation agent refused to ease the condition to permit him to attend the
services he desired; (4) Whether the trial court erred in refusing to recuse
from the VOP hearing after exhibiting bias, prejudice, and ill will; (5)
Whether the trial court considered facts that were outside of the record; (6)
Whether the trial court erred in failing to hold a timely VOP hearing; and (7)
Whether the trial court erred in imposing a sentence of total confinement for
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a technical violation of the conditions of probation. See Appellant’s brief at
3-6.
The aggregate complaints that compiled Appellant’s third, fourth, and
fifth questions are waived pursuant to Pa.R.A.P. 302(a), due his failure to
raise them in the trial court. Specifically, Appellant failed to assert before
the trial court any issues regarding the restriction of his freedom of religion,
the trial court’s bias, failure to recuse, or its consideration of extra-judicial
facts. Thus, we do not address the merits of those claims.
Our standard of review follows. We review the trial court’s decision to
revoke probation for an abuse of discretion. Commonwealth v.
MacGregor, 912 A.2d 315, 317 (Pa.Super. 2006). “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 (Pa.Super. 2010); Commonwealth v. Cartrette, 83 A.3d 1030,
1033 n.1 (Pa.Super. 2013) (en banc) (Superior Court’s scope of review
includes claim challenging discretionary aspects of sentence following
revocation of probation).
Appellant’s first preserved legal argument challenges the propriety of
the court’s finding of a probation violation. Essentially, he argues that, since
the travel restriction that he was found to have violated was not imposed by
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a court, it could not be considered grounds to revoke his probation. We
reject Appellant’s characterization of the probation condition and his legal
argument.
Appellant invokes MacGregor, supra, for the legal proposition that
conditions of probation that are not imposed by the sentencing court cannot
be grounds for violation. In MacGregor, we vacated a judgment of
sentence that was imposed after a probation revocation based on a
condition of parole that was recited on a preprinted form applicable to
parole rather than the sentencing court. We first observed that “the
legislature . . . has specifically empowered the court, not the probation
offices and not any individual probation officers, to impose the terms of
probation.” Id. at 317. Then, noting that the pertinent condition had been
“drafted by, and signed by a parole agent as the issuing authority,” we
reasoned that the record could not sustain the trial court’s finding that the
appellant violated the terms of his probation. Id. at 318.
However, in Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012), our
Supreme Court addressed our holding in MacGregor and held that, while
neither probation agencies nor probation agents may impose conditions of
probation, “the Board and its agents may impose conditions of supervision
that are germane to, elaborate on, or interpret any conditions of probation
that are imposed by the trial court.” Elliott, 50 A.3d at 1292. It
summarized its holding as follows: “a trial court may impose conditions of
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probation in a generalized manner, and the Board or its agents may impose
more specific conditions of supervision pertaining to that probation, so long
as those supervision conditions are in furtherance of the trial court's
conditions of probation.” Id. Thus, despite Appellant’s protestations to the
contrary, the Board and its agents may, in fact, fashion a specific condition
of supervision insofar as it advances the conditions imposed by the trial
court. Id.
Preliminarily, we observe that MacGregor is distinguishable insofar as
that case did not involve special probation under § 6133(a). The appellant
in that case had served his full term of confinement and was released to a
consecutive term of probation. He subsequently violated probation based
upon the probation supervisor’s imposition of a condition that was listed on a
preprinted form outlining the “Special Conditions of Parole.” See
MacGregor, supra at 316. Unlike the rote parole condition that was
misapplied to the probationer in MacGregor, however, Appellant violated a
condition that governed his special probation, a restriction that he
specifically acknowledged at the outset of the Board’s supervision.
Moreover, the travel restriction was not reflexively imposed by the probation
agent. In reality, as the trial court highlighted in rejecting Appellant’s
position, the Pennsylvania Code expressly directed the Board to subject
Appellant to travel restrictions in this case. Specifically, the Code provides,
“A special probationer . . . is subject to the following conditions: (1) Be
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under the supervision of a district office or suboffice and not leave that
district without prior written permission of the . . . supervision staff.” 73
Pa.Code § 65.4. Hence, MacGregor, which involves the Board’s authority to
impose mechanical parole conditions to people on probation following a state
sentence, is not dispositive of the case at bar.
The facts of this case align with the relevant facts the High Court
addressed in Elliot, supra, which, like the present case, involved the
Board’s supervision of a probationer serving special probation under §
6133(a). Instantly, the court-ordered terms of probation included the
requirement that Appellant complete all of the conditions of special probation
imposed by the Board in its supervisory capacity. Those conditions of
supervision, including the express requirement that Appellant remain within
the supervising district, were in keeping with the trial court’s order that
Appellant satisfy all of the responsibilities that probation entailed. Thus, as
the High Court recognized in Elliot, the Board’s supervisory condition was
germane to and in furtherance of the general conditions of probation
imposed by the trial court. See Elliott, supra at 1292. Accordingly, no
relief is due. See Commonwealth v. Allshouse, 33 A.3d 31 (Pa.Super.
2011) (noting that probationer’s refusal to comply with supervisory
conditions was basis to sustain revocation due to unwillingness to cooperate
with the probation office).
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Next, Appellant argues that the trial court adduced insufficient
evidence to establish that he violated the terms of his probation. While
Appellant did not level this objection during the VOP proceedings, a
challenge to the sufficiency of the evidence may be raised for the first time
on appeal. See Pa.R.Crim.P. 606(A)(7) (defendant may challenge
sufficiency of evidence by leveling challenge on appeal). Thus, we address
the merits of this argument.
The Commonwealth bears the burden of proving a probation violation
by a preponderance of the evidence. Commonwealth v. Shimonvich, 858
A.2d 132, 134 (Pa.Super. 2004). We outlined the pertinent legal precepts in
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super. 2007). “The
Commonwealth establishes a probation violation meriting revocation when it
shows, by a preponderance of the evidence, that the probationer’s conduct
violated the terms and conditions of his probation, and that probation has
proven an ineffective rehabilitation tool incapable of deterring [the]
probationer from future antisocial conduct.”
Appellant contends that the evidence adduced during the VOP hearing
did not demonstrate that probation was an ineffective means to achieve his
rehabilitation. He posits that he, in fact, has been rehabilitated for the
underlying drug offense that is the basis of his sentence of probation. Thus,
he opines that, since probation has ceased to serve its original purpose, he
should not have been deemed in violation. We disagree.
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Contrary to Appellant’s assertions, the certified record confirms both
the trial court’s finding that Appellant violated the terms of probation and its
determination that probation has proven ineffective. During the VOP
hearing, Probation Agent Anthony Mondello testified that he was the
designated agent for sex offenders within the Allentown District. N.T.,
4/22/15, at 3. Since Appellant had been convicted of a sex offense in an
unrelated case, Agent Mondello was also assigned to supervise his probation
in the present case. Id. Agent Mondello explained that one of the
conditions of Appellant’s probation was that he remain within the five-county
supervision district. Id. at 3. On November 30, 2014, Appellant received a
traffic citation in Carbon County, which is outside the Allentown District. Id.
at 4. Thereafter, on January 15, 2015, Appellant admitted to Agent
Mondello that he had violated this specific condition on five separate
occasions. Id. at 4, 5. Agent Mondello filed the notice of violation one week
later. During the VOP hearing, Appellant again acknowledged that he
violated this condition of probation, although he attempted to justify the
violations as necessary to attend church services. Id. at 8-9.
As it relates to whether the probation has proven ineffective, Appellant
testified during the VOP hearing that he requested permission to attend
religious services outside of the supervision district but Agent Mondello
refused consent. Id. Specifically, in response to the trial court’s inquiry,
Appellant recalled, “there was a time [when] Mondello said, ‘I’m not allowing
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you to go to religious services at all.’” Id. at 9. In contrast to Appellant,
Agent Mondello denied that Appellant requested to travel outside the district.
Id. In fact, he declared, “I have no idea why he was traveling outside the
district.” Id. at 6.
In finding that the Commonwealth established by a preponderance of
evidence that Appellant violated the conditions of probation and that
probation has proven ineffective, the trial court concluded, “To me it’s a very
clear violation, [Appellant] admitted leaving [the district], he received a
citation outside of it. . . . I believe factually the agent’s statement that he
did not allow [Appellant] to leave, therefore, I find [a] violation.” Id. at 10.
In the Rule 1925(a) opinion, the trial court expounded,
This Court was not satisfied with Appellant's conduct while on probation. His uncooperative attitude, disregard for the rules and conditions of supervision, and disrespect of this Court's authority were all indications that probation was not serving its rehabilitative purposes or deterring antisocial conduct. The Appellant is under court supervision for a set period of time as an alternative to incarceration. Whether or not he has been rehabilitated is not his judgment to make. Appellant cannot bend or choose which rules apply to him while under supervision.
Trial Court Opinion, 1/19/16, at 16-17.
Thus, reviewing the record in the light most favorable to the
Commonwealth as the verdict winner, it is clear that Appellant disregarded
the condition of probation that limited his travel outside of the district and
then lied to the trial court about having entreated Agent Mondello for
permission, only to be arbitrarily denied. Appellant’s repeated defiance of
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the travel constraints evince his aversion to the Board’s supervision. All of
the foregoing evidence supports both the trial court’s determination that a
violation existed and its finding that Appellant’s attempt to obscure his
malfeasance demonstrates that probation has been ineffective. Accordingly,
Appellant’s claim fails.
Appellant’s third preserved argument asserts that the trial court erred
in failing to hold a timely VOP hearing pursuant to Pa.R.Crim.P. 708(b)(1),
governing the administration of VOP proceedings. That rule provides in
pertinent part as follows:
(B) Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.
Pa.R.Crim.P. 708(B).
This Court has interpreted “speedily as possible” as requiring a hearing
within a reasonable time. Commonwealth v. Christmas, 995 A.2d 1259,
1262 (Pa.Super. 2010). There is no presumptive reasonable period in which
the Commonwealth must revoke probation. Id. at 1263. Instead, courts
must consider whether the delay was reasonable under the circumstances of
the specific case and whether the defendant was prejudiced by the delay.
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Id. “In evaluating the reasonableness of a delay, the court examines three
factors: the length of the delay; the reasons for the delay; and the prejudice
resulting to the defendant from the delay.” Id. (quoting Commonwealth v.
Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009)).
Appellant complains that Agent Mondello did not file a notice of
violation in this case until three months after Appellant was issued a traffic
citation outside of the Allentown District, and the VOP hearing was not
conducted until the following month. Thus, Appellant posits that the four
month delay between the technical violation and the VOP hearing was not
only unreasonable but also prejudicial to his defense. As to the latter
assertion, he argues that the delay “caused loss of witnesses that could have
testified [about] the nature of his travel [to Carbon County]” and refuted the
Agent Mondello’s testimony that Appellant failed to request permission to
leave the area to attend religious services. Appellant’s brief at 27. Neither
of these assertions has merit.
First, the four-month delay is not unreasonable. As we stated in
Christmas, supra at 1263, “When examining the reasons for the delay, the
court looks at the circumstances surrounding the delay to determine whether
the Commonwealth acted with due diligence in scheduling the revocation
hearing.” Agent Mondello explained that, while Appellant received a traffic
violation in Carbon County on November 30, 2014, the Board did not
discover Appellant’s violations until January 15, 2015, when Appellant
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admitted to Agent Mondello and a member of his staff that he had traveled
to Carbon County on approximately five occasions while under the Board’s
supervision. Agent Mondello issued notice of the probation violation seven
days later, and the VOP hearing occurred within one month. As the notice
was issued within seven days of the date the Board discovered the violation,
we reject Appellant’s claim that the delay was unreasonable. Moreover,
starting with the date that the Commonwealth received notice of Appellant’s
traffic violation in Carbon County and Appellant’s acknowledged violations of
the travel restrictions, all of the events leading to the VOP hearing one
month later proceeded in a timely fashion. Appellant’s assertion of
unreasonable delay is meritless.
Furthermore, Appellant’s claim of prejudice is specious. While
Appellant makes vague references to witnesses who would have testified on
his behalf but for the purported delay, he neglected to identify the
witnesses, assert their unavailability during the VOP hearing, or explain how
the purported delay caused their absence. No relief is due.
Finally, Appellant levels several challenges to the discretionary aspect
of his sentence. Our standard of review when an appeal challenges the
discretionary aspect of sentencing requires that this Court conduct a four-
part analysis to determine: (1) whether Appellant has filed a timely notice of
appeal; (2) whether the issue was preserved at sentencing or in a motion to
modify the sentence; (3) whether the brief contains a statement of the
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reasons relied upon for the appeal in compliance with 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. Commonwealth v. Bullock,
948 A.2d 818, 825-826 (Pa. Super. 2008).
Instantly, we have judged Appellant’s notice of appeal timely.
However, only one of the litany of challenges that Appellant raised pursuant
to Rule 1925(b) and Rule 2119(f) were actually asserted in the trial court,
i.e., the trial court erred in imposing total confinement for violating a
technical condition of probation. While Appellant raised several challenges
for the first time in his Rule 1925(b) statement, those claims are not
reviewable. See Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009)
(including issue in Rule 1925(b) statement will not cure failure to raise issue
below). Accordingly, we limit our review to the isolated issue regarding the
imposition of total confinement, which we find raises a substantial question
that the sentence is inappropriate under the sentencing code. See
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010) (“The
imposition of a sentence of total confinement after the revocation of
probation for a technical violation, and not a new criminal offense, implicates
the ‘fundamental norms which underlie the sentencing process.’”).
In Crump, we reiterated the following pertinent principles:
When imposing a sentence of total confinement after a probation revocation, the sentencing court is to consider the factors set forth in 42 Pa.C.S. § 9771. Commonwealth v.
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Ferguson, [893 A.2d 735 (Pa.Super. 2006)]. Under 42 Pa.C.S. § 9771(c), a court may sentence a defendant to total confinement subsequent to revocation of probation if any of the following conditions exist:
1. the defendant has been convicted of another crime; or
2. the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
3. such a sentence is essential to vindicate the authority of the court.
Crump, supra, at 1282-1283. “Sentencing is a matter vested within the
discretion of the trial court and will not be disturbed absent a manifest abuse
of discretion.” Id. at 1282. The trial court does not have to engage in a
lengthy discourse of its reasons for imposing a given sentence or specifically
identify the statute in question. Id. at 1283. However, “the record as a
whole must reflect the sentencing court’s consideration of the facts of the
crime and character of the offender.” Id.
Herein, the trial court indicated that confinement was necessary to
vindicate its authority. It justified the sentence of confinement as follows:
In the present case, prior to imposing sentence, this Court had the benefit of recommendations from the Lackawanna County Adult Probation and Parole Department, as well as the presentence investigation report from the sentence that Appellant violated, which were reviewed in their entirety. This Court considered the underlying sentence imposed, the guidelines ranges the Appellant was facing, and the fact that Appellant was given a sentence in the mitigated range, and the fact that Appellant did not abide by this Court's sentence.
....
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As discussed throughout this opinion, Appellant has failed to follow the sentence imposed and blatantly disrespects the authority and supervision of this Court. As such, this Court imposed an appropriate sentence, which considered all facts and circumstances, the guidelines, and the purposes of sentencing. Therefore, since no abuse of discretion occurred, this Court's April 22, 2015 sentence should be affirmed.
Id. at 32 (emphasis added).
In sum, the court concluded that total confinement was warranted
pursuant to 42 Pa.C.S. § 9771(c) (2) and (3). Appellant’s course of conduct
while he was on special probation demonstrated his disdain for the Board’s
supervision, the trial court’s directions, and the need for total confinement.
Appellant knowingly disregarded the conditions of special probation and
traveled outside of the designated area without permission on several
occasions. Indeed, but for the isolated traffic citation he received in Carbon
County during November 2014, the trial court would never have discovered
that Appellant was openly flaunting the conditions of special probation. Even
after being discovered, however, Appellant attempted to deflect
accountability by alleging that Agent Mondello arbitrarily refused his request
to attend church services outside the district. Moreover, the court observed
that, while Appellant was serving probation, he had been discharged from
his sex offender treatment due to his “failure to complete assignments,
dishonesty, and manipulative behaviors,” including an attempt to circumvent
social media restrictions by instructing a third party to open a Facebook
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account on his behalf and post photos of Appellant at his direction. Trial
Court Order, 4/22/15, at 1-2.
In light of Appellant’s disregard for the conditions governing his
probation and his attempt to avoid responsibility for his transgressions, we
do not disturb the trial court’s determination that confinement was
warranted to vindicate its authority.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/28/2016
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