J-S13009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : HEATH E. MILLER : : Appellant : No. 545 WDA 2017
Appeal from the Judgment of Sentence October 18, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006379-2016, CP-02-CR-0007169-2014, CP-02-CR-0007999-2016, CP-02-CR-0008943-2014, CP-02-CR-0014928-2010, CP-02-CR-0015145-2010, CP-02-CR-0015147-2010, CP-02-CR-0015148-2010
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 11, 2018
Appellant, Heath E. Miller, appeals nunc pro tunc from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his negotiated guilty plea to two counts of burglary and one count each of
criminal trespass and criminal mischief.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
June 20, 2011, Appellant entered guilty pleas to multiple counts of burglary,
conspiracy to commit burglary, theft, and related offenses at four separate
Docket numbers, 14928-2010, 15145-2010, 15147-2010, and 15148-2010.
____________________________________________
1 18 Pa.C.S.A. §§ 3502(a)(2), 3503(a)(1)(ii), and 3304(a)(5), respectively. J-S13009-18
The court sentenced Appellant on December 13, 2011, to an aggregate term
of twenty-four (24) months’ intermediate punishment, plus five (5) years’
probation. On November 18, 2014, Appellant entered negotiated guilty pleas
to multiple counts of burglary and related offenses at Docket Nos. 7169-2014
and 8943-2014. That same day, the court sentenced Appellant to an
aggregate term of eleven and one-half (11½) to twenty-three (23) months’
incarceration, plus four (4) years’ probation and compliance with the mental
health court prescription program. Subsequently, the mental health court
program assumed supervision of Appellant’s probation at the 2010 docket
numbers as well.
Appellant committed two additional burglaries in May 2016. On
September 27, 2016, Appellant entered negotiated guilty pleas to two (2)
counts of burglary and one (1) count each of criminal trespass and criminal
mischief at Docket Nos. 6397-2016 and 7999-2016. Pursuant to an
agreement with the Commonwealth, on October 18, 2016, the court
sentenced Appellant to two (2) to four (4) years’ incarceration, plus five (5)
years’ probation at Docket Nos. 6379-2016 and 7999-2016, to be served
concurrently. On the same date, the court also revoked Appellant’s probation
at the 2010 and 2014 docket numbers and resentenced Appellant to a term
of four (4) to eight (8) years’ incarceration, consecutive to the sentences at
Docket Nos. 6379-2016 and 7999-2016. In total, the court sentenced
Appellant to an aggregate term of six (6) to twelve (12) years’ incarceration,
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plus five (5) years’ probation.
Appellant filed a timely post-sentence motion at all eight (8) docket
numbers on October 27, 2016, which the court denied on November 8, 2016.
On March 6, 2017, Appellant filed a pro se motion for reinstatement of his
direct appeal rights nunc pro tunc and appointment of appellate counsel, which
the court granted on March 9, 2017. On April 7, 2017, Appellant filed a timely
notice of appeal nunc pro tunc at all docket numbers. The court ordered
Appellant on April 13, 2017, to file a concise statement of errors complained
of on appeal per Pa.R.A.P. 1925(b); Appellant complied on July 3, 2017,
following an extension.
Appellant raises one issue for our review:
IS THE IMPOSITION OF THE AGGREGATE SENTENCE OF SIX (6) TO TWELVE (12) YEARS’ INCARCERATION FOLLOWING THE IMPOSITION OF TWO NEW SENTENCES PURSUANT TO A NEGOTIATED PLEA, AND SIX PROBATION VIOLATION SENTENCES, MANIFESTLY EXCESSIVE, UNREASONABLE, AND AN ABUSE OF THE SENTENCING COURT’S DISCRETION? SPECIFICALLY, DID THE COURT IMPOSE A MANIFESTLY EXCESSIVE SENTENCE THAT IS WHOLLY UNREASONABLE AND NOT IN CONFORMITY TO THE SENTENCING CODE (42 PA.C.S.A. § 9721(B)), INSOFAR AS IT IS CONTRARY TO (1) THE SPECIFIC NEED FOR PROTECTION OF THE PUBLIC IN RELATION TO [APPELLANT]’S ACTIONS, (2) THE GRAVITY OF THE OFFENSE AS IT RELATES TO THE IMPACT ON THE LIVES OF THE VICTIMS, AND (3) [APPELLANT]’S NEED FOR REHABILITATION?
(Appellant’s Brief at 14).
Appellant argues the aggregate sentence is disproportionate to his
crimes. Appellant complains the court failed to consider the relevant criteria
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contained in the Sentencing Code, which resulted in a sentence that is
inconsistent with the protection of the public, the gravity of the offense as it
relates to the impact on the community, and Appellant’s rehabilitative needs.
Appellant contends the sentencing court focused primarily on the impact of
Appellant’s crimes on the victims and Appellant’s inability to curb his drug
addiction. Appellant asserts the sentencing court failed to consider Appellant’s
allocution, his medical and psychological needs, and the progress he had made
while incarcerated awaiting sentencing. Appellant maintains the sentencing
court did not discuss on the record his medical and psychological needs.
Appellant concludes this Court should vacate his judgment of sentence and
remand this matter to the trial court with appropriate instructions. As
presented, Appellant challenges the discretionary aspects of his sentence.
See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim
that sentence is manifestly excessive challenges discretionary aspects of
sentencing). See also Commonwealth v. Dodge, 77 A.3d 1263, 1268
(Pa.Super. 2013), appeal denied, 625 Pa. 648, 91 A.3d 161 (2014) (stating
argument that court disregarded factors, such as rehabilitation and nature and
circumstances of offenses, implicates discretionary aspects of sentencing).
Generally, “while a guilty plea which includes sentence negotiation
ordinarily precludes a defendant from contesting the validity of his...sentence
other than to argue that the sentence is illegal or that the sentencing court
did not have jurisdiction, open plea agreements are an exception in which a
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defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.
2005) (emphasis in original). “An ‘open’ plea agreement is one in which there
is no negotiated sentence.” Id. at 363 n.1.
Here, Appellant entered negotiated guilty pleas at Docket Nos. 6379-
2016 and 7999-2016, as to sentencing also; and the court imposed the
agreed-upon sentences. Appellant cannot challenge the discretionary aspects
of the negotiated sentences imposed at Docket Nos. 6379-2016 and 7999-
2016. See id. Theoretically, however, Appellant can challenge the
discretionary aspects of his revocation sentences at the 2010 and 2014 docket
numbers, because those sentences do not stem from a sentence negotiation.
Id.
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).
“In general, 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.” Commonwealth v.
Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). Following the revocation of
probation, the court may impose a sentence of total confinement if any of the
following conditions exist: the defendant has been convicted of another crime;
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the conduct of the defendant indicates it is likely he will commit another crime
if he is not imprisoned; or, such a sentence is essential to vindicate the
authority of the court. See 42 Pa.C.S.A. § 9771(c). The Sentencing
Guidelines do not apply to sentences imposed following a revocation of
probation. Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.Super.
2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 (2006). “[U]pon
sentencing following a revocation of probation, the trial court is limited only
by the maximum sentence that it could have imposed originally at the time of
the probationary sentence.” Commonwealth v. Coolbaugh, 770 A.2d 788,
792 (Pa.Super. 2001).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910
(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). “The
determination of what constitutes a substantial question must be evaluated
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on a case-by-case basis.” Commonwealth v. Anderson, 830 A.2d 1013,
1018 (Pa.Super. 2003). A substantial question exists “only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 912-13. An allegation that the sentencing court
failed to consider certain mitigating factors, absent more, does not raise a
substantial question for our review. Commonwealth v. Rhoades, 8 A.3d
912, 918-19 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328
(2011), cert. denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012).
“[C]laims that a penalty is excessive and/or disproportionate to the offense
can raise substantial questions.” Commonwealth v. Malovich, 903 A.2d
1247, 1253 (Pa.Super. 2006). See also Commonwealth v. Vega, 850 A.2d
1277 (Pa.Super. 2004) (providing claim that sentence is manifestly excessive
and disproportionate to crime, particularly in light of facts surrounding criminal
episode and appellant’s background, raises substantial question).
Pursuant to Section 9721(b), “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.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as
part of the record, and disclose in open court at the time of sentencing, a
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statement of the reason or reasons for the sentence imposed.” Id.
Nevertheless, “[a] sentencing court need not undertake a lengthy discourse
for its reasons for imposing a sentence or specifically reference the statute in
question….” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.
2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record
as a whole must reflect the sentencing court’s consideration of the facts of the
case and the defendant’s character. Id. “In particular, the court should refer
to the defendant’s prior criminal record, his age, personal characteristics and
his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert
denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). See also
Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013) (explaining
where revocation court presided over defendant’s plea hearing and original
sentencing, as well as his probation revocation hearing and sentencing, court
had sufficient information to evaluate circumstances of offense and character
of defendant when sentencing following revocation).
Instantly, Appellant failed to raise at sentencing or in his post-sentence
motion his claims regarding: (1) the court’s failure to consider Appellant’s
allocution and progress made during incarceration; (2) the court’s unequal
consideration of sentencing factors; and (3) the aggregate sentence being
disproportionate to Appellant’s crimes. Therefore, Appellant waived those
claims on appeal. See Evans, supra.
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Moreover, even if Appellant had properly preserved all of his sentencing
claims, he would not be entitled to relief. (See Trial Court Opinion, filed
August 23, 2017, at 6-16) (finding: Appellant’s aggregate sentence is
warranted in light of totality of circumstances; Appellant has participated in
mental health court since 2014, before which he was on probation for several
burglary convictions at 2010 docket numbers; sentencing court spent nearly
two years supervising Appellant on his six burglary cases; Appellant met with
court approximately two dozen times; court became familiar with Appellant’s
behavior, background, criminal history, and rehabilitative needs; court did not
impose current sentence upon Appellant to punish him for relapsing; while he
participated in mental health court program, Appellant relapsed and violated
conditions of treatment programs several times; when court confronted
Appellant about his behavior in past, Appellant apologized for his mistakes
and made excuses for his violations; court advised Appellant his conduct
would not be tolerated and warned Appellant that if he continued to violate
terms of mental health court program, court would revoke his participation in
program and resentence Appellant on his six previous burglary convictions;
subsequently, Appellant committed two burglaries in May 2016; sentencing
court has headed mental health court for over five years and is aware of
struggles mental health court participants experience when addressing
addiction and mental health issues; Appellant took advantage of court’s
willingness to work with him, while he repeatedly demonstrated disinclination
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to take treatment and recovery seriously; Appellant’s behavior placed himself
and society at risk, and demonstrated disregard for law and authority; after
most recent offenses, Appellant publicly mocked and taunted police, hid from
law enforcement, and did not seek treatment assistance; in doing so,
Appellant demonstrated substantial lack of remorse for his crimes, and
unwillingness or incapability to transition to law-abiding life; thus, Appellant’s
allocution at sentencing hearing had little impact on sentencing court;
Appellant’s failure to transition to sober, law-abiding citizen, despite numerous
opportunities afforded him, makes him threat to himself and society;
Appellant’s repeated burglaries, despite receiving drug and alcohol treatment,
mental health treatment and support of Justice Related Services, probation,
and participation in mental health court, demonstrate Appellant made
conscious choice to engage in criminal behavior; Appellant’s prior, more
lenient sentences failed to deter him from criminal activity, and Appellant was
aware he would be subject to lengthier sentences if he continued to engage
in criminal activity; thus, under circumstances, current lengthier sentence is
warranted). Therefore, even if Appellant had properly preserved his issues,
we would affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/11/2018
- 11 - Circulated 05/14/2018 02:03 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
VS. CC Nos. 2016-7999; 2016-6379; 2014- 7169; 2010-15148; 2010-15147; 2010- 15145; 2010-14928; 2014-8943
HEATH E. MILLER,
Defendant.
OPINION This is a direct appeal from the judgment of sentence entered on October 18,
2016, following a negotiated plea entered on September 27, 2016, at CC Nos. 2016-
7999 and 2016-6379. The Defendant pled guilty to one (1) count of Burglary (18 Pa.
C.S.A. §3502) in exchange for a two (2) to four (4) year sentence of imprisonment with
a probationary tail at CC No. 2016-7999. The Defendant also pled guilty at CC No.
2016-6379 to one (1) count of Burglary (18 Pa. C.S.A. §3502) in exchange for a two (2)
to four (4) year sentence of imprisonment with a probationary tail. Sentencing was
deferred to October 18, 2016, so that the court could sentence the Defendant on his
2016 cases at the same time that it resentenced the Defendant for his probation
violations on his six (6) other mental health court cases at CC Nos. 2014-7169, 2010-
14928, 2010-15145, 2010-15147, 2010-15148, and 2014-8943.
1 On October 18, 2016, the court sentenced the Defendant in accordance with the
plea agreements entered into at CC Nos. 2016-7999 and 2016-6379, and an aggregate
sentence of two (2) to four (4) years of imprisonment, followed by a five (5) year term of
probation, was imposed. The court then revoked the Defendant's probationary terms on
his six (6) other cases at CC Nos. 2014-7169, 2010-14928, 2010-15145, 2010-15147,
2010-15148, and 2014-8943. For these mental health court violations, the Defendant
received an aggregate sentence of four (4) to eight (8) years of imprisonment to be
served consecutively to the sentence of imprisonment that he received for his 2016
cases. In sum, the Defendant received a total aggregate sentence of imprisonment of
six (6) to twelve (12) years of imprisonment, with a five (5) year term of probation to
follow.
On October 27, 2016, a Motion to Reconsider Sentence was filed. On March 6,
2017, the Defendant filed a pro se motion for appointment of counsel and requested
reinstatement of his direct appeal rights. On March 8, 2017, the court reinstated the
Defendant's appellate rights and appointed counsel to represent the Defendant in his
appeal. A Notice of Appeal was filed on April 7, 2017. Counsel was ordered to file a
Concise Statement of Errors Complained of on Appeal ("Concise Statement") by May 3,
2017. Counsel requested and received one extension of time to file the Concise
Statement.
2 On July 5, 2017, the Defendant, by way of counsel, filed a timely Concise
Statement, raising the following issue for review:
A. The total aggregate sentence of 6 to 12 years' imprisonment followed by a 5 year term of probation is unreasonable, manifestly excessive, and contrary to the dictates of the Sentence Code and 42 Pa. C.S.A. §9721(b). More specifically, the sentence was contrary to (1) the specific need for protection of the public in relation to Mr. Miller's actions, (2) the gravity of the offense as it relates to impact on the lives of the victims, and (3) Mr. Miller's need for rehabilitation. Despite his mental illness, Mr. Miller had been working hard to rehabilitate himself. His new charges were the result of a period of drug addiction regression. Such regression is not uncommon in the recovery process, [and] should not be a basis for imposing a lengthy period of incarceration. Mr. Miller expressed deep remorse for his actions, and made a statement showing critical insight into his problems, and his strong commitment to rehabilitating himself. While incarcerated awaiting sentencing, Mr. Miller made the most of his time doing pod work, Bible study, and doing all that was asked of him. He had no misconducts and was moved from maximum to minimum security. As such, Mr. Miller demonstrated that he is on the road to recovery, and that a lengthy period of incarceration is not warranted; rather, he would benefit most from a shorter period of incarceration, and participation in community treatment programs. (Concise Statement, pp. 2-3).
The Defendant's allegation of error on appeal is without merit. The court
respectfully requests that the Defendant's sentence be upheld for the reasons that
3 I. DISCUSSION
It is well -settled that Isientencing 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. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.
2003). "To constitute an abuse of discretion, the sentence imposed must either exceed
the statutory limits or be manifestly excessive." Commonwealth v. Gaddis, 639 A.2d
462, 469 (Pa. Super. 1994) (citations omitted). To that end, "an abuse of discretion may
not be found merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice,
bias, or or such lack of support so as to be clearly erroneous." Commonwealth v.
Greer, 951 A.2d 346, 355 (Pa. 2008). "In determining whether a sentence is manifestly
excessive, the appellate court must give great weight to the sentencing court's
discretion." Mouzon, supra, at 1128. This deferential standard of review acknowledges
that the sentencing court is "in the best position to view the defendant's character,
displays of remorse, defiance, indifference, and the overall effect and nature of the
crime," Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011) (internal
citations omitted).
The Defendant's sentencing argument seeks to challenge the discretionary
aspects of sentencing. The court notes that "[t]he right to appeal a discretionary aspect
of sentence is not absolute." Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa.
Super. 1999). A defendant "challenging the discretionary aspects of his sentence must
4 invoke [appellate] jurisdiction by satisfying a four-part test." Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010). In conducting the four-part test, the appellate
court analyzes
(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. [708]; (3) whether appellants 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). Id. at 170.
"The determination of whether there is a substantial question is made on a case -
by -case basis, and [the appellate court] will grant the appeal only when the
appellant advances a colorable argument that the sentencing judge's actions
were either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing process."
Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015).
Our courts have "held on numerous occasions that a claim of inadequate
consideration of [mitigating] factors does not raise a substantial question for [] review."
Haynes, supra, at 807; Commonwealth v. Buterbauuh, 91 A.3d 1247, 1266 (Pa. Super.
2014). Furthermore, "a sentencing court generally has discretion to impose multiple
sentences concurrently or consecutively, and a challenge to the exercise of that
discretion does not ordinarily raise a substantial question." Commonwealth v. Raven, 97
A.3d 1244, 1253 (Pa. Super. 2014). Moreover, "bald claims of excessiveness due to
the consecutive nature of sentences imposed will not raise a substantial question."
5 (Pa. Super. 2013). Rather, "[t]he Commonwealth v. Dodoe, 77 A.3d 1263, 1270 sentences may raise a substantial imposition of consecutive, rather than concurrent, such as where the aggregate question in only the most extreme circumstances, of the crimes and the length of sentence is unduly harsh, considering the nature
imprisonment." MOM, supra, at 171-72.
the Defendant has failed to Respectfully, the reviewing court should find that his sentence. The Defendant's aggregate raise a substantial question for review of provisions of the Sentencing Code, and it sentence was consistent with the sentencing underlie the sentencing process. did not conflict with the fundamental norms that that there exists a substantial question However, should the reviewing court conclude the reviewing court respectfully should find as to the appropriateness of the sentence, without merit because the aggregate sentence that the Defendant's allegation of error is in this case. imposed was justified by the totality of the circumstances
First, and most importantly, the Defendant was no stranger to this court. The
Mental Health Court ("MHC") program on Defendant became a participant in this court's program on two (2) burglary cases that were November 18, 2014, when he pled into the 2014-8943. At that time, the Defendant before this court at CC Nos. 2014-7169 and Kevin G. Sasinoski at CC Nos. 2010- was already on probation with the Honorable
6 15145, 2010-15147, 2010-15148, and 2010-14928 for four (4) other burglary cases.'
On December 4, 2014, Judge Sasinoski transferred the Defendant's 2010 cases to this
court so that it could assume supervision of the probationary sentences through MHC
court.
This court spent almost two (2) years supervising the Defendant on his six (6)
separate burglary cases. During the course of that supervision, the court met with the
Defendant almost two (2) dozen times, and it became well -familiar with his behavior,
personal background, criminal history, and need for rehabilitation. The Defendant
claims that his 2016 charges were only the result of a period of drug regression and that
such regression "is not uncommon in the recovery process" and "should not be a basis
for imposing a lengthy period of incarceration." (Concise Statement, p. 3).
Respectfully, this argument minimizes the nature of the Defendant's willful conduct, and
it substantially overlooks the various other reasons that the sentence was imposed.
The Defendant's lengthy sentence was not imposed to punish the Defendant
merely because he relapsed. Indeed, the Defendant relapsed several times throughout
his time in the MHC program, and he repeatedly violated various conditions of the
1 On December 13, 2011, Judge Sasinoski sentenced the Defendant on his 2010 cases as follows: At CC # 2010-15145, the Defendant was placed into the state intermediate punishment ("SIP") program for a period of 24 months and was ordered to serve a five (5) year term of probation. The Defendant received the same sentence at CC Nos. 2010-15147, 2010-15148, and 2010-14928. The SIP sentences were all ordered to be served concurrently with one another. The sentences of probation were ordered to run concurrently with one another as well. 7 example, at his MHC Review treatment programs in which he was participating. For was unsuccessfully Hearing on April 13, 2015, the court learned that the Defendant for "continued violations" of their discharged from the Lafayette House, a halfway house, provide a drug screen and also behavioral policy. Specifically, the Defendant refused to The Defendant then left had a female visitor who was not permitted to be at the facility. officer that he had the Lafayette House and ultimately admitted to his probation p. 2). His probation officer relapsed, using Vicodin. (Review Hearing ("RH"), 4/13/15,
also learned from the police that there was possible drug paraphernalia and urine at the
urine was thought to be residence where the Defendant had been staying. The the Defendant to pass a urine someone other than that of the Defendant to be used by resulted in immediate screen. The use of this "fake" or fraudulent urine would have expelled on this basis expulsion from the WIC program. The Defendant was not by the time the probation because the evidence of the fake urine was no longer present 12-13). officer went to recover it at Lafayette House. (Id. at 2-3,
behavior, the Defendant When the court confronted the Defendant about his for his violations. (Id. at 3- apologized for his mistakes and attempted to make excuses that his recent conduct would not be 5, 7, 10). The court instructed the Defendant
if he continued to violate the tolerated, and it specifically warned the Defendant that, of the program and given a terms of the MHC program, he would be revoked out (Id. at 3, 9-10, 12-13). lengthy state sentence due to his six (6) burglary convictions. the potential consequences of his The Defendant told the court that he understood in the MHC program. (Id. at 10, actions and assured the court that he wanted to stay
8 a 13). The court then afforded the Defendant another opportunity to participate in
different treatment program, this time at the Cash Club, with the hopes that the
Defendant's behavior would improve and that he would take the MHC program more
seriously.
Not even two (2) months later, the Defendant's probation officer informed the
court via email on May 13, 2015, that the Defendant tested positive for opiates at the
Cash Club. The Defendant admitted to the Cash Club that he used Percocet on May 8,
2015, and the Defendant also tested positive for Morphine on May 12, 2015. The court
also learned that the Defendant had left the Cash Club several times without
permission. However, instead of incarcerating him or revoking the Defendant out of the
MHC program for his drug use and violation of the program rules, the court ordered the
Defendant to undergo more intensive drug and alcohol treatment and gave him yet 7- another chance to work on and overcome his addiction issues. (RH, 5/18/15, pp. 2-3,
10).
Despite some indication that the Defendant was making headway in his recovery,
his probation officer again informed the court via email on June 2, 2015, that the
Defendant once again tested positive for opiates on June 1, 2015 at the Cash Club.
The providers at the Cash Club found a bottle of urine in his possession, and the
Defendant absconded from the Cash Club without permission after he provided a drug -
positive urine sample. A warrant was issued for the Defendant's arrest because his
9 considered to be a danger to himself and whereabouts were unknown, and he was the the warrant on June 3, 2015. Despite others. The Defendant was arrested on urine and a second allegation of a "fake" Defendant's drug use, behavior at Cash Club, with yet another opportunity to pursue sample, this court provided the Defendant long- for another treatment program, this one a treatment, placing him on the waiting list known as CORE. term (six (6) month) intensive program
over the course of the next few The Defendant showed some improvement the CORE program. He had positive months, and he was appearing to do well at 2015 and November 23, 2015. reviews at his MHC hearings on October 13, to the Defendant relapsed and admitted Unfortunately, however, shortly thereafter, use while at CORE. The Defendant's drug using K-2, a synthetic marijuana substitute, at the Waterfront one evening, which had even caused him to be found unconscious hospital. (RH, 1/11/16, pp. 2-3). This resulted in him being transported to the well privileges at CORE, but this court, as development caused the Defendant to lose himself. him yet another chance to rehabilitate as the CORE program, agreed to give that mistakes and indicated that he understood The Defendant again apologized for his 6-8). address his addiction issues. (Id. at 3-4, this would be his last opportunity to
to his recovery, receiving certificates of Thereafter, the Defendant applied himself the CORE program. On February 22, 2016, recognition and achievement from the program and was discharged. The Defendant successfully completed the CORE
10 Defendant was immediately moved into a recovery house, the Mt. Washington part- Recovery House, to continue addressing his addiction. He also began working on a time. While the Defendant appeared to be doing well at the Recovery House, his peer superficial basis, there were deep concerns about him because he was missing
mentoring meetings, which were arranged through CORE. A scant two (2) months via email after arriving at the recovery house, on April 29, 2016, the court was informed
that the Defendant was smoking K-2 at the Recovery House and that he had been morning inappropriately running around the neighborhood during the late night/early
hours of April 28, 2016 and April 29, 2016. (RH, 5/31/16, pp.2-3). The Defendant's and he behavior had frightened the neighbors and the residents of the recovery house,
was considered to be a high risk in the community. A warrant was issued for his arrest
by using on May 2, 2016 because he had again violated the terms of his MHC probation
illegal substances and leaving his court -ordered placement at the recovery house.
Before the Defendant could be picked up on his MHC probation violation warrant,
he committed two (2) new burglaries on May 9, 2016. This criminal conduct resulted in
5/31/16, p.3). the charges that were filed at CC Nos. 2016- 7999 and 2016-6379. (RH, enough, the As if his commission of two (2) additional burglary crimes was not serious dated May 9, Defendant had the audacity to publicly taunt the police in Facebook posts
2016 and May 10, 2016. (Id. at 5). The May 9, 2016 post read as follows: "Th[]y call
Tim[] mil th[] gingUrbrflad man. Catch m[] if u can. I'm running as fast as can.I
11 post stated: You for naw scOnary and a nuw stat[] fuck Pgh.2 The May 10, 2016
gotta b[] quicle th[]n that lol. Gingarbrfiad man I told y'aIl motharfucles just made the news Iflav[] m[] alon[]." (Id. at 5). To be sure, the Defendant famously at 3, 5). Given the headlines with his new crimes and Facebook postings.3 (Id. and his overall behavior in egregious nature of the Defendant's new criminal conduct, revoke him out of the MHC the MHC program, the MHC team unanimously agreed to
program.
this court is Having headed the MHC program for more than five (5) years, participants experience intimately and uniquely aware of the struggles that its MHC mental health issues. For when trying to battle their addictions, as well as address their but also works this reason, this court not only sympathizes with their struggles, by offering support, by especially hard to assist its participants during their relapses individual's unique needs, and attempting to specifically tailor recovery treatment to the in his or her recovery. The by providing appropriate monitoring to assist the defendant program unless the court has court does not resentence its participants out of the MHC unable to transition to a convinced itself that the participant is unwilling or genuinely
page at 2Posts retrieved from the Defendant's Facebook (emphasis (https://www.facebook.com/profile.php?id=100009760920629&fref=ts) added).
3 http://pittsburgh.cbslocal.com/2016/05/11/burglary-suspect-accused-of-taunting-police- 8/3/17); http://www.post- on-facebook-found-hiding-in-attic-arrested/ (last visited gazette.com/local/north/2016/05/19/Mount-Washington-burglary-suspect-known-as- (last visited 8/3/17); Gingerbread-Man-to-stand-trial-pittsburgh/stories/201605190142 http://www.wtae.com/article/pittsburgh-s-slippery-gingerbread-man-fugitive-tracked- (last visited 8/3/17). down-after-throwing-shade-on-facebooW7480034 12 to that a defendant is unwilling or unable sober, law-abiding lifestyle. This determination until this court has satisfied itself that every make a positive change is not made has been afforded the defendant. While available and appropriate treatment opportunity comfort fail out of the program, the court takes it is always upsetting to see participants its people, prior in knowing that it attempted to utilize every applicable resource to help
to revoking them from MHC.
of relapses and technical violations Accordingly, despite the Defendant's multiple and help him attempts to work with the Defendant the program, the court persisted in its so, this court repeatedly warned the Defendant that attain his treatment goals. In doing of his rules and his failure to take advantage his failure to abide by the program serious consequences, perhaps including treatment opportunities would result in time. (RH, 4/13/15, pp. 3, 9-13); (RH, 5/18/15, consecutive sentences and state prison full awareness of the consequences of any new and pp. 3-4). However, despite his to the use continued and his behavior escalated serious violations, the Defendant's drug advantage of burglaries in May of 2016. He took point that he committed two (2) new an him, while he repeatedly demonstrated this court's willingness to work with recovery seriously. unwillingness to take his treatment and
society at risk and resulted in the Moreover, the Defendant's behavior placed also the public. His new criminal conduct victimization of innocent members of figures. The disregard for the law and authority demonstrated a complete and utter
13 and and serious crimes while he was on probation Defendant not only committed new boldly put his crimes on public display, while he had a warrant out for his arrest, he by to believe that his behavior was motivated mocking and taunting the police. It is hard the acknowledged prior relapses and accepted a simple relapse given that he generally the assistance. In this instance, however, the Defendant remained on court's treatment hid from law enforcement, did not seek run, committed new burglaries, actively out at law enforcement. By doing so, the treatment assistance and publicly lashed his respect for the law, this court, and Defendant highlighted his complete lack of crimes. This a substantial lack of remorse for his treatment providers and demonstrated behavior. was criminal behavior, not relapse
at his sentencing on October 13, For these reasons, the Defendant's allocution actions court focused more on the Defendant's 2016 had little impact on this court. This as opposed to his proffered excuses for his over the course of his MHC participation, pp. 6-16). The Defendant's actions behavior. (Sentencing Hearing, 10/13/16, or incapable of transitioning to a law-abiding communicated that he is either unwilling sober, law- the Defendant's failure to transition into a life. Whichever might be the case,
opportunities that he was afforded makes him a abiding citizen despite the numerous Defendant's continued use and abuse of Illegal threat to both himself and society. The and violence from others. As far as society substances subjects him to risk of overdose new crimes time of sentencing that the Defendant's is impacted, this court noted at the of security and material possessions, but their sense take from his victims not only their their homes. should feel those things most acutely, safety as well, in the place that they
14 despite receiving drug and (Id. at 14-16, 26). The Defendant's repeated burglaries,
and the support of Justice Related Services, alcohol treatment, mental health treatment made the conscious choice to engage probation and this court, make it clear that he has individuals and society as a whole. in criminal behavior and continue to victimize
for his past criminal conduct The Defendant's prior, more lenient sentences and that is yet another reason why a clearly failed to deter him from criminal activity, of The Defendant had been convicted lengthier sentence was warranted at this time. few years, and his demonstrated failure to eight (8) burglary cases in a span of only a though he was fully aware that much lengthier be deterred from criminal activity, even criminal behavior, further makes him a sentences awaited him if he continued Ms
danger to society.
is not entitled to a concurrent sentencing Finally, the court notes that a defendant certainly was not deserving of a "volume scheme, and the Defendant in this case that involved, inter alia, breaking into a victim's discount" for committing serious crimes head with a brick, and then robbing him of apartment, repeatedly beating him over the Hoaq, 665 A.2d 1212, 1214 (Pa. Super. 1995) his belongings. See Commonwealth v. in imposing a sentence the court has ("The general rule in Pennsylvania is that it concurrent with or consecutive to other discretion to determine whether to make previously imposed."); sentences then being imposed or other sentences 22 (Pa. 1994) (raising a concern that Commonwealth v. Anderson, 650 A.2d 20,
15 criminal acts that arose out of defendants not be given "volume discounts" for multiple
one larger criminal transaction).
to twelve (12) years of Accordingly, the aggregate sentence of six (6) in this case. In imprisonment was justified by the totality of the circumstances the eight (8) burglary cases that determining what sentence would be appropriate for the statutory factors set forth were before this court for sentencing, the court considered knowledge of the Defendant's history, in 42 Pa. C.S.A. §9721(b). Given its detailed
this court made an informed decision background, behavior, and rehabilitative needs, to address the Defendant's that a lengthy sentence was appropriate and necessary him with the necessary time to address continued criminal conduct, as well as provide and temptations of the his mental health and addiction issues, without the distractions the Defendant's allocution at community at large. While the court considered circumstances, it found that sentencing and the mitigating aspects of the Defendant's considerations outlined above. the mitigating factors did not outweigh other relevant The Defendant's overall conduct (Sentencing Transcript, 10/18/16, pp. 10-14). a disinterest in meaningfully demonstrated a serious disregard for the law and turn, created a substantial need to addressing his rehabilitative needs, and this, in demonstrated failure to be protect the public from his behavior. The Defendant's danger that he poses to society. For all of deterred from criminal activity highlights the in imposing sentence. these reasons, this court did not abuse its discretion
16 II. CONCLUSION
The Defendant's contention on appeal is without merit. Based on the foregoing,
the sentence imposed was not an abuse of discretion. Accordingly, this court
respectfully requests that the sentence in this case be upheld.
BY THE COURT: