Com. v. Saunders, C.

• Court: Superior Court of Pennsylvania
• Decided: August 29, 2014
• Docket: 1504 EDA 2013
• Status: Unpublished

Opinion

J-S47015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CHARLES L. SAUNDERS

Appellant No. 1504 EDA 2013

Appeal from the Judgment of Sentence April 18, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0903039-2006

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.: FILED AUGUST 29, 2014

Appellant, Charles L. Saunders, appeals from the April 18, 2013

judgment of sentence of three and one-

imposed following the revocation of his probation. After careful review, we

affirm.

The trial court summarized the relevant factual and procedural history

of this case as follows.

On September 15, 2008, [A]ppellant entered a plea of nolo contendre to indecent assault, simple assault and criminal trespass before the Honorable Karen Shreeves Johns and was sentenced to time

ordered to submit to random drug screens and a stay away order was issued for the victim. On July

probation, but ordered that [A]ppellant could be released to New Jerusalem Now drug treatment J-S47015-14

program when a bed became available. Appellant was transported to New Jerusalem Now on October 30, 2009. probation/parole was again revoked[;] however, sentencing was deferred pending the results of a mental health evaluation. Based upon the results of

transferred to Mental Health Court which is administered and supervised by th[e trial c]ourt.

On July 1, 2010, [A]ppellant was sentenced to

program when a bed became available. On July 21, 2011 [A]ppellant was again found in violation and re-

long[-]term inpatient program when a bed became available. On October 13, 2011, [A]ppellant was paroled to an inpatient treatment program at Walnut Manor House and the case was listed for status [conference] on November 17, 2011. On that date, [A]ppellant failed to appear in court as scheduled and a bench warrant was issued[ for his arrest]. On January 5, 2012, following a hearing, [A]ppellant was found in violation of his parole and sentenced to

On August 1, 2012, [A]ppellant was released to an inpatient treatment program at Gaudenzia New Beginnings (Gaudenzia). On September 19, 2012,

behaviors had been escalating. On October 9, 2012, Officer Ross received a report from Gaudenzia that [A]ppellant had become verbally and physically aggressive towards staff. Then[,] on October 16, 2012, Officer Ross received information from Gaudenzia that [A]ppellant was attempting to contact the victim of his sexual assault through the mail, a violation of the stay[-]away order. Therefore, Officer Ross took [A]ppellant into custody and a violation hearing was scheduled. However, before the hearing could take place, [A]ppellant was

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determined to be incompetent[] and remained hospitalized until he was found to be competent on April 11, 2013. On April 18, 2013, a violation hearing was conducted where the aforementioned evidence was presented. Appellant was found in violation of his probation and sentenced to an

incarceration and removed from the supervision of Mental Health Court.

Trial Court Opinion, 8/5/13, at 1-3 (internal citations omitted). A timely

motion to reconsider sentence was filed on April 29, 2013, which was left

unresolved by the trial court.1 This timely notice of appeal followed on May

17, 2013.2

On appeal, Appellant raises the following issue for our review.

1. Did [] the [trial] court fail to properly weigh

cant health issues) versus the safety of the public, find violations on the basis of evidence of question probative value and imposes an excessive and unreasonable sentence which was disproportionate to those alleged violations, and impose a sentence contrary to the norms ____________________________________________ 1 A motion to modify or reconsider sentence following revocation of probation must be filed within ten days of sentencing. See Pa.R.Crim.P. a sentence imposed after a revocation shall be filed within 10 days of the date of imposition he filing of a motion to modify sentence will not toll the 30-day appeal period[ ich was a

timely. See 1 Pa.C.S.A. § 1908 (providing that when the last day of a calculated period of time falls on a Saturday or Sunday, such day shall be omitted from the computation). 2 Appellant and the trial court have timely complied with Pa.R.A.P 1925.

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of sentencing (including the requirements for a sentence of total incarceration pursuant to 42 Pa.C.S.[A.] § 9771(c)), where the [trial] court

imprisonment] for technical violations?

ief at 4.

Our standard of review in assessing a sentence imposed following the

revocation of probation is well settled.

In considering an appeal from a sentence imposed following the revocation of probation, our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. Revocation of a probation sentence is a matter committed to the sound disc will not be disturbed on appeal in the absence of an error of law or an abuse of discretion.

Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. Super. 2010)

is not merely an error of

judgment, but if in reaching a conclusion the law is overridden or misapplied

or the judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias, or ill will, as shown by the evidence or the record,

Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.

Super. 2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa.

revocation proceedings is encompassed b

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Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc).

whether this appeal is properly before us. Pennsylvania Rule of Appellate

each ruling or error that the appellant intends to challenge with sufficient

The Rule also

deemed to include every subsidiary issue contained therein which was raised

Id. at 1925(b)(4)(v). Finally, any issues not raised in

accordance with Rule 1925(b)(4) will be deemed waived. Id. at

1925(b)(4)(vii).

Our Supreme Court has held that Rule 1925(b) is a bright-line rule.

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the

ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for

violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an

1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the rule. We yet again repeat the principle first stated in

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[Commonwealth v.] Lord, [719 A.2d 306 (Pa.

preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) Id.] at 309

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

Of the four separate claims Appellant raises in the instant appeal, the

Commonwealth avers two are waived. First, the Commonwealth argues that

Appellant waived his claim, that the trial court failed to consider his

rehabilitative needs because he did not include it within his Rule 1925(b)

o the trial

Commonwealth v. Johnson, 51 A.3d

237, 246 (Pa. Super. 2012) (citation omitted), appeal denied, 63 A.3d 1245

is also waived for failure to include it in his Rule 1925(b) statement.

see also Hill, supra

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raised in the Appell

Therefore, we deem this claim waived as well.

The remaining two issues raised by Appellant are that his sentence

was disproportionate to the technical nature of his violations and that the

trial court imposed a sentence of total incarceration without complying with

-14. We note that Appellant

arguments pertain to the discretionary aspects of his sentence.

Commonwealth v.

Edwards, 71 A.3d 323, 329 (Pa. Super. 2013) (citation omitted), appeal

denied, 81 A.3d 75 (Pa

a sentence must be considered a petition for permission to appeal, as the

Commonwealth v. Ahmad,

961 A.2d 884, 886 (Pa. Super. 2008).

[Therefore, b]efore we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether

reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on

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the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Edwards, supra at 329-330 (citations omitted).

Herein, Appellant first argues that the sentence was disproportionate

to the technical natur -14. Second,

Appellant argues that trial court imposed a sentence of total incarceration

without complying with Section 9771(c). Id. at 12-

are in compliance with the technical requirements to challenge the

discretionary aspects of a sentence. See Edwards, supra at 330.

Appellant has filed a timely notice of appeal, raised these claims in a timely

motion for reconsideration of sentence, and has included a separate Rule

2119(f) statement. See Therefore, we turn to the

substantial question analysis on these claims.

evaluated on a case-by- See Edwards, supra (citations

A substantial question exists only when the appellant advances a

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie Id.

(citations omitted).

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at 15. This Court has held that that a claim of

excessiveness of sentence does not raise a substantial question so as to

Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999), appeal

denied, 747 A.2d 366 (Pa. 1999). However, a claim that a particular

probation revocation sentence is excessive in light of its underlying technical

Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007) (citations

omitted).

a substantial question. Commonwealth v. Malovich, 903 A.2d 1247, 1253

(Pa. Super. 2006). Accordingly, Appellant has raised two substantial

questions for our review.

stated specific reasons for

being transferred to Mental Health Court, his probation was revoked for technical violations on July 21, 2009[,] and February 3, 2010 by Judge Shreeves Johns. He was found in technical violation of his parole or probation for noncompliance with his court[-]ordered treatment programs on three occasions: on July 21, 2011, probation was revoked and [A]ppellant was re-sentenced to 6-23 months

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parole was revoked and [A]ppellant was sentenced

probation; and, the instant probation revocation, April 18, 2013, where the [trial c]ourt found that [A]ppellant had again violated the terms of his probation. Probation is a rehabilitative device to be used to assist the offender in his adjustment to life within society. Over the course of the case, [A]ppellant was placed in four different rehabilitation programs without success. Based on the number of rehabilitation programs [A]ppellant had failed to successfully complete, the [trial c]ourt determined that probation was not an effective tool for probation was incapable of deterring [A]ppellant from future antisocial behavior, and that a state sentence of incarceration was warranted.

Trial Court Opinion, 8/5/13, at 3-4 (internal citations omitted).

Clearly, the trial court had articulable reasons for imposing a sentence

of state incarceration. See id.

technical in nature, it does not follow that they are de minimis. Rather, the

trial court reasoned these violations were flagrant and indicative of the

Ap See

Carver, supra

revocation and a sentence of incarceration when such violations are flagrant

Moreover, the trial court stated on

placements that [Appellant has] left or have been provided for [Appellant

,

4/18/13, at 16. Based on these considerations, we conclude the trial court

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did not abuse its discretion in imposing a three and one-

state incarceration. See Williams, supra

argument also fails.

Lastly, Appellant asserts the trial court failed to comply with Section

-21. Section 9771(c) provides that the trial

court may impose a sentence of total confinement upon revocation of a

sentence of probation if one of the three enumerated circumstances applies.

The statute provides, in relevant part, as follows.

§ 9771. Modification or revocation of order of probation.

(c) Limitation on sentence of total confinement. -- The court shall not impose a sentence of total confinement upon revocation unless it finds that:

(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.

42 Pa.C.S.A § 9771(c).

total confinement after a probation revocation, the sentencing court is to

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Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citations omitted), appeal

denied, 608 Pa. 661 (Pa. 2010).

[Appe

complete his treatment program. N.T., 4/18/13, at 16; see also Trial Court

incapable of deterring [Appellant]

4/18/13, at 18. Accordingly, the trial court had the discretion to impose

incarceration to vindicate its authority. See Trial Court Opinion, 8/5/13, at

3-

where [A]ppellant had not complied with previous judicial efforts such as

citing Malovich, supra at

1254. Therefore, we conclude that the trial court complied with Section

9771(c)(3) when it sentenced Appellant to total confinement following the

revocation of his probation, and as such, did not abuse its discretion. See

Williams, supra

ents are

2013 judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/2014

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