Com. v. Savage, G.

• Court: Superior Court of Pennsylvania
• Decided: April 13, 2017
• Docket: Com. v. Savage, G. No. 616 WDA 2016
• Status: Unpublished

Opinion

J-S03018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GREGORY T. SAVAGE, JR.

Appellant No. 616 WDA 2016

Appeal from the Judgment of Sentence dated January 12, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014978-2010

BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED APRIL 13, 2017

Appellant, Gregory T. Savage, Jr., appeals from a sentence imposed by

the Court of Common Pleas of Allegheny County after he violated his

probation by possessing a controlled substance with an intent to distribute it

— a crime for which he was convicted in Armstrong County. He contends

that his revocation sentence of two to five years’ imprisonment was

excessive and unreasonable because the trial court (1) was biased against

him, and (2) failed to consider factors mandated by the Sentencing Code.

We affirm.

We state the facts as set forth by the trial court:

On May 16, 2011, Appellant . . . pled guilty to one count of Delivery of Cocaine, one count of Possession of a Controlled ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S03018-17

Substance with Intent to Deliver (“PWID”) and one count of Possession of a Controlled Substance, all after [a] prior conviction. This Court sentenced Appellant on the Delivery count to 15 to 30 months incarceration with 3 years of consecutive probation. On January 12, 2016, [t]his Court found Appellant to be a convicted violator of his conditions of probation and resentenced him to [a] period of incarceration of [2] to [5] years.

Trial Ct. Op., 8/23/16, at 1.1 The trial court denied Appellant’s post-

sentence motion, and Appellant appealed. Id.

Appellant raises the following issue:

Was the two to five-year sentence of incarceration imposed manifestly excessive, unreasonable, and an abuse of discretion where the sentence was imposed out of personal frustration, bias, and ill-will towards [Appellant], rather than in contemplation of [Appellant’s] rehabilitative needs and his nature and characteristics?

Appellant’s Brief at 4.

“[A] challenge to the discretionary aspects of a sentence is not

appealable as of right.” Commonwealth v. Colon, 102 A.3d 1033, 1042

(Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015). Before we

____________________________________________

1 Appellant also was sentenced by the Armstrong County court to two to five years’ incarceration for his PWID conviction there. As noted, it was that crime that resulted in the instant revocation sentence of two to five years’ incarceration. Because the revocation sentence was made consecutive to the Armstrong County sentence, the trial court’s opinion accurately noted that Appellant effectively received an “aggregate” sentence of four to ten years’ imprisonment. See Trial Ct. Op., 8/23/16, at 2. See also Commonwealth’s Brief at 4 n.2.

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exercise jurisdiction to reach the merits of Appellant’s claim, we must

determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’s brief includes a concise statement of the 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.

Id. at 1042-43. Only if the appeal satisfies each of these four requirements

may we proceed to decide the substantive merits of Appellant’s claim. Id.

at 1043. Our review of the record discloses that Appellant has met the first

three of these requirements, and we therefore turn to whether he has raised

a substantial question regarding his sentence.

“A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d at 1263, 1268 (Pa. Super. 2013)

(quotation marks and citation omitted). “[A] defendant may raise a

substantial question where he receives consecutive sentences within the

guideline ranges if the case involves circumstances where the application of

the guidelines would be clearly unreasonable, resulting in an excessive

sentence; however, a bald claim of excessiveness due to the consecutive

nature of a sentence will not raise a substantial question.” Id. at 1270. In

the case at hand, we conclude Appellant has stated a substantial question,

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except to the extent he baldly challenges the consecutive nature of his

sentence. See Colon, 102 A.3d at 1042-43; Dodge, 77 A.3d at 1270.

In Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014), our

Supreme Court set forth the following regarding revocation sentences:

[C]ontrary to when an initial sentence is imposed, the Sentencing Guidelines do not apply, and the revocation court is not cabined by Section 9721(b)'s requirement 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. § 9721. See Commonwealth v. Reaves, 592 Pa. 134, 150, 923 A.2d 1119, 1129 (2007) (citing 204 Pa.Code. § 303.1(b) (Sentencing Guidelines do not apply to sentences imposed as result of revocation of probation)).

Upon revoking probation, “the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.” 42 Pa.C.S. § 9771(b). Thus, upon revoking probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence, although once probation has been revoked, the court shall not impose a sentence of total confinement 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. § 9771(c).

Moreover, 42 Pa.C.S. § 9721(b) specifies that in every case following the revocation of probation, “the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” See also Pa.R.Crim.P. 708(C)(2) (indicating

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at the time of sentence following the revocation of probation, “the judge shall state on the record the reasons for the sentence imposed.”).

However, following revocation, a sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statutes in question. Simply put, since the defendant has previously appeared before the sentencing court, the stated reasons for a revocation sentence need not be as elaborate as that which is required at initial sentencing. The rationale for this is obvious. When sentencing is a consequence of the revocation of probation, the trial judge is already fully informed as to the facts and circumstances of both the crime and the nature of the defendant ....

Pasture, 107 A.3d at 27-28 (brackets and footnote omitted).

After a careful review of the record, the parties’ briefs, and the trial

court’s decision, we affirm on the basis of the decision of the Honorable Jill

E. Rangos. See Trial Ct. Op. at 5-6 (holding Appellant’s subsequent

conviction for PWID while on probation, his absconding from police, and his

background as a drug dealer justified revocation sentence of incarceration).2

Accordingly, we affirm the judgment of sentence. The parties are instructed

to include a copy of the trial court’s August 23, 2016 opinion to any filing

referencing this decision.

Judgment of sentence affirmed.

2 We do not adopt the trial court’s statement that it imposed a sentence of four to ten years’ incarceration. For the reasons noted in footnote 1 of this memorandum, that statement is imprecise and potentially confusing. The sentence imposed by the trial court was two to five years’ incarceration.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2017

-6- Circulated 03/31/2017 04:09 PM 1-0PINION

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

. - ~.. I " ; ' . . ·\ COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVLS,ION,., .. -. . v. CC No. 201014978

GREGORY SAVAGE

Appeal of: OPINION

GREGORYSAVAGE, Honorable Jill E. Ranges Appellant Room 533 436 Grant Street Pittsburgh, PA 15219

Copies to:

Stephanie Noel Office of the Public Defender 400 County Office Building 542 Forbes A venue Pittsburgh, PA 15219-2904

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-·-r,- ' (J:) f - <.J .....- ll LI J ,·1 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION

v. CC No. 201014978

Appeal of:

GREGORY SAVAGE Appellant OPINION

RANGOS,J. August 23, 2016

On May 16, 2011, Appellant, Gregory Savage, pled guilty to one count of Delivery of Cocaine,

one count of Possession of a Controlled Substance with Intent to Deliver ("PWID") and one count

of Possession of a Controlled Substance, all after prior conviction. This Court sentenced Appellant

on the Delivery count to 15 to 30 months incarceration with 3 years of consecutive probation. On

January 12, 2016, This Court found Appellant to be a convicted violator of his conditions of probation

and resentenced him to an aggregate period of incarceration of 4 to 10 years. Appellant's Post

Sentence Motion was denied on February 11, 2016. Appellant filed a Notice of Appeal on April 29,

20161 and a Concise Statement of Errors Complained Of on May 20, 2016.

MATTERS COMPLAINED OF ON APPEAL

Appellant asserts that the Court erred in imposing a sentence of confinement for a period of

4 to 10 years as it was manifestly excessive, unreasonable and an abuse of discretion, as well as contrary

1 Appellant filed both the Post-Sentence Motion and the Notice of Appeal late and this Court accepted them nun» pro tune.

2 to the Sentencing Code and the fundamental norms underlying the sentencing process. Appellant

alleges that this Court failed to consider Appellant's personal character, background and rehabilitative

needs in sentencing him consecutively to a sentence in another county. (Statement of Matters

Complained of on Appeal, p. 3-4).

DISCUSSION

Appellant challenges the validity of his resentencing following a violation of probation under

42 Pa.C.S. § 9771, which states:

§ 9771. Modification or revocation of order of probation

(a) General rule.--The court may at any time terminate continued supervision or lessen or increase the conditions upon which an order of probation has been imposed.

(b) Revocation.-The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.

(c) Limitation on sentence of total confinement.s-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.

(d) Hearing required.s-There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation. Probation may be eliminated or the term decreased without a hearing.

42 Pa.C.S. § 9771.

Appellant alleges this Court failed to consider statutory sentencing factors, which is a challenge

to the discretionary aspects of his sentence. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super.

2012). "[T[here is no absolute right to appeal when challenging the discretionary aspect of a sentence." 3 Commonwealth v. Crump1 995 A.2d 1280, 1282 (Pa.Super.2010); 42 Pa.C.S. § 9781(b). An "[a)ppeal is

permitted only after this Court determines that there is a substantial question that the sentence was

not appropriate under the sentencing code." Cmmp, at 1282. The determination of whether a

particular issue constitutes a "substantial question" can only be evaluated on a case by case basis.

Commonwealth v. House, 537 A.2d 361, 364 (Pa.Super. 1988). It is appropriate to allow an appeal "where

an appellant advances a colorable argument that the trial judge's actions were: (1) inconsistent with a

specific provision of the sentencing code; or (2) contrary to the fundamental norms which underlie

the sentencing process." Commomvealth v. Losch, 535 A.2d 115, 119-120 n. 7 (Pa.Super. 1987).

An allegation that a sentencing court "failed to consider" or "did not adequately consider" certain factors does not raise a substantial question that the sentence was inappropriate. Commonwealth v. McKiel 427 Pa.Super. 561, 629 A.2d 1012 (1993); Commonwealth u. Williams1 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en bane). Such a challenge goes to the weight accorded the evidence and will not be considered absent extraordinary circumstances. McKie!, 427 Pa.Super. at 564, 629 A.2d at 1013.

Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995). Therefore, Appellant's allegation of error,

that this Court failed to adequately apply all of the required sentencing factors, does not raise a

substantial question for appellate review. Moreover, a bald claim of excessiveness due to the

consecutive nature of a sentence will not raise a substantial question. See Commonwealth v. Moury1 992

A.2d 162, 171-172 (Pa.Super.2010). However, in an abundance of caution, will address the merits of

Appellant's claim.

The standard of review with respect to sentencing is whether the sentencing court abused its

discretion. Commonwealth u: Sm.ith, 673 A.2d 893, 895 (Pa. 1996). A court will not have abused its

discretion unless "the record discloses that the judgment exercised was manifestly unreasonable, or

the result of partiality, prejudice, bias or ill-will." Id. It is not an abuse of discretion if the appellate

court may have reached a different conclusion. Grady v. Frito-Lay,Inc., 613 A.2d 1038, 1046 (Pa. 2003).

Furthermore, at resentencing the Sentencing Guidelines do not apply.

4 [Cjontrary to when an initial sentence is imposed, the Sentencing Guidelines do not apply, and the revocation court is not cabined by Section 9721 (b)'s requirement 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.CS.§ 9721. See Commonwealth v. Reaver, 592 Pa. 134, 150, 923 A.2d 1119, 1129 (2007) (citing 204 Pa.Code. § 303.l(b) (Sentencing Guidelines do not apply to sentences imposed as result of revocation of probation)).

Commonwealth_v. Pasture, 107 A.3d 21, 27 (Pa. 2014).

Under 42 Pa.CS. § 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; (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 this court. See Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa.Super.2001). A sentencing

court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question, but the record as a whole must reflect the sentencing court's

consideration of the facts of the crime and character of the offender. Commonwealth v. Malovich, 903

A.2d 1247 (Pa.Super.2006). In addition, the resentencing court is giving great discretion and is bound

only by the statutory maximum.

We emphasize a trial court does not necessarily abuse its discretion in imposing a seemingly harsher post-revocation sentence where the defendant received a lenient sentence and then failed to adhere to the conditions imposed on him. See Reaves, 592 Pa. at 138 n. 5, 923 A.2d at 1122 n. 5. In point of fact, where the revocation sentence was adequately considered and sufficiently explained on the record by the revocation judge, in light of the judge's experience with the defendant and awareness of the circumstances of the probation violation, under the appropriate deferential standard of review, the sentence, if within the statutory bounds, is peculiarly within the judge's discretion.

Pasture, .r11pra, at 28-29.

At the time of his original plea, on September 18, 2012, Appellant had a 5 Prior Record Score

("PRS") and was on State parole for a prior drug conviction. Nevertheless, this Court, sentenced

Appellant to a term of 15 to 30 months, a sentence in the mitigated range of the Sentencing Guidelines.

5 Upon revocation, this Court imposed a standard range sentence, which carries its own presumption

of reasonability. Commonweqlth o. Walls,926 A.2d 957, 964-965 (Pa. 2007).

Appellant violated his probation with a new conviction in Armstrong County of PWID one

pound of cocaine and PWID heroin for no further penalty. (Transcript of Probation Violation

Hearing on January 12, 2016, hereinafter V'I', at 2) He also was on run for a period of time. Id.

Appellant argued at his violation hearing that the Armstrong conviction for PWID of one pound of

cocaine and also heroin was really for personal use exclusively, yet the probation officer testified that

Appellant did not test positive for any illegal substances during the course of his supervision. (VT 7-

8) Contrary to Appellant's assertion, this Court considered Appellant's character and background and

determined that Appellant is a drug dealer who refuses to comply with the reasonable rules of society,

specifically as they pertain to the possession and selling of illegal substances. Thus, this Court did not

err in sentencing him to a period of 4 to 10 years.

CONCLUSION

For all of the above reasons, no reversible error occurred and the findings and rulings of this

Court should be AFFIRMED.

BY THE COURT:

6 CERTIFICATEOF SERVICE

The undersigned hereby certifies that a true and correct copy of this OPINION was mailed

to the following individuals by first class mail, postage prepaid on the 23rd day of August 2016.

Stephanie Nod Office of the Public Defender 400 County Office Building 542 Forbes Avenue Pittsburgh, PA 15219-2904

Michael Streily Office of the District Attorney 401 County Courthouse Pittsburgh, PA 15219

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