Com. v. Sickler, W.

• Court: Superior Court of Pennsylvania
• Decided: August 14, 2023
• Docket: 1446 WDA 2022
• Status: Unpublished

Opinion

J-S22007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WALTER SICKLER : : Appellant : No. 1446 WDA 2022

Appeal from the Judgment of Sentence Entered October 17, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000062-2020

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY OLSON, J.: FILED: AUGUST 14, 2023

Appellant, Walter Sickler, appeals from the judgment of sentence

entered October 17, 2022, as made final by the denial of his post-sentence

motion on October 28, 2022, following the revocation of his probation. We

affirm.

On August 25, 2020, Appellant pled guilty to indecent assault – person

less than 13-years-old, endangering the welfare of a child, and corruption of

minors.1 That day, the trial court sentenced Appellant to an aggregate term

of seven to 14 months’ incarceration, followed by five years’ probation. The

trial court also classified Appellant as a Tier III registrant under the Sexual

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1 18 Pa.C.S.A. §§ 4304(a)(1), 3126(a)(7), and 6301(a)(1)(ii), respectively. J-S22007-23

Offender’s Registration and Notification Act (“SORNA”),2 thereby subjecting

him to SORNA’s lifetime registration requirements.

On March 26, 2021, Appellant was incarcerated on a probation-violation

detainer. On April 5, 2021, a Gagnon I3 hearing was held, wherein the trial

court provided the following summary of Appellant’s alleged probation

violations:

Since [Appellant’s] parole [closed], he has been in treatment. We had a least one compliant review. And then, on March [15, 2021], he was administered a denial polygraph, which he failed.

In addition to that, he made some disclosures that are concerning and also violate his supervision conditions. Ongoing drug and alcohol use, as well as viewing pornography.

In addition to that, in speaking with his probation officer, [Appellant] indicated that he was having contact with minors and his supervision was described as being rather lackadaisical.

[Appellant] resides with this brother, who has pending charges as well with another judge in my building, and is on supervision with [p]retrial [s]ervices on an ankle bracelet at this time, which is not an approved residence.

N.T. Hearing, 4/5/21, at 2-3. Appellant did not contest any of the allegations

set forth by the trial court. Id. at 3. Appellant’s probation officer then

recommended that, prior to his release from incarceration, he be enrolled in ____________________________________________

2 42 Pa.C.S.A. §§ 9799.10 to 9799.41.

3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth

v. Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining that, when a parolee or probationer is detained pending a revocation hearing, due process requires a determination at the pre-revocation hearing (Gagnon I hearing) of probable cause to believe a violation was committed, and upon finding of probable cause, a second, more comprehensive hearing (Gagnon II hearing) follows before the trial court makes its final revocation decision).

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the diversion program, and they “provide [Appellant with] an approved home

plan.” Id. at 4. The trial court adopted the officer’s recommendation,

indicating its desire that Appellant be placed in Steadfast, a boarding house,

because it imposed supervision. Id. at 9-10. Thereafter, Appellant was

released from incarceration and placed in Steadfast. N.T Hearing, 3/21/22,

at 2.

On February 23, 2022, Appellant was again incarcerated on a

probation-violation detainer. A Gagnon I hearing was held on March 21,

2022. It was alleged that Appellant committed a number of probation

violations, including, lying to his probation officer about attending sex offender

treatment; having a cellular telephone with internet capabilities; using the

cellular telephone to visit “numerous websites regarding teenage girls, some

of them quite graphic;” having inappropriate contact with minors, including

exchanging money for sexual favors; and obtaining and consuming marijuana

provided to him by his minor daughter. N.T. Hearing, 3/21/22, at 2-4, and 7.

Upon review, the trial court concluded that, while it was “very clear that

[Appellant] need[ed] treatment,” it was “concerned that the level of

commitment to deviant behavior [was] quite high.” Id. at 6. As such, the

trial court scheduled a Gagnon II hearing, ordered a pre-sentence

investigation report (“PSI”) and directed Appellant to undergo a psychiatric

evaluation. Id. at 9.

Appellant’s Gagnon II hearing was held on October 17, 2022. At the

outset, the trial court reiterated Appellant’s alleged violations, listed above.

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N.T. Hearing, 10/17/22, at 1-3. Thereafter, Appellant’s probation officer

stated that, in light of the “obviously significant” violations, he recommended

imposing a “[s]tate-length sentence.” Id. at 3. Ultimately, the trial court

adopted the probation officer’s recommendation, revoked Appellant’s

probation, and sentenced him to an aggregate term of two to four years’

incarceration, followed by three years’ probation. Id. at 10-12. Appellant

filed a post-sentence motion on October 27, 2022, which the trial court denied

the next day. This timely appeal followed.

Appellant raises the following issue on appeal:

Whether the trial court abused its sentencing discretion by failing to apply all relevant sentencing criteria, including the protection of the public, the gravity of the offense, and [Appellant’s] character and rehabilitative needs, as required by 42 Pa.C.S.A. § 9721(b)?

Appellant’s Brief at 6 (superfluous capitalization omitted).

“[Our] scope of review in an appeal from a revocation [sentence]

includes discretionary sentencing challenges.” Commonwealth v.

Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). “An abuse of

discretion 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, discretion is abused.” Commonwealth v.

Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citation omitted),

appeal denied, 8 A.3d 341 (Pa. 2010).

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This Court previously explained:

It is well-settled that “the right to appeal a discretionary aspect of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the discretionary aspects of a sentence, we should regard his[, or her,] appeal as a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his[, or her,] sentence must invoke this Court's jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether appellant [] 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, [see] 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).

[Moury, 992 A.2d] at 170 [(citation omitted)]. We evaluate on a case-by-case basis whether a particular issue constitutes a substantial question about the appropriateness of sentence. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original

brackets omitted). A substantial question exists when an appellant presents

“a colorable argument that the sentence imposed is either [(1)] inconsistent

with a specific provision of the sentencing code or [(2)] is contrary to the

fundamental norms which underlie the sentencing process.” Commonwealth

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v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d

825 (Pa. 2011) (quotation omitted).

Herein, Appellant filed a timely notice of appeal, preserved his

sentencing challenge by filing a post-sentence motion, and included a Rule

2119(f) concise statement in his appellate brief. See Appellant’s Brief at

13-16. Moreover, Appellant has raised a substantial question for our review

by asserting that the trial court “fail[ed] to consider relevant sentencing

criteria, including the protection of the public, the gravity of the underlying

offenses and violation, and [Appellant’s] character, personal history and

rehabilitative needs . . . as required by 42 Pa.C.S.A. § 9721(b).” Appellant’s

Brief at 15; see Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.

2012) (explaining that an allegation that “the trial court failed to consider

relevant sentencing criteria, including the protection of the public, the gravity

of the underlying offense, and the rehabilitative needs of [the a]ppellant, as

42 Pa.C.S.A. § 9721(b) requires,” presents a substantial question); see also

Commonwealth v. Derrikson, 242 A.3d 667, 680 (Pa. Super. 2020);

Commonwealth v. Serrano, 150 A.3d 470, 473 (Pa. Super. 2016) (accord).

Having determined that Appellant has met these threshold

requirements, we proceed to review the merits of his appeal. “Revocation of

a probation[ary] sentence is a matter committed to the sound discretion of

the trial court[,] and that court's decision will not be disturbed on appeal in

the absence of an error of law or an abuse of discretion.” Commonwealth

v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation omitted), aff’d., 44

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A.3d 58 (Pa. 2012) (quotation omitted). Upon revocation of probation, a

sentencing court has all of the sentencing options that existed at the time of

the original sentence. 42 Pa.C.S.A. § 9771(b).

In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference.

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)

(citation omitted).

[However,] in all cases where the court “resentences an offender following 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.” Failure to comply with these provisions “shall be grounds for vacating the sentence or resentence and resentencing the defendant.”

Cartrette, supra at 1041, quoting 42 Pa.C.S.A. § 9721(b). “A [trial] 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. Crump, 995 A.2d 1280, 1283

(Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010). Importantly,

“where the sentencing judge had the benefit of a [PSI] report, it will be

presumed that he or she was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

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statutory factors.” See e.g., Commonwealth v. Clarke, 70 A.3d 1281, 1287

(Pa. Super. 2013) (quotation omitted).

A review of the certified record in this matter reveals the following. At

the outset of the October 17, 2022 Gagnon II hearing, the trial court

indicated that it received Appellant’s PSI, psychiatric evaluation, and a

recommendation provided by Justice Related Services (“JRS”). N.T Hearing,

10/17/22, at 2. Then, the court reiterated Appellant’s various alleged

violations, which included possessing a cellular telephone with internet

capabilities, using the cellular telephone since November 2021 to access the

internet to visit numerous pornographic and dating websites, creating a

Facebook account, and engaging with “multiple minor friends” to, inter alia,

exchange money for sexual favors and consume marijuana. Id. at 2-3.

Appellant admitted to all but exchanging money for sexual favors. Id. at 5.

Based upon the forgoing conduct, Appellant’s probation officer, Douglas

Thase, stated:

[T]he nature of the violations are obviously significant. As you stated, he had a previous opportunity to comply with that. … I do believe that we have run out of resources, or ways to supervise [Appellant], and as a result[,] we are left with the only option at this point, which is a [s]tate-length sentence.

Id. at 3.

Despite Officer Thase’s recommendation, Appellant’s counsel proposed

an alternative housing arrangement, suggesting a residential commitment at

“Farkus House” or “possibly a [Community Residential Rehabilitation (“CRR”)]

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group home.” Id. at 3-4. A JRS representative, however, indicated that, “in

[her] professional opinion[, Appellant] would be denied [admission to a CRR

group home] due to his mental health.” Id. at 4. The trial court considered

Appellant’s counsel’s proposal but noted that “Farkus House is a lower level of

supervision than Steadfast,” where Appellant was previously located and

committed the aforementioned violations. Id. at 7. Based upon the

foregoing, the trial court stated:

The issue is his ongoing use of illicit substances, his ongoing engagement with minor children, his corruption of minors, asking his own daughter to provide him with [marijuana]; his use of pornography, which is specifically adverse to the conditions of his mental health treatment. An ankle bracelet [will not] change that.

We have tried to address his treatment needs. He failed the first time and was given a second chance. And my notes indicate here this last time he was again dishonest about his compliance with treatment.

So[,] at this point[,] I [am] not confident that doing the same thing over again is going to produce a different result, especially since Farkus is a [less restrictive facility.]

Id. at 8. Thereafter, the trial court revoked Appellant’s probation and imposed

sentence. Id. at 10-13.

Upon review, we conclude that, although the trial court spoke tersely in

rendering its sentence, it indicated on the record that it was informed by the

PSI report and Appellant’s response, over time, to his treatment regimen and

supervisory conditions. See N.T Hearing, 10/17/22, at 2. This is sufficient to

satisfy the statutory requirement that a trial court state, in open court at the

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time of sentencing, the reasons for its sentence. See Commonwealth v.

Reynolds, 835 A.2d 720, 734 (Pa. Super. 2003). Moreover, it is evident that

the trial court, through multiple encounters, was familiar with Appellant, the

nature and gravity of his offenses and serial probation violations, and the clear

need to protect the public in this case. Hence, we discern no abuse of

discretion on the part of the trial court, as it adequately considered the

sentencing factors as required by 42 Pa.C.S.A. § 9721(b).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/14/2023

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