Com. v. Smith, F.

• Court: Superior Court of Pennsylvania
• Decided: April 18, 2018
• Docket: 63 WDA 2017
• Status: Unpublished

Opinion

J-S69012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

FRANCIS IVAN SMITH, III

Appellant No. 63 WDA 2017

Appeal from the Judgment of Sentence December 9, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006061-2010 CP-02-CR-0006106-2010

BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED APRIL 18, 2018

Appellant Francis Ivan Smith, III, appeals from the judgment of

sentence imposed following the revocation of his probation. We affirm.

The relevant facts underlying the instant appeal are as follows. On

March 14, 2011, at docket No. CP-02-CR-6061-2010, Appellant entered

guilty pleas to ten counts of burglary, five counts of theft by unlawful taking,

and one count each of forgery, theft by deception, criminal mischief and

access device fraud.1 At a sentencing hearing conducted on October 4,

____________________________________________

1 On that same date, Appellant entered guilty pleas at No. CP-02-CR-6106- 2010 to burglary, forgery, theft by deception, theft by unlawful taking, and access device fraud. He was sentenced at No. CP-02-CR-6106-2010 to three (Footnote Continued Next Page)

* Former Justice specially assigned to the Superior Court. J-S69012-17

2011, the trial court imposed an aggregate sentence of two to four years

incarceration, with a Recidivism Risk Reduction Incentive (“RRRI”) minimum

of eighteen months, followed by three years of state-supervised probation.

Based on Appellant’s extensive history of drug and alcohol addiction,

Appellant was also ordered to undergo a drug and alcohol evaluation, and a

mental health evaluation.

On July 5, 2014, while Appellant was on probation, his probation

officer, Nicholas Sobol, observed Appellant in a bar. Mr. Sobol instructed

Appellant to report to Mr. Sobol’s office a few days later. On July 8, 2014,

Mr. Sobol took a sample of Appellant’s urine, which tested positive for

cocaine. Mr. Sobol then issued Appellant a document, which Appellant

signed, that prohibited Appellant from consuming or possessing alcohol, or

entering any establishment that sells or dispenses alcohol.

On December 16, 2014, Mr. Sobol encountered Appellant under the

influence of alcohol. Mr. Sobol attempted to take Appellant into custody, but

Appellant was combative and resisted, causing injuries to Mr. Sobol in the

process. As a result of the incident, Appellant was convicted at No. CP-02-

CR-1502-2015 of resisting arrest and disorderly conduct. Mr. Sobol also

(Footnote Continued) _______________________

years of probation, to be served consecutively to the sentence imposed at this docket.

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initiated revocation proceedings based on Appellant’s violation of his

probation conditions.

On December 9, 2016, the violation of probation court (hereinafter

“the VOP court”) conducted a Gagnon II2 violation hearing, at which the

court acknowledged Appellant’s new convictions. The VOP court also

received evidence of Appellant’s technical violations. Based on the evidence

presented, the VOP court found Appellant to be a convicted and technical

probation violator, and immediately imposed an aggregate revocation

sentence of two to five years in prison, followed by six years of state-

supervised probation.3

On December 19, 2016, Appellant filed a motion to modify sentence,

which was denied on January 4, 2017. Appellant filed a timely notice of

appeal and a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Thereafter, the trial court filed its Pa.R.A.P.

1925(a) opinion. ____________________________________________

2 See Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756 (1973); see also Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa.Super. 2000) (explaining that when a parolee or probationer is detained pending a revocation hearing, due process requires a determination at a pre-revocation hearing (a “Gagnon I” hearing) of probable cause to believe a violation was committed; upon a finding of probable cause, a second, more comprehensive hearing (a “Gagnon II” hearing) follows before the trial court makes its final revocation decision).

3 Appellant’s revocation sentence was to be served consecutively to the sentence imposed at No. CP-02-CR-1502-2015.

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Appellant raises the following claims for our review:

1. Did the [VOP] court err by violating Appellant’s probation based on conditions of probation set by the Pennsylvania Board of Probation and Parole[,] and not set by the trial court?

2. Did the [VOP] court err by finding a violation of probation for the Appellant due to the use of cocaine, when the evidence was insufficient to demonstrate that the [Appellant] used or possessed this substance?

3. Did the [VOP] court err by revoking Appellant’s probation and sentencing Appellant to additional incarceration in excess of what is reasonably necessary to satisfy the goals of the sentencing process?

Appellant’s brief at 3.

This Court’s review of a sentence imposed following the revocation of

probation “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.”

Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa.Super. 2007)

(internal citation omitted). “The Commonwealth establishes a probation

violation meriting revocation when it shows, by a preponderance of the

evidence, that the probationer’s conduct violated the terms and conditions of

his probation, and that probation has proven an ineffective rehabilitation tool

incapable of deterring probationer from future antisocial conduct.”

Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa.Super. 2008).

Revocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court’s decision will

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not be disturbed on appeal in the absence of an error of law or an abuse of discretion. When assessing whether to revoke probation, the trial court must balance the interests of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison. In order to uphold a revocation of probation, the Commonwealth must show by a preponderance of the evidence that a defendant violated his probation.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014)

(quotation marks and citations omitted).

Appellant’s arguments are confined to his technical violations, and

therefore overlook his violations stemming from his convictions at No. CP-

02-CR-1502-2015, for resisting arrest and disorderly conduct. Based on

those convictions, the VOP court was authorized to revoke Appellant’s

probation, regardless of whether he committed any technical violations.

Having set forth that observation, we now turn our attention to Appellant’s

specific issues.

In his first claim, Appellant contends that the VOP court erred in

determining that he violated his probation based on conditions imposed by

Mr. Sobol, as an agent of the Pennsylvania Board of Probation and Parole

(“Board”). Citing Commonwealth v. Elliot, 50 A.3d 1284 (Pa. 2012),

Appellant argues that the Board lacked the authority to impose conditions on

Appellant, including the prohibition from purchasing or consuming alcohol.

Appellant claims that, although the trial court was authorized to impose such

conditions on Appellant, pursuant to 42 Pa.C.S. § 9754(c), it did not do so.

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Appellant also contends that his violation due to assaultive behavior cannot

stand because it was based on the same testimony on which a jury found

him not guilty of simple assault at No. CP-02-CR-1502-2015. Id.

The trial court’s authority to set forth conditions of probation is set

forth in the Sentencing Code at 42 Pa.C.S. § 9754, which provides, in

pertinent part:

(a) General rule. — In imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum term for which the defendant could be confined, and the authority that shall conduct the supervision.

(b) Conditions generally. — The court shall attach such of the reasonable conditions authorized by subsection (c) of this section as it deems necessary to insure or assist the defendant in leading a law-abiding life.

(c) Specific conditions. — The court may as a condition of its order require the defendant:

...

(3) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.

(12) To participate in drug or alcohol treatment programs.

(13) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

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42 Pa.C.S. § 9754(a), (b), and (c)(3), (6), (10), (12), (13).

Pursuant to the Prisons and Parole Code, “the [B]oard shall have the

power and its duty shall be: … [t]o establish, by regulation, uniform

Statewide standards for: . . . [t]he supervision of probationers.” 61 Pa.C.S.

§ 6131(a)(5)(ii).

In Elliot, our Supreme Court analyzed the Sentencing Code in pari

material with the Prisons and Parole Code and concluded: “a trial court may

impose conditions of probation in a generalized manner, and the Board or its

agents may impose more specific conditions of supervision pertaining to that

probation, so long as those supervision conditions are in furtherance of the

trial court’s conditions of probation.” 50 A.3d at 1292. At issue in Elliot, as

in the instant appeal, was whether a condition imposed by the Board was

valid, insofar as the Board, rather than the sentencing judge, imposed the

condition. The Elliott court clarified that, pursuant to section 6131(a)(5)(ii),

the Board or its agents are authorized to impose more specific conditions of

supervision pertaining to probation, so long as those supervision conditions

are in furtherance of the trial court’s conditions of probation. Id. at 1291.

Here, Mr. Sobol was authorized to impose specific conditions of

supervision in furtherance of the trial court’s conditions of probation. As

part of Appellant’s original sentence, the trial court ordered Appellant to

undergo a drug and alcohol evaluation, based on his history of alcohol

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abuse. After observing Appellant leaving a bar, Mr. Sobol imposed the

additional condition of supervision that Appellant refrain from purchasing or

consuming alcohol. As this condition was in furtherance of the trial court’s

sentencing order, and Appellant’s rehabilitation, Mr. Sobol was authorized to

impose it. See id. at 1289. Therefore, the VOP court did not err in finding

that Appellant violated his probation by not complying with the condition of

supervision imposed by Mr. Sobol concerning the prohibition from consuming

alcohol.

We now turn to Appellant’s claim that his violation of probation due to

assaultive behavior cannot stand because it was based on the testimony of

Mr. Sobol, on which Appellant was acquitted of simple assault at No. CP-02-

CR-1502-2015. Appellant conflates the standard of proof required in

revocation proceedings with that required in criminal proceedings.

The burden of proof for establishing a violation of probation is a preponderance of the evidence, lesser than the burden in a criminal trial of proof beyond a reasonable doubt. But there are other noteworthy differences between a probation revocation hearing and a criminal trial, and the manner in which each proceeding affects the other also is significant:

The focus [of] a probation hearing, even though prompted by a subsequent arrest, is whether the conduct of the probationer indicates that the probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future anti-social conduct. It must be emphasized that a probation revocation hearing is not a trial: The court’s purpose is not to determine whether the probationer committed a crime. ... The degree of proof necessary for probation revocation is less than that required to sustain a criminal conviction. Probation

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may be revoked on the basis of conduct which falls short of criminal conduct.

Commonwealth v. Castro, 856 A.2d 178, 180 (Pa.Super. 2004) (citations

and internal quotations omitted); see also Commonwealth v. Ortega, 995

A.2d 879, 886 (Pa.Super. 2010) (holding that “[t]he question before us,

therefore, is not whether the evidence admitted at the VOP hearing would, if

admitted at trial, suffice to convict [the appellant] beyond a reasonable

doubt . . . but whether it showed by a preponderance of the evidence that

probation had proven ineffective in rehabilitating [the appellant] and

deterring him from antisocial behavior.”).

At the violation hearing, Mr. Sobol testified that Appellant violated his

probation by assaulting Mr. Sobol during the arrest, causing injuries to Mr.

Sobol. N.T. Violation Hearing, 12/9/16, at 4. The VOP court credited the

testimony of Mr. Sobol. Accordingly, we find no error in the VOP court’s

determination that the testimony of record was sufficient to demonstrate, by

a preponderance of the evidence, that Appellant engaged in assaultive

behavior and that Appellant’s probation was ineffective in accomplishing

rehabilitation and had not deterred future antisocial conduct. See Colon,

102 A.3d at 1042.4

4 Moreover, Appellant was convicted of resisting arrest. That new conviction, alone, sufficiently established that probation was ineffective in accomplishing rehabilitation.

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In his brief, Appellant declined to discuss his second claim.

Accordingly, he abandoned it. In his third claim, Appellant asserts that his

revocation sentence is excessive and unreasonable, and that the VOP court

failed to consider that Appellant (1) caused no threat to the safety of the

community; (2) had already spent time in prison for these offenses; and (3)

did not show a propensity to commit future criminal behavior by imbibing

When reviewing a criminal sentence, we apply the following standard

of review.

Sentencing 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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).

However, the right to appeal the discretionary aspects of a sentence is not

absolute. We determine whether Appellant has invoked this Court’s

jurisdiction by examining the following four criteria:

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 [complies with] Pa.R.A.P. 2119(f); and (4) whether there is a

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substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)).

Appellant filed a timely notice of appeal, but did not specifically raise

his present discretionary aspects of sentencing claim in his motion to modify

sentence. Hence, it is waived. Moreover, Appellant failed to include in his

brief a Rule 2119(f) statement, and the Commonwealth has objected. See

Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super. 2006) (holding

that this Court is precluded from reaching the merits of a discretionary

aspects of sentencing claim when the appellant fails to include a Rule

2119(f) statement, and the Commonwealth lodges an objection to the

omission of the statement). Thus, we are precluded from reaching the

merits of this claim.

Appellant has also filed a pro se “Petition for the appointment of

substitute counsel and permission to amend brief and statement of errors.”

Pennsylvania courts do not permit hybrid representation. See

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016) (holding

that, when a petitioner is represented by counsel, pro se motions have no

legal effect and, therefore, are legal nullities). As Appellant is represented

by counsel, we decline to address his pro se filing.

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Judgement of sentence affirmed. “Petition for the appointment of

substitute counsel and permission to amend brief and statement of errors”

denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/18/2018

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