Com. v. Steinman, J.

• Court: Superior Court of Pennsylvania
• Decided: October 8, 2015
• Docket: 1334 WDA 2014
• Status: Unpublished

Opinion

J. S55005/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JAMES E. STEINMAN, JR., : No. 1334 WDA 2014 : Appellant :

Appeal from the Judgment of Sentence, July 15, 2014, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0011367-2009

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 08, 2015

This is an appeal from the judgment of sentence imposed on July 15,

2014, following the revocation of probation in the Court of Common Pleas of

Allegheny County that was made final by the July 28, 2014 order denying

appellant’s post-sentence motion. We affirm.

On September 14, 2009, appellant was charged with involuntary

deviate sexual intercourse with a child, indecent assault of a person under

13, indecent exposure, endangering the welfare of a child, and corruption of

minors.1 On May 3, 2010, the Commonwealth summarized the facts of this

case at appellant’s guilty plea and sentencing hearing:

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 3127(a), 4304(a) and 6301(a)(1), respectively. J. S55005/15

THE COMMONWEALTH: If this case were to proceed to trial, the Commonwealth would have called Allegheny County police detectives and the victim in this case, the 13-year-old John Doe, who would have testified that the victim disclosed at a forensic interview that he had been sexually assaulted by way of indecent contact by a relative of his biological father, that relative being the defendant.

He reported that the abuse occurred when he, the victim, was approximately 7 years of age and was residing with his biological mother. And the victim stated that the indecent contact occurred while the actor was babysitting him in the residence.

It would have been at that point, Your Honor, that the Commonwealth would have rested.

Guilty plea and sentencing hearing, 5/3/10 at 4-5.

Pursuant to a plea agreement with the Commonwealth, appellant pled

guilty to indecent assault and corruption of minors, the remaining charges

were withdrawn, and appellant agreed to a sentence of probation to be set

by the trial court. Appellant was immediately sentenced to a term of

probation for three years. Registration under Megan’s Law was also

imposed. In addition to having no contact with the victim, appellant was

ordered to comply with any condition imposed by the probation office.

Neither post-sentence motions nor a direct appeal were filed.

Appellant appeared before the trial court on March 27, 2012, for a

Gagnon I2 hearing. Appellant’s probation had been transferred to

Westmoreland County where he failed to attend six appointments.

2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

-2- J. S55005/15

(Gagnon I hearing, 3/27/12 at 2.) Appellant’s probation was transferred

back to Allegheny County where the trial court lifted the detainer and

ordered appellant released from jail. (Id. at 2-3.) Appellant received a new

three-year term of probation with credit for 175 days of incarceration from

October 5, 2011 to March 27, 2012. (Id.) Appellant was again ordered to

comply with all of the original conditions of his sentence including sex

offender treatment. (Id. at 3.)

On February 13, 2013, appellant appeared before the trial court for a

probation violation hearing. Appellant had failed to report to the probation

office as directed. Appellant told the probation office that he did not have a

permanent address, which resulted in his arrest and criminal charges for

failing to comply with Megan’s Law registration requirements; however,

those charges were withdrawn. (Probation violation hearing, 2/13/13 at

2-3.) The trial court agreed to impose a new term of probation during which

appellant agreed to live with his mother and attend sex offender treatment.

(Id. at 3-4). Appellant received a new four-year term of probation with

credit for 341 days of incarceration from October 5, 2011 to March 27, 2012,

and from September 1, 2012 to February 13, 2013.

On July 15, 2014, appellant appeared before the trial court for another

probation violation hearing. Appellant had failed to report and have contact

with the probation office, and he failed to comply with Megan’s Law

registration upon his release in February of 2013. The trial court revoked

-3- J. S55005/15

appellant’s probation and sentenced him to 1 to 4 years’ incarceration to be

served consecutively to another sentence he was already serving from

Westmoreland County.3 On July 21, 2014, appellant filed a timely motion to

reconsider sentence that was denied on July 28, 2014. This appeal followed.

Appellant timely complied with the trial court’s order to file a concise

statement of errors complained of on appeal. The trial court issued its

opinion on January 9, 2015.

Appellant raises one issue for our review:

I. WHETHER [APPELLANT’S] REVOCATION SENTENCE OF 1-4 YEARS[’] INCARCERATION IS MANIFESTLY EXCESSIVE AND, THEREFORE, AN ABUSE OF DISCRETION WHEN THE TRIAL COURT DID NOT HAVE THE BENEFIT OF A PRE-SENTENCE INVESTIGATION REPORT OR ANY OTHER INFORMATION CONCERNING HIS STATUS, CHARACTER, AND SERIOUS REHABILITATIVE NEEDS?

Appellant’s brief at 4.

In this appeal, appellant challenges the discretionary aspects of his

sentence after probation revocation. In Commonwealth v. Cartrette, 83

A.3d 1030, 1034 (Pa.Super. 2013) (en banc), an en banc panel of this

court concluded that “this Court’s scope of review in an appeal from a

3 Two separate criminal cases were filed against appellant in Westmoreland County for failing to register under Megan’s Law. In each of the Westmoreland County cases, appellant received 18 months to 5 years’ incarceration with 410 days credit. These sentences were run concurrent.

-4- J. S55005/15

revocation sentencing includes discretionary sentencing challenges.”

Therefore, appellant’s claim is properly before us.

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right. Commonwealth v. Moury, 992 A.2d 162,

170 (Pa.Super. 2010). Prior to reaching the merits of a discretionary

sentencing issue,

[this Court conducts] 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, [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, [see] 42 Pa.C.S.A. § 9781(b).

Id. (citation omitted).

Here, appellant filed a timely notice of appeal. He also has included a

concise statement of the reasons relied upon for allowance of appeal in his

brief pursuant to Pa.R.A.P. 2119(f). In his Rule 2119(f) statement, appellant

claims: (1) “the Trial Court did not have the benefit of a pre-sentence

investigation (“PSI”) report, nor did it provide any reasons for its failure to

order a PSI report” and (2) “the Trial Court gave no consideration to relevant

sentencing criteria such as the [protection] of the public, the gravity of

[appellant’s] violation and the rehabilitative needs of [appellant]” which is an

-5- J. S55005/15

allegation that the trial court did not consider the factors outlined in

42 Pa.C.S.A. § 9721(b). (Appellant’s brief at 10.)

Our review of the certified record reveals that most of appellant’s

arguments were not preserved during his probation violation hearing or in

his post-sentence motion. Appellant’s counsel failed to object to the lack of

a PSI report at the probation violation hearing or request that sentencing be

postponed for the preparation of a PSI report. Additionally, counsel did not

lodge an objection to the lack of a PSI report in his post-sentence motion.

Consequently, this court cannot consider appellant’s argument regarding

lack of a PSI report. See Commonwealth v. Gibbs, 981 A.2d 274, 282-

283 (Pa.Super. 2009) (stating that “[i]ssues challenging the discretionary

aspects of a sentence must be raised in a post-sentence motion or by

presenting the claim to the trial court during the sentencing proceedings.

Absent such efforts, an objection to a discretionary aspect of a sentence is

waived.”); Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super.

2004) (in order to preserve an issue pertaining to the discretionary aspects

of sentence, the issue must first be raised either at the time of sentencing,

or in a post-sentence motion), appeal denied, 860 A.2d 122 (Pa. 2004).

Regarding his second argument that the trial court failed to consider

relevant sentencing criteria, appellant failed to allege at sentencing or in his

post-sentence motion that the trial court “gave no consideration . . . [to] the

[protection] of the public.” As a result, this claim is waived. Id. See also

-6- J. S55005/15

Cartrette, 83 A.3d at 1042-1043 (while claim that the trial court failed to

adequately consider Section 9721(b) factors raised a substantial question, it

was waived where it was not included in a post-sentence motion or raised

before the trial court at sentencing). However, appellant’s arguments that

the trial court did not adequately consider the gravity of his probation

violation and his rehabilitative needs were preserved, and they raise a

substantial question. Commonwealth v. Fullin, 892 A.2d 843, 847

(Pa.Super. 2006).

The imposition of sentence following the revocation of probation is

vested within the sound discretion of the probation revocation court, which,

absent an abuse of that discretion, will not be disturbed on appeal.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). On

review, we determine the validity of the probation revocation proceedings

and the authority of the probation revocation court to consider the same

sentencing alternatives that it had at the time of the initial sentencing. See

42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen, 688 A.2d 1206, 1207-

1208 (Pa.Super. 1997). When imposing a sentence of total confinement

after a probation revocation, the sentencing court must consider the factors

-7- J. S55005/15

set forth in Sections 9771(c)4 and 9721(b) of the Sentencing Code.

Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006); see

also 42 Pa.C.S.A. § 9721(b) (providing that when determining an

appropriate sentence, the court must consider the protection of the public,

the gravity of the offense in relation to the impact on the victim and the

community, and the rehabilitative needs of the defendant). Following the

revocation of probation, a probation revocation court need not undertake a

lengthy discourse for its reasons for imposing a sentence of total

confinement, but the record as a whole must reflect the probation revocation

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).

Instantly, appellant initially received three years’ probation. For his

two prior probation violations, he received new terms of probation and was

credited with 341 days served. At his original sentencing hearing and two

probation violation hearings, appellant was directed to report to the

4 Pursuant to 42 Pa.C.S.A. § 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; 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 court.

-8- J. S55005/15

probation office, comply with the conditions of probation, and register with

the state police pursuant to Megan’s Law. Clearly, on three separate

occasions, the trial court afforded appellant the opportunity for treatment of

his issues and rehabilitation outside a prison setting.

When appellant appeared before the trial court on July 15, 2014, for

his third probation violation, he was a convicted violator having received two

new criminal convictions and was a technical violator, as he never reported

to the probation office and could not be located. The trial court explained:

THE COURT: The difficulty I have with this case is, one, was the seriousness of the offense where you had sex with a 13-year-old child.

I have been supervising you four years. You have done just nothing right during the four years. I mean not even the minimal amount.

You have been arrested three times for not registering for Megan's Law which, according to the reports that I received, was explained to you not only by me, but also by the probation officers. You've been convicted of two of those things.

I see you making no effort to rehabilitate yourself, and because of the seriousness of the original charge, at Count 2, I'm going to revoke, and I'm going to order you to serve one-to-four years consecutive with the sentence you're serving in Westmoreland County.

Probation violation hearing, 7/15/14 at 7.

Based on the above, the trial court was aware of and considered the

gravity of appellant’s probation violation; i.e., appellant repeatedly failed to

abide by the terms of his plea agreement which called for him to register

-9- J. S55005/15

under Megan’s Law and comply with any conditions imposed by the

probation office. Appellant made no effort to rehabilitate himself, failed to

report to the probation office, and did not take part in sex offender

treatment. Additionally, the trial court was also aware that appellant was on

disability for borderline mental functioning and that his new convictions for

failing to report in Westmoreland County did not involve any victims. (See

id. at 3-6.)

Undoubtedly, after four years of failing to comply with the terms of his

probation, the trial court believed that a sentence of incarceration was

necessary to vindicate the authority of the trial court. Although the

sentencing guidelines do not apply to sentences imposed as a result of

revocation of probation, the sentence imposed in this case was within the

guideline range at the time of the initial sentencing. See Commonwealth

v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (observing that the sentencing

guidelines do not apply to sentences imposed as a result of revocation of

probation).

After review, we conclude that the trial court did not abuse its

discretion by imposing appellant’s sentence of total confinement which is

neither excessive nor contrary to the Sentencing Code. See Sierra, 752

A.2d at 915 (holding that the sentencing court’s imposition of a prison

sentence following a probation violation was not an abuse of discretion, since

the sentence was based upon the judge’s in-depth knowledge of the

- 10 - J. S55005/15

individual, a finding that parole and probation were not effective in

rehabilitating the defendant, and a further prison term was appropriate).

Last, we address the following statement that appears at the end of

appellant’s brief: “[Appellant] had served 1 year, 5 months, and 1 day in

jail for a crime having a maximum possible sentence of 5 years. Thus, the

Trial Court imposed an illegal sentence, which is further evidence that it

abused its sentencing discretion.” (Appellant’s brief at 17.) We note this

statement concerns the legality of appellant’s sentence and was not raised in

either appellant’s post-sentence motion or in his Rule 1925(b) statement.

However, “[i]t is settled that a legality-of-sentence issue ‘may be

reviewed sua sponte by this Court,’ due to the fact that an ‘illegal sentence

must be vacated.’” Commonwealth v. Stradley, 50 A.3d 769, 774

(Pa.Super. 2012), quoting Commonwealth v. Randal, 837 A.2d 1211,

1214 (Pa.Super. 2003). Moreover,

[C]laims pertaining to the legality of sentence are non-waivable, [and] may be leveled for the first time on appeal . . . . Commonwealth v. Dickson, [918 A.2d 95, 99 (Pa. 2007)] (“challenges to sentences based upon their legality” are not subject to waiver); see also Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.Super. 2007) (en banc) (“A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained [as] long as the reviewing court has jurisdiction.”). In fact, such a claim is not even waived by a party’s failure to include it in a Pa.R.A.P.1925(b) statement. Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) (Commonwealth did not waive position that trial court erred in failing to impose mandatory minimum

- 11 - J. S55005/15

sentence under recidivist statute, 42 Pa.C.S. § 9714, even though claim was not included in Commonwealth’s Pa.R.A.P.1925(b) statement).

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.Super. 2008),

affirmed, 17 A.3d 332 (Pa. 2011).

In his brief, appellant fails to present any type of explanation or cite to

any statutory authority nor does he refer us to any place in the certified

record to prove that his current sentence of 1 to 4 years’ exceeded the

statutory maximum. We observe it is not this court’s role to develop and

substantiate appellant’s illegal sentence claim. Nonetheless, the

Commonwealth has supplied us with the following information:

[T]here is no information contained in the certified record to support Appellant’s assertion that his July 15, 2014 sentence is illegal. Count 2, Indecent Assault, was graded as a first-degree misdemeanor punishable by a term of incarceration not to exceed five years. (DE 2). 18 Pa.C.S.A. § 1104(1). Prior to his July 15, 2014 probation violation sentence, Appellant received credit for 341 days incarceration - from October 5, 2011 to March 27, 2012 and from September 1, 2012 to February 13, 2013. (DE 9). When that incarcerated time is added to his current sentence of 1 to 4 years’ incarceration, it does not exceed the five year statutory maximum term of incarceration. Thus, the sentence is not illegal. 42 Pa.C.S.A. §§ 9756, 9760. See also Commonwealth v. Yakell, 876 A.2d 1040 (Pa.Super. 2005); Commonwealth v. Williams, 662 A.2d 658 (Pa.Super. 1995), appeal denied, 674 A.2d 1071 (Pa.1996).

If Appellant is somehow contending that he did not receive all the time-credit due to him, his claim is inadequately developed and unsupported by the certified record. See [Commonwealth v.]

- 12 - J. S55005/15

Rahman, [75 A.3d 497, 504 (Pa.Super. 2013)]. At Appellant’s May 1, 2014 guilty plea and sentencing for the Westmoreland County cases he received 18 months to 5 years’ incarceration effective that day with 410 days credit. 42 Pa.C.S.A. § 9760(1) (statutory law provides that credit must be given “for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.”). His current Allegheny County sentence of 1 to 4 years’ imposed on July 15, 2014 is running consecutive to the Westmoreland County sentences, and it is of note that he was transported from SCI Camp Hill for his probation violation hearing. (DE 10, 11). The certified record does not contain any information on Appellant’s arrest for his Westmoreland County cases, but the Commonwealth would note that there were 442 days between Appellant’s second Allegheny County probation violation hearing on February 13, 2013 and his May 1, 2014 sentencing in Westmoreland County. Given that Appellant received 410 days credit in his Westmoreland County cases, a logical deduction is that he was arrested in Westmoreland County shortly after his second February 13, 2013 probation violation hearing in Allegheny County and the time-credit due to him went to Westmoreland County. There is nothing in the certified record that indicates Appellant would be due any credit towards his present probation violation sentence. Since Appellant has failed to develop his argument and provide this Court with any supporting information from the certified record, his issue is not ripe for review. He must await collateral review.

Commonwealth’s brief at 16-18.

We agree with the Commonwealth’s rationale and affirm appellant’s

judgment of sentence.

- 13 - J. S55005/15

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/08/2015

- 14 -