Com. v. Stevens, L.

• Court: Superior Court of Pennsylvania
• Decided: March 31, 2017
• Docket: Com. v. Stevens, L. No. 1208 WDA 2016
• Status: Unpublished

Opinion

J-S16035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LLOYD CHARLES STEVENS,

Appellant No. 1208 WDA 2016

Appeal from the Judgment of Sentence July 14, 2016 in the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0017063-2014

BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 31, 2017

Appellant, Lloyd Charles Stevens, appeals from the judgment of

sentence imposed on July 14, 2016, following revocation of his probation.

Specifically, he challenges the discretionary aspects of his sentence. We

affirm.

We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s November 9, 2016 opinion.

[Appellant] was charged with burglary, terroristic threats and criminal mischief[1] in relation to an incident which occurred at his ex-girlfriend’s residence in Crawford Village. He appeared before [the trial court] on July 6, 2015, and, pursuant to a plea agreement with the Commonwealth, [pleaded] guilty to one (1)

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3502(a)(1), 2706(a)(1), and 3304(a)(2), respectively. J-S16035-17

count of criminal trespass[2] and was immediately sentenced to a term of probation of one (1) year with the special condition of completion of the batterer’s intervention program. No post- sentence motions were filed and no direct appeal was taken.

On July 14, 2016, [Appellant] appeared before [the trial court] for a probation violation hearing. At the conclusion of the hearing and upon finding that [Appellant] had been convicted of another offense while on probation, his probation was revoked and he was sentenced to a term of imprisonment of [not less than eleven and one-half, nor more than twenty-three] months. Timely post-sentence motions were filed and were denied on August [15], 2016. This [timely] appeal followed.3

(Trial Court Opinion, 11/09/16, at 1-2) (unnecessary capitalization and some

footnotes omitted).

Appellant raises one issue on appeal.

1. Did the [trial] court abuse its discretion in sentencing [Appellant] to a manifestly excessive and unreasonable sentence of [eleven and one-half] to [twenty-three] months [of] incarceration following probation revocation?

(Appellant’s Brief, at 8) (most capitalization omitted).

Appellant’s issue challenges the discretionary aspects of his sentence.

This Court has concluded that a challenge to a discretionary sentencing

matter after revocation proceedings is within the scope of its review. See

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006),

appeal denied, 906 A.2d 1196 (Pa. 2006).

2 18 Pa.C.S.A. § 3503(a)(1). 3 Appellant filed a concise statement of errors complained of on appeal on October 7, 2016. The trial court entered its opinion on November 9, 2016. See Pa.R.A.P. 1925.

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Such a challenge to the discretionary aspects of a sentence is not appealable as of right. Rather, Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004).

Before 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 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. The third and fourth of these requirements arise because . . . [Appellant] must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on 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.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“[W]hen a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that new sentence either by objecting during the revocation sentencing or by filing a post-sentence motion.”) [(citation omitted)].

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015).

Here, Appellant has properly preserved his issue by filing a post-

sentence motion for reconsideration of sentence, which the trial court

denied, and a timely appeal. Appellant’s brief contains a Rule 2119(f)

concise statement of reasons. (See Appellant’s Brief, at 9-10). In it,

Appellant argues “the sentencing court failed to take into account that he

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accepted responsibility for his actions, he has rehabilitative needs and he

has health issues.” (Id. at 10). “[A] claim that the sentencing court failed

to consider or accord proper weight to a specific sentencing factor does not

raise a substantial question.” Commonwealth v. Berry, 785 A.2d 994,

996 (Pa. Super. 2001) (citation omitted). However, Appellant later argues

that the sentence imposed after revocation of his probation is higher than

the aggravated range for his original offense and is manifestly excessive.

(See Appellant’s Brief, at 17). Although not specifically contained within the

2119(f) statement, we find that Appellant is not only arguing that the court

failed to consider certain factors, but also that such failure resulted in a

manifestly excessive sentence, which is above the aggravated guideline

range. See Commonwealth v. Anderson, 830 A.2d 1013, 1017–18 (Pa.

Super. 2003) (considering sentencing challenges although not contained

within Rule 2119(f) statement). “A claim that a sentence is manifestly

excessive such that it constitutes too severe a punishment raises a

substantial question.” Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.

Super. 2011) (citation omitted). Thus, Appellant has presented a substantial

question and we will proceed to the merits of his claim.

Our standard of review of an appeal from a sentence imposed

following the revocation of probation is well-settled: “Revocation of a

probation 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

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of an error of law or an abuse of discretion.” Colon, supra at 1041 (citation

omitted).

In his issue, Appellant claims that his sentence was manifestly

excessive. (See Appellant’s Brief, at 14-17). Specifically, he claims that the

court did not consider his rehabilitative needs, health, or acceptance of

responsibility when sentencing him, thus resulting in imposition of an

unreasonable sentence. (See id.). We disagree.

Upon revoking probation, a sentencing court may choose from any of the sentencing options that existed at the time of the original sentencing, including incarceration. 42 Pa.C.S.A. § 9771(b). “[U]pon revocation [of probation] . . . the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal quotation marks and citations omitted). . . .

Colon, supra at 1044. “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. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal

denied, 13 A.3d 475 (Pa. 2010) (citation omitted). We observe that “our

sentencing guidelines are not required to be consulted” when sentencing

upon revocation. Commonwealth v. Cartrette, 83 A.3d 1030, 1040 (Pa.

Super. 2013) (citing 204 Pa. Code. § 303.1(b)).

Here, a review of the probation violation hearing and sentencing

transcript reflects that the trial court engaged in a discussion of the facts

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and history of Appellant’s case. The Commonwealth established that

Appellant pleaded guilty to criminal trespass (his original conviction), and

admitted that he approached the victim (previously his paramour) at her

home, started a verbal altercation, and then entered her home without

permission. (See N.T. Plea and Sentencing Hearing, 7/06/15, at 4). The

record reveals that Appellant violated his probation when he was convicted

of a new charge. (See N.T. Probation Violation Hearing, 7/14/16, at 3).

The trial court heard testimony from the probation officer who explained that

Appellant’s supervision had been poor, that he had never attended batterers

intervention classes (a requirement of his probation), and that he failed to

appear for a domestic violence review hearing. (See id. at 2-3; N.T. Plea

and Sentencing Hearing, at 5).

Moreover, we note that the maximum sentence that the court could

have imposed at Appellant’s initial sentencing was seven years’

incarceration. (See N.T. Plea and Sentencing Hearing, at 3). Therefore, the

sentence, imposed upon revocation, of not less than eleven and one-half nor

more than twenty-three months of incarceration, is well within the maximum

sentence that could have been imposed. See 42 Pa.C.S.A. § 9771(b);

Colon, supra at 1044.

Thus, we conclude that the record reflects the court’s reasons for

Appellant’s sentence and its consideration of the circumstances of the

offense, Appellant’s background, and his character. See Crump, supra at

1283. The record also reflects that the sentence imposed was within the

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maximum sentence that could have been imposed originally. See Colon,

supra at 1044. Accordingly, the court did not err or abuse its discretion in

this regard. See id. at 1041. Appellant’s issue lacks merit.

Judgment of sentence affirmed.

Judge Ransom joins the Memorandum.

Judge Moulton concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/31/2017

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