Com. v. Stiscak, S.

• Court: Superior Court of Pennsylvania
• Decided: September 8, 2014
• Docket: 1532 WDA 2013
• Status: Unpublished

Opinion

J-A23024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

STEPHEN N. STISCAK,

Appellant No. 1532 WDA 2013

Appeal from the Judgment of Sentence entered August 26, 2013, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0009389-2011 and CP-02-CR-0009226-2011

BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 08, 2014

sentence imposed after he violated the conditions of his probation. We

affirm.

The trial court summarized the pertinent facts as follows:

[Appellant] was charged at CC201109389 with Aggravated Indecent Assault of a Child, Indecent Assault of a Child and Corruption of Minors in relation to an incident with his next-door -year-old daughter and at CC 201109226 with Indecent Assault of a Child, Indecent Exposure and Corruption of Mi -year- old son. The Aggravated Indecent Assault Charge at CC 20119389 as well as one Indecent Assault and the Indecent Exposure charges at CC 201109226 were withdrawn by the Commonwealth as part of a plea agreement, and on February 6, 201[2], [Appellant] pled guilty to the remaining charges. He was immediately sentenced to an agreed-upon term of imprisonment of 17½ months of home confinement with GPS J-A23024-14

monitoring. No Post-Sentence Motions were filed and no direct appeal was taken.

[On June 28, 2012, the trial court adjudicated Appellant a

(expired). Although Appellant was sentenced on February 6, 2012, before his SVP hearing, this Court in Commonwealth v. Whanger, 30 A.3d 1212, 1214 (Pa. Super 2011) explained that the requirement that an SVP hearing be held before sentencing can be waived. See 42 Pa.C.S.A. § 9795.4(a)(expired); 42 Pa.C.S.A. § 9799.24. Here, at the February 6, 2012, sentencing

applicable to him and after Appellant affirmed that he had filled

on the record to immediately proceed to sentencing, effectively waiving the requirement that an SVP hearing be conducted before sentencing. N.T., 2/6/12, at 7.]

On August 26, 2013, [Appellant] appeared before [the trial court] for a probation violation hearing following his unsuccessful discharge from treatment [with the Mercy Behavioral Health Clinic]. At the conclusion of the hearing, [the trial court]

imprisonment of [2½] to five (5) years. Timely Post-Sentence Motions were filed and were denied on September 23, 2013. This appeal followed.

Trial Court Opinion, 1/14/14, at 1-2.

On April 10, 2014, the Commonwealth filed with the trial court a

which detailed the special conditions

ld be precluded

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the certified record because it was never presented to the trial court. 1

____________________________________________

1 at Appellant is to comply with while on probation, including a requirement that

and/or sex offender treatment program as approved and directed by the ument is signed only by Appellant and does not indicate who or what entity drafted it, or from where it originated.

ement the

mental health treatment) was never introduced in any proceeding before the trial court and that the document was never referenced nor admitted by the trial court as evidence. Accordingly, Appellant asserts that the document was not a part of the record before the trial court, and should not be considered by this Court as part of the certified record.

consider only material duly certified in the record transmitted to us by the trial court. A party to an appeal cannot therefore file a supplemental record containing documents which were not included in the record certified from the trial court and were not part of the evidence considered by the trial court Possessky v. Diem, 655 A.2d 1004, 1007, n.1 (Pa. Super. 1995), citing Pa.R.A.P. 1921.

It appears from the record that Appellant is correct that the document

that Appellant attend counseling, was not admitted into evidence at the probation revocation hearing. However, the document is referenced in the written sentencing order dated February 6, 2012, in which the trial court

cond

(Footnote Continued Next Page)

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In his appellate brief, Appellant raises the following issues for our

review:

1. Did the [tria Probation where 42 Pa.C.S. § 9771(b)[2] directs that proof of Violation of specified conditions of Probation is necessary before a [trial court] may revoke Probation, and where the [trial court] did not make a determination that the alleged violations were based on the conditions of Probation actually imposed by the sentencing court?

2. Are VOP Sentences of consecutive two and a half (2½) to five (5) years of total confinement excessive as an abuse of discretion, where [the] record demonstrates [that the trial court] asserted inconsistent reasons for judgment, ignored mitigating factors, and placed undue emphasis upon improper pre-probationary factors?

Appellant challenges the legality of his sentence and also raises a

discretionary challenge to the length of the sentence imposed following

-20. In his first issue,

Appellant argues that the revocation of his probation was erroneous because

_______________________ (Footnote Continued)

denied. 2 42 Pa.C.S. § 9771(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.

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it was based on his failure to complete a counseling and treatment program.

Id. He asserts that the requirement that he attend a counseling and

treatment program was not imposed by the trial court at sentencing, but by

the Board of Probation and Parole as a condition of supervision. He claims

that at the sentencing hearing, and in the written sentencing order, the trial

court never imposed a requirement that Appellant attend a treatment and

counseling program. Rather, in reliance on Commonwealth v. Elliot, 50

A.3d 1284 (Pa. 2011), Appellant argues that the requirement that he attend

a counseling and treatment program was imposed by the Pennsylvania

Board of Probation and Parole as a condition of supervision. Appellant

maintains, therefore, that the trial court lacked authority to revoke his

probation based on his failure to attend counseling because the trial court

never ordered him to attend counseling. Appellant claims that he cannot be

penalized for failing to comply with a requirement that was not court-

ordered, and that the trial court lacked the legal authority to revoke his

probation and impose of a new judgment of sentence.

In Elliott, supra, on which Appellant relies, our Supreme Court

addressed whether a trial court has the legal authority to revoke probation

based on a violation of a condition set not by the trial court, but by the

Board of Probation and Parole. The Supreme Court noted that under the

Sentencing Code, the trial court is tasked with setting the terms and

conditions for probation within specified parameters. See Elliot, 50 A.3d at

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1288 citing 42 Pa.C.S. § 9754(a), (b) and (c). Our Supreme Court

any individual probation officers, [may] impose the terms [and conditions] of

Id. at 1291. The Supreme Court explained, however, that while

robation Board

Id. (clarifying that

Board and its agents cannot impose any condition of

supervision it wishes, carte blanche

- Id. Rather, the Board

ne to, elaborate on, or

Id. at 1291-

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

Id.

This interpretation gives meaning to all of the [relevant] statutory provisions ... and thus: (1) maintains the sentencing authority solely with a trial court; (2) permits the Board and its agents to evaluate probationers on a one-on-one basis to effectuate supervision; (3) sustains the ability of the Board to impose conditions of supervision; and (4) authorizes that a probationer

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with either a condition of probation or a condition of supervision.

Id ision that the

defendant not enter within 1,000 feet of areas where primary activity

defendant not have unsupervised contact with minors, and merely

-contact order; therefore trial court possessed

Here, Appellant argues that the requirement that he attend a

counseling and treatment program was a condition imposed not by the

sentencing court, but by the Probation Board, without authorization from the

trial court. Appellant argues that at the sentencing hearing on February 6,

2012, when the trial court imposed its original sentence, it did not mention

as part of its sentence that Appellant was required to receive counseling as a

condition of probation. Appellant maintains that unlike Elliot, supra,

where the Probation Board imposed a condition of supervision that was

derivative of th the condition

that he attend counseling and treatment was not derivative of any trial court

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Our review of the record reveals that on June 28, 2012, Appellant was

Law, 42 Pa.C.S.A. § 9791 et. seq (expired).3 Under that now-expired

ed by statute to attend counseling

sessions. See

required to attend at least monthly counseling sessions in a program

approved by the board and be financially responsible for all fees assessed 4 The current, amended version of

not incarcerated shall be required to attend at least monthly counseling

sessions in a program approved by the board and be financially responsible

states that Appellant was required to fulfill the registration requirements of

-

would include the aforementioned statutory requirement that Appellant

2012, Appellant was subject to the registration requirements set forth in 42 Pa.C.S.A. § 9791 9795.4. That version of Megan's Law subsequently expired and was recodified at 42 Pa.C.S.A. §§ 9799.10 9799.41 effective December 20, 2012. 4 See also Commonwealth v. Maldonado, 838 A.2d 710 (Pa. 2003)

sessions at least monthly, and that he pay the fees assessed from such sessions if he is able to do so. See

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attend counseling. See Elliot, 50 A.3d at 1292 a trial court may impose

conditions of probat Moreover, at the guilty

plea and sentencing hearing, the trial court asked Appellant if he understood

N.T., 2/6/12, at 7. Appellant additionally affirmed on the record that he had

Id. Thus, the record

sentencing order, Appellant was informed of his responsibilities under

included the requirement that he attend sex offender counseling. We

therefore disagree with Appellant that the requirement that he attend

Probation without the authority of the trial court. Rather, attendance at sex

trial court explicitly

attendant requirements as a condition of his probationary sentence.

Accordingly, the trial court possessed the legal authority to revoke

ry requirement

that he attend counseling.

Even if, as Appellant asserts, the requirement that he attend

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and not by the trial court, here, as in Elliot, such a condition that Appellant

counseling). Elliot makes clear that if a condition imposed by the Probation

with that condition. Thus, the trial court in this case had authority to revoke

counseling because the trial court

counseling was derivative.

Appellant next argues that the trial court abused its discretion in

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's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant

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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) (citations

omitted).

Appellant has preserved his claim by filing a post-sentence motion and

timely notice of appeal. Appellant has additionally included in his brief a

concise statement pursuant to Pa.R.A.P. 2119(f). See

17- ailed to present

adequate reasons on the record for its sentence, in conformity with 42

Pa.C.S. § 9721, presents a substantial question for our review. See

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (claim that

the sentencing court did not consider the appropriate sentencing factors

delineated in 42 Pa.C.S. § 9721(b) raises a substantial question for our

Upon sentencing following a 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. See Commonwealth v.

Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). Once probation has

been revoked, a sentence of total confinement may be imposed 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,

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(3) such a sentence is essential to vindicate the authority of court.

42 Pa.C.S.A. § 9771(c). It is well settled that sentencing guidelines do not

apply to sentences imposed as a result of probation revocations. See

Commonwealth v. Ware, 737 A.2d 251, 255 (Pa. Super. 1999).

The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012).

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 [and] [f]ailure to comply with these provisions

shall be grounds for vacating the sentence or resentence and resentencing

Cartrette, 83 A.3d at 1040-1041 (internal quotations

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, 1282-1283 (Pa. Super. 2010).

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After his probation was revoked, Appellant received two consecutive

sentences of 2½ to 5 years of imprisonment. These sentences did not

exceed the statutory maximum, and therefore were not illegal. At the

probation revocation hearing, prior to the imposition of sentence, the trial

specifically that Appellant failed to comply with the treatment plan at Mercy

Behavioral Health, and that he had written sexually explicit messages to his

female therapist. N.T., 8/26/13, at 2-5, 7. The trial court then stated on

the record its reasons for its sentence as follows:

According to Mercy [Appellant has] been offending since he was 12 years old, starting with exhibitionism, stalking, voyeurism, and of course hands-on victims, both males and females ...

e estimating, victims of him exposing himself to....

We have been offering you help since you were 12 years

matter when you pled guilty, you still assaulted two children, ve been diagnosed with pedophilia and

of open lewdness; 2001, indecent assault as a juvenile. Again, you were adjudicated delinquent of open lewdness. You were convicted of indecent exposure in 2001, open lewdness in 2005, as well as the instant charges.

more than you have not been in therapy. And I don your rehabilitation has any meaning for you whatsoever. You

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of re-offending is great. You are therefore a danger to the community.

Id. at 9-11.

Based on the foregoing, we find no abuse of discretion by the trial

forth adequate reasons on the record for its sentence. Rather, the record

indicates that the trial court considered appropriate sentencing factors

noted that numerous past attempts to rehabilitate Appellant had not only

failed but led to a continuation of criminal conduct, and concluded that a

sentence of total confinement was warranted to vindicate the authority of

failed to provide adequate reasons on the record for its sentence. Appellant

has failed to establish 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. Simmons, supra.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Application for Relief to Vacate Lower Court Order denied.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2014

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