J. S66033/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : SHAKEEM WILLIAMS, : No. 368 EDA 2019 : Appellant :
Appeal from the Judgment of Sentence Entered January 7, 2019, in the Court of Common Pleas of Lehigh County Criminal Division at No. CP-39-CR-0002442-2018
BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2020
Shakeem Williams appeals from the January 7, 2019 judgment of
sentence entered in the Court of Common Pleas of Lehigh County following
revocation of appellant’s probation and resentencing appellant to one to
two years’ incarceration in a state correctional institution. We affirm.
The record reflects that on July 23, 2018, appellant pleaded guilty to
one count of manufacture, delivery, or possession with intent to manufacture
or deliver a controlled substance at trial court docket CP-39-CR-0002442-
2018 (“CR-2442-2018”).1 The sentencing court imposed a sentence of
12 months’ probation. On September 5, 2018, appellant’s probation officer
found appellant to be in possession of a small amount of marijuana and a
1 35 P.S. § 780-113(a)(30). J. S66033/19
firearm. (Notes of testimony, 1/7/19 at 3-5.) On September 10, 2019,
appellant was charged with violating his probation at CR-2442-2018 due to
appellant’s new arrest, for among other charges, possession of marijuana –
small amount for personal use2 and for having contact with a deadly weapon.
(“Probation/Parole Intermediate Punishment Violation Warrant,” 9/10/18.)
On January 7, 2019, the sentencing court conducted a Gagnon II
hearing3 where appellant admitted to violating his probation at CR-2442-2018.
The sentencing court revoked appellant’s probation at CR-2442-2018 and
resentenced appellant to one to two year’s incarceration in a state correctional
institution.
On January 15, 2019, appellant filed a petition for reconsideration,
which the sentencing court subsequently denied. Appellant filed a timely
notice of appeal. The sentencing court ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied. On March 18, 2019, the sentencing court filed an
Order stating that it was relying on the Gagnon II notes of testimony to
satisfy the requirements of Rule 1925(a).
2 35 P.S. § 780-113(a)(31)(i).
3 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining when parolee or probationer is detained pending revocation hearing, due process requires determination at pre-revocation hearing (Gagnon I hearing) of probable cause to believe violation was committed, and upon finding of probable cause, second, more comprehensive hearing (Gagnon II hearing) follows before trial court makes final revocation decision).
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Appellant sets forth the following issue for our review: “Was the
sentence imposed by the [sentencing] court manifestly excessive or otherwise
unjustified based upon the lack of any proportional punishment based upon
the nature of [appellant’s] probation violation and need for rehabilitation?”
(Appellant’s brief at 8.) Appellant’s claim presents a challenge to the
discretionary aspect of appellant’s sentence.
A challenge to the discretionary aspects of sentencing does not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this [c]ourt’s jurisdiction by satisfying a four-part test: (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, 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).
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016)
(footnote, quotation marks, and some citations omitted).
Here, the record reflects that appellant filed a timely notice of appeal,
preserved his issue by filing a petition for reconsideration of sentence, and
included a Rule 2119(f) statement in his brief. Therefore, we will examine
whether appellant’s claim raises a substantial question.
[A] determination of what constitutes a substantial question must be evaluated on a case-by-case basis and such question exists only when an appellant advances a colorable argument that the sentencing judge’s actions were either inconsistent with a specific provision of the Sentencing Code or contrary to the
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fundamental norms underlying the sentencing process.
Bynum-Hamilton, 135 A.3d at 184 (citation omitted).
Here, appellant’s claim that the length of his sentence was excessively
harsh and the sentence was unreasonably disproportionate to his probation
violation raises a substantial question. (See appellant’s brief at 12; see also
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super. 2006)
(stating, “claims that a penalty is excessive and/or disproportionate to the
offense can raise substantial questions”).) Therefore, we proceed to consider
the merits of appellant’s discretionary sentencing claim.
“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.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super.
2015), appeal denied, 126 A.3d 1282 (Pa. 2015).
Upon revoking one’s 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). However, the imposition of total confinement upon revocation requires a finding that [appellant] has been convicted of another crime, his conduct indicates it is likely he will commit another crime if he is not imprisoned, or such a sentence is essential to vindicate the court’s authority of the court. 42 Pa.C.S.A. § 9771(c).
Bynum-Hamilton, 135 A.3d at 184-185 (Pa.Super. 2016) (quotation marks,
ellipsis, and some citations omitted). A sentencing court may commit a
defendant to a state correctional institution or a county prison when the
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maximum term of incarceration is two years or more. 42 Pa.C.S.A.
§ 9762(a)(2).
Here, appellant characterized his parole violations as “minor,”
“technical” violations and contends that while incarceration may be
appropriate, a lesser sentence should have been imposed and he should have
been incarcerated in the county prison, not the state correctional institution.
(Appellant’s brief at 17.) The record demonstrates, however, that appellant’s
probation violation was the result of, among other things, appellant’s arrest
for possession of marijuana – small amount for personal use. This new arrest
Free access — add to your briefcase to read the full text and ask questions with AI
J. S66033/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : SHAKEEM WILLIAMS, : No. 368 EDA 2019 : Appellant :
Appeal from the Judgment of Sentence Entered January 7, 2019, in the Court of Common Pleas of Lehigh County Criminal Division at No. CP-39-CR-0002442-2018
BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2020
Shakeem Williams appeals from the January 7, 2019 judgment of
sentence entered in the Court of Common Pleas of Lehigh County following
revocation of appellant’s probation and resentencing appellant to one to
two years’ incarceration in a state correctional institution. We affirm.
The record reflects that on July 23, 2018, appellant pleaded guilty to
one count of manufacture, delivery, or possession with intent to manufacture
or deliver a controlled substance at trial court docket CP-39-CR-0002442-
2018 (“CR-2442-2018”).1 The sentencing court imposed a sentence of
12 months’ probation. On September 5, 2018, appellant’s probation officer
found appellant to be in possession of a small amount of marijuana and a
1 35 P.S. § 780-113(a)(30). J. S66033/19
firearm. (Notes of testimony, 1/7/19 at 3-5.) On September 10, 2019,
appellant was charged with violating his probation at CR-2442-2018 due to
appellant’s new arrest, for among other charges, possession of marijuana –
small amount for personal use2 and for having contact with a deadly weapon.
(“Probation/Parole Intermediate Punishment Violation Warrant,” 9/10/18.)
On January 7, 2019, the sentencing court conducted a Gagnon II
hearing3 where appellant admitted to violating his probation at CR-2442-2018.
The sentencing court revoked appellant’s probation at CR-2442-2018 and
resentenced appellant to one to two year’s incarceration in a state correctional
institution.
On January 15, 2019, appellant filed a petition for reconsideration,
which the sentencing court subsequently denied. Appellant filed a timely
notice of appeal. The sentencing court ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied. On March 18, 2019, the sentencing court filed an
Order stating that it was relying on the Gagnon II notes of testimony to
satisfy the requirements of Rule 1925(a).
2 35 P.S. § 780-113(a)(31)(i).
3 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining when parolee or probationer is detained pending revocation hearing, due process requires determination at pre-revocation hearing (Gagnon I hearing) of probable cause to believe violation was committed, and upon finding of probable cause, second, more comprehensive hearing (Gagnon II hearing) follows before trial court makes final revocation decision).
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Appellant sets forth the following issue for our review: “Was the
sentence imposed by the [sentencing] court manifestly excessive or otherwise
unjustified based upon the lack of any proportional punishment based upon
the nature of [appellant’s] probation violation and need for rehabilitation?”
(Appellant’s brief at 8.) Appellant’s claim presents a challenge to the
discretionary aspect of appellant’s sentence.
A challenge to the discretionary aspects of sentencing does not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this [c]ourt’s jurisdiction by satisfying a four-part test: (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, 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).
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016)
(footnote, quotation marks, and some citations omitted).
Here, the record reflects that appellant filed a timely notice of appeal,
preserved his issue by filing a petition for reconsideration of sentence, and
included a Rule 2119(f) statement in his brief. Therefore, we will examine
whether appellant’s claim raises a substantial question.
[A] determination of what constitutes a substantial question must be evaluated on a case-by-case basis and such question exists only when an appellant advances a colorable argument that the sentencing judge’s actions were either inconsistent with a specific provision of the Sentencing Code or contrary to the
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fundamental norms underlying the sentencing process.
Bynum-Hamilton, 135 A.3d at 184 (citation omitted).
Here, appellant’s claim that the length of his sentence was excessively
harsh and the sentence was unreasonably disproportionate to his probation
violation raises a substantial question. (See appellant’s brief at 12; see also
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super. 2006)
(stating, “claims that a penalty is excessive and/or disproportionate to the
offense can raise substantial questions”).) Therefore, we proceed to consider
the merits of appellant’s discretionary sentencing claim.
“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.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super.
2015), appeal denied, 126 A.3d 1282 (Pa. 2015).
Upon revoking one’s 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). However, the imposition of total confinement upon revocation requires a finding that [appellant] has been convicted of another crime, his conduct indicates it is likely he will commit another crime if he is not imprisoned, or such a sentence is essential to vindicate the court’s authority of the court. 42 Pa.C.S.A. § 9771(c).
Bynum-Hamilton, 135 A.3d at 184-185 (Pa.Super. 2016) (quotation marks,
ellipsis, and some citations omitted). A sentencing court may commit a
defendant to a state correctional institution or a county prison when the
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maximum term of incarceration is two years or more. 42 Pa.C.S.A.
§ 9762(a)(2).
Here, appellant characterized his parole violations as “minor,”
“technical” violations and contends that while incarceration may be
appropriate, a lesser sentence should have been imposed and he should have
been incarcerated in the county prison, not the state correctional institution.
(Appellant’s brief at 17.) The record demonstrates, however, that appellant’s
probation violation was the result of, among other things, appellant’s arrest
for possession of marijuana – small amount for personal use. This new arrest
is more than a minor, technical violation of his probation. The record also
reveals that appellant was an admitted gang member. (Notes of testimony,
1/7/19 at 4.) When appellant’s probation officer asked appellant if he was in
possession of a gun, appellant stated “no” but a loaded gun was subsequently
found in his bed. (Id. at 4-8.) Although appellant was aware he was not to
possess a firearm while on probation at CR-2442-2018, appellant continued
to possess a firearm. (Id.) Gun registration records did not reveal that
appellant lawfully purchased the gun. (Id. at 4.) The sentencing court
determined appellant was dangerous. (Id. at 8.) Furthermore, the
sentencing court accepted the probation officer’s recommendation that the
local county prison was unable to supervise appellant at this point. (Id. at 5.)
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Based upon our review of the record, we find no abuse of discretion on
the part of the sentencing court in resentencing appellant to one to two years’
incarceration in a state correctional institution.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/14/20
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