Commonwealth v. Dillman

70 Pa. D. & C.4th 24, 2004 Pa. Dist. & Cnty. Dec. LEXIS 273
CourtPennsylvania Court of Common Pleas, Berks County
DecidedDecember 22, 2004
Docketno. 3288-03
StatusPublished

This text of 70 Pa. D. & C.4th 24 (Commonwealth v. Dillman) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dillman, 70 Pa. D. & C.4th 24, 2004 Pa. Dist. & Cnty. Dec. LEXIS 273 (Pa. Super. Ct. 2004).

Opinion

LUDGATE, J,

On June 27, 2003, Jeffrey Dillman, defendant, was charged in a bill of information with: one count of criminal mischief, 18 Pa.C.S. §3304(a)(2); and three counts of disorderly conduct, 18 Pa.C.S. §§5503(a)(l), (a)(2) and (a)(4).

On July 21,2003, the defendant was sentenced to Berks County Prison to serve not less than 81 days, not more than 12 months on Count 2, disorderly conduct with credit for 81 days time served. He was also sentenced on Count 1 to a period of five years probation to commence at the expiration of the sentence imposed on Count 2.

On July 21, 2004, a bench warrant was issued for the defendant due to numerous violations of his probation, including failure to pay fines and costs, failure to comply with treatment, failure to abstain from the use of controlled substances and failure to abstain from the consumption of alcoholic beverages.

On October 19, 2004, this court ordered that the defendant’s probation be revoked, after holding a for[26]*26mal Gagnon II hearing and finding that the defendant was no longer amenable to a period of probation. The court then resentenced the defendant to six months to five years to the Bureau of Corrections for confinement in a state correctional facility on Count 1, criminal mischief.

On November 18, 2004, the defendant, by his attorney, Jeanne Trivellini, Esq., filed a notice of appeal to the Superior Court of Pennsylvania from this court’s October 19,2004 order in this matter. On November 23, 2004, this court ordered the defendant to file a concise statement of matters complained of on appeal within 14 days, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. The defendant provided such a statement on December 21,2004.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court requests that the instant appeal be denied.

The defendant raises the following matter for review in his 1925(b) statement:

“(1) The sentencing court abused its discretion when it resentenced defendant, following a Gagnon II hearing, to a term of six months to five years when such sentence was clearly unreasonable and excessive given the circumstances of the case and defendant’s personal experiences.”

It must first be noted that a trial court is given broad discretion when fashioning an appropriate sentence following the revocation of probation. Such a sentence will not be disturbed on appeal unless the Superior Court finds that there was an abuse of discretion. Commonwealth v. [27]*27Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001), quoting Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Indeed, the Superior Court’s review is limited to a determination as to the validity of the proceedings and as to the authority of the sentencing court to consider the sentencing alternatives that it had at the time of the initial sentencing. Commonwealth v. Gheen, 455 Pa. Super. 499, 501, 688 A.2d 1206, 1207 (1997). Furthermore, when sentencing a defendant following the revocation of probation, a trial court is limited only by the statutory maximum sentence that it could have imposed originally at the time of the initial sentencing. Commonwealth v. Ware, 737 A.2d 251, 254 (Pa. Super. 1999).

Moreover, even if the guidelines did apply in the instant case, the defendant’s claim that his sentence was excessive does not raise a substantial question. Sentencing ordinarily lies within the sole discretion of the trial court, and a sentence imposed will not be reviewed by an appellate court, unless it exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment. The Pennsylvania Supreme Court has held that a claim that a sentence that falls within the statutory limits is excessive can still raise a substantial question so as to justify appellate review. Commonwealth v. Mouzon, 571 Pa. 419, 435-36, 812 A.2d 617, 627-28 (2002). The Supreme Court went on to explain that in order to raise a substantial question, an appellant’s 2119(f) statement must “sufficiently articulate[] the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process.” Commonwealth v. Bromley, 862 [28]*28A.2d 598, 604 (Pa. Super. 2004), quoting Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002).

Here, the defendant was being resentenced after a probation violation and the court stated its reasons on the record for sentencing the defendant in the manner in which it did. At the Gagnon II hearing, the court heard from Steven Arms, the defendant’s probation officer; Richard Forty, the assistant chief of the Adult Probation Office who conducted the Gagnon I hearing; Ken Parzanese, a case manager for Service Access Management which provides mental health services to inmates at Berks County Prison; Mike McGee, the executive director of Berks County TASC which is an organization that finds public funding for drug treatment; James Phalen, the program director of Bowling Green, a residential inpatient substance abuse treatment center; as well as the defendant himself. After hearing all the testimony, this court stated the following:

“The Court: At a resentencing hearing, for the purposes of the record and so everyone understands, the guideline ranges do not apply here. The guideline ranges, just for the purposes of education, would have been an offense gravity score of five at the time, with a prior record score of one, making the standard range one to 12, aggravated to 15 months, and mitigated down to RS. This would be for the criminal mischief that occurred at the hotel here locally, which resulted in damage which is alleged in excess, I believe, of $5,000. Now, that having been stated — I don’t need this order. I dictated the order.

[29]*29“Let me be clear here. I considered all that testimony and I listened carefully to all that testimony before I made that decision, and I am satisfied that the defendant is indeed in violation of the rules that I stated. Now, that having been done — and I will indicate here that I will stay the bench warrant and make him eligible upon approval of a suitable parole plan. I will not add a penalty to the warrant costs of $122.

“Let me hear what the recommendation is from the probation office and then from Mr. Lightman, and I’ll hear from Mr. Dillman.

“The probation office: Your honor, having already revoked the probation, our recommendation is that he be sentenced to six months to five years, receive 90 days credit.

“The Court: You’re recommending six months to five years in the state penitentiary?

“The probation office: Yes, I am, your honor.

“The Court: All right. Ms. Lukach?

“The district attorney:

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Related

Commonwealth v. Ware
737 A.2d 251 (Superior Court of Pennsylvania, 1999)
Commonwealth v. Sierra
752 A.2d 910 (Superior Court of Pennsylvania, 2000)
Commonwealth v. Mouzon
812 A.2d 617 (Supreme Court of Pennsylvania, 2002)
Commonwealth v. Coolbaugh
770 A.2d 788 (Superior Court of Pennsylvania, 2001)
Commonwealth v. Gheen
688 A.2d 1206 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Bromley
862 A.2d 598 (Superior Court of Pennsylvania, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
70 Pa. D. & C.4th 24, 2004 Pa. Dist. & Cnty. Dec. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dillman-pactcomplberks-2004.