Commonwealth v. Ferguson

893 A.2d 735, 2006 Pa. Super. 18, 2006 Pa. Super. LEXIS 49
CourtSuperior Court of Pennsylvania
DecidedFebruary 1, 2006
StatusPublished
Cited by197 cases

This text of 893 A.2d 735 (Commonwealth v. Ferguson) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ferguson, 893 A.2d 735, 2006 Pa. Super. 18, 2006 Pa. Super. LEXIS 49 (Pa. Ct. App. 2006).

Opinions

[736]*736BENDER, J.:

¶ 1 Nicholas Ferguson (Appellant) appeals from the judgment of sentence entered following the revocation of his probation. On appeal, Appellant challenges the discretionary aspects of his sentence. For the following reasons, we vacate the judgment of sentence and remand for re-sentencing.

¶ 2 The trial court summarized the procedural history of this case as follows:

On July 31, 2002, Appellant was admitted into the Accelerated Rehabilitative Disposition (ARD) Program for two years at Docket Number 433 of 2002 for two counts of Attempted Theft, three counts of Theft and one count of Possession of Drug Paraphernalia. These offenses were all misdemeanors.
While in the ARD program, Appellant committed a series of felony drug crimes. Specifically, at Docket Number 3183 of 2002, Appellant committed four counts of Possession with Intent to Deliver (PWID) and two counts of Possession of a Controlled Substance and Conspiracy to PWID.
Appellant was revoked from ARD on February 21, 2003. On that same day Appellant pled guilty - as charged at Docket Number 433 of 2002 and Docket Number 3183 of 2002. At the latter docket, Appellant’s plea was to six felony and two misdemeanor offenses.
At his request, Appellant was admitted into the Erie County Drug Court on February 21, 2003. Appellant received a combined sentence of Restrictive Intermediate Punishment and probation at both docket numbers. He was allowed to remain under community supervision as part of his Drug Court program.
On January 6, 2005, Appellant’s probation and intermediate punishment sentences were revoked. Appellant’s sentence of six years of probation was re-imposed at Docket number 433 of 2002. Appellant received a period of incarceration of ’nine to twenty-four months on each of the first three Counts of PWID at Docket Number 3183 of 2002; on Counts 4, 7 and 8, his original terms of probation were reinstated while Counts 5 and 6 were merged with Counts 1 and 2. The result was an aggregated sentence at both docket numbers of twenty-seven (27) months to seventy-two (72) months incarceration followed by thirty-six (36) years of probation.
On February 23, 2005, Appellant petitioned for the reinstatement of his appellate rights, which was granted by Order dated the same day. On February 28, 2005, Appellant filed a Notice of Appeal. A Final Statement was filed on April 18, 2005. This Opinion is in response to Appellant’s Final Statement of Matters Complained of on appeal.

Trial Court Opinion (T.C.O.), 6/29/05, at 1-2. In this appeal, Appellant has presented two questions for our review:

I. Did the lower court commit reversible error in sentencing appellant to a period of total confinement after a revocation hearing without meeting the requirements of 42 Pa.C.S.A. § 9771?
II. Did the lower court commit reversible error in imposing a probation sentence of thirty-six (36) years without explaining how, as a matter of law, this sentence was the least stringent adequate to protect the community and to serve the rehabilitative needs of the appellant?

Brief for Appellant at 5.

¶ 3 Initially we note that both of Appellant’s claims are challenges to the discretionary aspects of his sentence. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.2004) (stating that a claim that [737]*737the trial court erred in imposing a sentence of total confinement upon revocation of probation is a challenge to the discretionary aspects of one’s sentence); Commonwealth v. Whitman, 880 A.2d 1250, 1251 (Pa.Super.2005) (stating that a claim that one’s sentence is excessive is a challenge to the discretionary aspects of the sentence).

Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the trial court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.

Id. (citations omitted). In his brief, Appellant has presented a statement of reasons for allowance of appeal arguing that the court erred in its application of section 9771 and that his sentence of total confinement and 36 years of probation were manifestly excessive. We conclude that both these issues present substantial questions for our review. See Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 624 (2002); McAfee, 849 A.2d at 274.

¶ 4 In determining that Appellant’s questions present substantial questions for our review, we note that as recently as 2004, this Court has stated that “[t]he scope of review in an appeal following a sentence imposed after probation revocation is limited to the validity of the revocation proceedings and the legality of the judgment of sentence.” Commonwealth v. Infante, 850 A.2d 696, 697-98 (Pa.Super.2004). However, in Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super.2000), this Court recognized that this was too narrow a statement of our scope of review.

It is often noted that our scope of review following a sentence imposed after revocation of probation is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence. This language was first set forth by our Supreme Court in Commonwealth v. Gilmore, 465 Pa. 202, 348 A.2d 425 (1975). Despite the continued use of this language by the courts of the Commonwealth, it is clear the Supreme Court did not intend to limit review to the legality of a sentence, i.e., whether it has been authorized by the legislature. The Supreme Court’s decisions subsequent to Gilmore belie such a narrow construction of appellate review. See Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981) (reviewing and setting aside a sentence of total confinement upon the revocation of probation, even though the sentence itself was legal).

Sierra, 752 A.2d at 913 n. 6. See also McAfee, 849 A.2d at 270 (a case in which we reviewed the discretionary aspects of the appellant’s sentence following a revocation of probation). Consequently, it is now accepted that it is within our scope of review to consider challenges to the discretionary aspects of an appellant’s sentence in an appeal following a revocation of probation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Dunkowski, A.
Superior Court of Pennsylvania, 2023
Com. v. Fountain, D.
Superior Court of Pennsylvania, 2023
Com. v. Suchite, R.
Superior Court of Pennsylvania, 2023
Com. v. Davis, E.
Superior Court of Pennsylvania, 2023
Com. v. Huffman, N.
Superior Court of Pennsylvania, 2023
Com. v. Harper, P.
2022 Pa. Super. 51 (Superior Court of Pennsylvania, 2022)
Com. v. Colbert, J.
Superior Court of Pennsylvania, 2021
Com. v. Kuhn, R.
Superior Court of Pennsylvania, 2020
Com. v. Illingworth, J.
Superior Court of Pennsylvania, 2020
Com. v. Merrick, P.
Superior Court of Pennsylvania, 2020
Com. v. Davis, S.
Superior Court of Pennsylvania, 2020
Com. v. Reiber, T.
Superior Court of Pennsylvania, 2019
Com. v. Obert, T.
Superior Court of Pennsylvania, 2019
Com. v. Edge, J.
Superior Court of Pennsylvania, 2019
Com. v. Sims, J.
Superior Court of Pennsylvania, 2018
Com. v. Whitaker, S.
Superior Court of Pennsylvania, 2018
Com. v. Grey, L.
Superior Court of Pennsylvania, 2018
Com. v. Claiborne, C.
Superior Court of Pennsylvania, 2018
Com. v. Rosser, A.
Superior Court of Pennsylvania, 2018
Com. v. Miller, H.
Superior Court of Pennsylvania, 2018

Cite This Page — Counsel Stack

Bluebook (online)
893 A.2d 735, 2006 Pa. Super. 18, 2006 Pa. Super. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ferguson-pasuperct-2006.