Opinion
J-S47045-15 No. 2185 MDA 2014
07-31-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DANNY STEVEN PURDUE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered November 24, 2014, in the Court of Common Pleas of Dauphin County, Criminal Division, at No(s): CP-22-CR-0004029-2013 and CP-22-CR-0005566-2013 BEFORE: ALLEN, OTT, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Danny Steven Purdue (Appellant) appeals from his November 24, 2014 judgment of sentence, which the trial court imposed after revoking Appellant's probation. We affirm.
On December 17, 2013, at trial court docket number CP-22-CR-0005566-2013, Appellant pled guilty to retail theft and criminal conspiracy. On December 19, 2013, at trial court docket number CP-22-CR-0004029-2013, Appellant pled guilty to retail theft. On that day, he was sentenced at both docket numbers to an aggregate term of 36 months' probation.
Appellant was subsequently arrested for incidents that occurred on January 5, 2014, January 6, 2014, January 31, 2014, February 1, 2014, and February 18, 2014. On November 18, 2014, a bench warrant was issued for Appellant. Appellant appeared for a Gagnon II hearing on November 24, 2014. The trial court found that the January 5th and 6th arrests violated Appellant's probation at the aforementioned docket numbers. The trial court revoked Appellant's probation at those docket numbers and sentenced him to an aggregate term of 7 to 48 months' incarceration.
The January 5th and 6th arrests occurred in Silver Spring, Pennsylvania. Appellant was charged with criminal conspiracy to commit retail theft and theft by unlawful taking. He subsequently pled guilty to theft by unlawful taking.
Appellant was arrested by the Carlisle Police Department and charged with felony retail theft and criminal conspiracy. On August 12, 2014, he was sentenced to 9 to 23 months' incarceration.
Appellant was again arrested by the Carlisle Police Department and charged with felony retail theft and criminal conspiracy. On August 12, 2014, he was sentenced to 9 to 23 months' incarceration.
Appellant was arrested by the Harrisburg City Police Department and charged with theft by unlawful taking. Appellant received a fine.
Gagnon v. Scarpelli , 411 U.S. 778 (1973).
Appellant filed timely a post-sentence motion where he argued that his sentence "should be downwardly modified as it is excessive and unreasonable in light of the alleged gravity of the offense...". Post-Sentence Motion, 12/4/2014, at ¶7. The trial court denied that motion, and Appellant timely filed a notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant argues his sentence is excessive, which this Court reviews as a challenge to the discretionary aspects of Appellant's sentence. See Appellant's Brief at 5. Commonwealth v. Ahmad , 961 A.2d 884, 886 (Pa. Super. 2008) ("A challenge to an alleged excessive sentence is a challenge to the discretionary aspects of a sentence."). It is within this Court's scope of review to consider challenges to the discretionary aspects of an appellant's sentence in an appeal following a revocation of probation. Commonwealth v. Ferguson , 893 A.2d 735, 737 (Pa. Super. 2006).
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (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.[] § 9781(b).Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (citation omitted).
The record reflects that Appellant timely filed a notice of appeal and that he preserved this issue by including it in his post-sentence motion. Moreover, Appellant has included in his brief a statement pursuant to Pa.R.A.P. 2119(f). We now consider whether Appellant has presented a substantial question for our review.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul , 925 A.2d 825, 828 (Pa. Super. 2007). "A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Griffin , 65 A.3d at 935 (citation and quotation marks omitted).
Appellant argues that his sentence is "excessive and unreasonable and constitutes too severe a punishment." Appellant's Brief at 10. Appellant submits that his "bad choices were the result of an addiction for which he has requested treatment[.]" Id. at 11. It is well settled that "a bald assertion that a sentence is excessive does not by itself raise a substantial question justifying this Court's review of the merits of the underlying claim." Commonwealth v. Fisher , 47 A.3d 155, 159 (Pa. Super. 2012). However, this Court recently reiterated several times "that an excessive sentence claim—in conjunction with an assertion the court failed to consider mitigating factors—raises a substantial question." Commonwealth v. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014) (citations omitted (citing Commonwealth v. Perry , 883 A.2d 599, 602 (Pa. Super. 2005)); Commonwealth v. Samuel , 102 A.3d 1001, 1007 (Pa. Super. 2014); Commonwealth v. Gonzalez , 109 A.3d 711, 731 (Pa. Super. 2015). Based on the foregoing, Appellant has raised a substantial question and we review this claim on its merits.
We analyze Appellant's claims mindful of the following.
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.
In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference.
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. [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. However, 42 Pa.C.S.[] § 9771(c) provides that once probation has been revoked, a sentence of total confinement may only 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
(3) such a sentence is essential to vindicate the authority of the court.
Commonwealth v. Colon , 102 A.3d at 1033, 1044 (Pa. Super. 2014) (citations and quotation marks omitted).
In addition, in all cases where the court resentences an offender following revocation 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 the defendant. A trial 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.
Appellant argues his sentence was excessive and unreasonable because, while incarcerated, he "worked double shifts in the kitchen and attended drug treatment for four months." Appellant's Brief at 14. Additionally, Appellant attended counseling and told the court that "he had been clean and crime-free for a six year period in the past." Id. Moreover, Appellant wanted to be "a positive role model for his child." Id.
The trial court reasoned that incarceration was necessary under these circumstances because Appellant is not "a very good role model for his son." N.T., 11/24/2014, at 8. The trial court stated: "I think [Appellant] is a thief that just keeps on stealing and it is best for our society to have him out." Id. at 8-9. The trial court expounded on this reasoning in its opinion.
While serving his probationary period on the dockets at issue, [Appellant] was charged on two separate occasions in Carlisle with felony retail theft and criminal conspiracy, was charged with theft by unlawful taking on yet another occasion in Harrisburg, and a bench warrant was issued on two additional dockets in Silver Springs for felony retail theft and criminal conspiracy. In recognizing [Appellant's] repeat behavior, this Court's conclusion that it is best for society to have [Appellant] incarcerated for a period of seven to forty-eight months is entirely appropriate and reasonable.Trial Court Opinion, 4/6/2015, at 3 (unnumbered).
Upon review, we discern no abuse of discretion. The record demonstrates that the violation court considered the appropriate sentencing criteria and reasonably concluded that probation was ineffective in rehabilitating Appellant and would not be in society's best interest.
In so doing, we stress that "[a]n abuse of discretion may not be found merely because an appellate court might have reached a different conclusion" than that reached by the trial court. Commonwealth v. Perry , 32 A.3d 232, 236 (Pa. 2011).
Because Appellant has failed to demonstrate that he is entitled to relief, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2015