Opinion
J-A10045-14No. 1304 MDA 2013
03-28-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. RICHARD H. FLORY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 20, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002498-2000
CP-36-CR-0003465-2000
CP-36-CR-0003562-2000
BEFORE: DONOHUE, J., ALLEN, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.:
Appellant, Richard H. Flory, appeals from the June 20, 2013 aggregate judgment of sentence of three and one-half to seven years' imprisonment, with credit for time-served, imposed following the revocation of his parole and probation. After careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts and procedural history of this case as follows.
[Appellant] is a 40[-]year old individual with an extensive criminal history including convictions on twelve dockets, eleven of which were for Burglary, Theft, or Receiving Stolen Property, and at least four parole and probation violations. At the time of his most recent violation, [Appellant] was under supervision on three separate dockets: on [CP-36-CR-000]2498-2000 for Burglary (F-2) and Criminal Conspiracy to Commit Burglary (F-2); on [CP-36-CR-Trial Court Opinion, 9/24/13, at 1-4 (citations to notes of testimony omitted; footnotes and quotation marks in original). Thereafter, on July 19, 2013, Appellant filed a timely notice of appeal.
000]3465-2000 for Receiving Stolen Property (F-3); and on [CP-36-CR-000]3562-2000 for Burglary (F-2) and Theft by Unlawful Taking (M-2).
[Appellant] was initially sentenced on each of these dockets to an aggregate of one year less one day to two years less one day of incarceration followed by eight years of consecutive probation. [Appellant] was paroled from this sentence on January 29, 2004, and successfully completed his parole on March 25, 2005. [Appellant] then began serving the probation portion of his split sentence.
On April 9, 2009, a capias was issued alleging that [Appellant] violated the terms of his probation by failing to report to scheduled appointments with his probation officer. [Appellant] was incarcerated on May 22, 2010, and on May 25, 2010, the capias was amended to include that [Appellant] received a new charge of Driving Under the Influence. On June 25, 2010, it was determined that [Appellant] violated his probation. [Appellant]'s probation was revoked and he was resentenced to time[-]served to twenty-three months followed by two years of consecutive probation.
On November 24, 2010, a second capias was issued, this time alleging that [Appellant] tested positive for and admitted to using cocaine. The same day, [Appellant] was detained and remanded to Lancaster County Prison. On December 27, 2010, th[e trial c]ourt determined that [Appellant] violated his parole. The [trial c]ourt revoked [Appellant]'s parole and resentenced him to serve the unexpired balance of his sentences, making him eligible for parole after six months. [Appellant] was released from Lancaster County Prison on May 24, 2011.
On February 8, 2012, [Appellant] was found unconscious in the town square in Manheim, Pennsylvania. [Appellant] was transported to the hospital where it was determined that he lost consciousness as a result of consuming too much alcohol. [Appellant] had previously been ordered to
abstain from alcohol use as a condition of his supervision. Moreover, [Appellant] was charged with Public Drunkenness and Possession of Drug Paraphernalia in connection to this incident. Accordingly, on February 17, 2012, a capias was issued and [Appellant] was incarcerated. [Appellant] filed a petition for walk-in status, which Petition was granted, and he was released from Lancaster County Prison on March 15, 2012.
On May 1, 2012, [Appellant] called to reschedule an appointment with his probation officer, claiming that he had to work. [Appellant] was instructed to report to the probation office on May 4, 2012, but failed to appear, this time stating that he was in the hospital. A new appointment was scheduled for May 7, 2012 and [Appellant] was specifically directed to bring verification of his hospital stay. Once again, [Appellant] failed to report for his appointment. Accordingly, his walk-in status was revoked and a capias and a bench warrant were issued. While the bench warrant was still active, [Appellant] was charged with Receiving Stolen Property and Theft by Unlawful Taking, and the capias was amended to include the new offenses.
On April 10, 2013, th[e trial c]ourt found that [Appellant] violated his parole and probation on Counts 1 and 3 of [CP-36-CR-000]2498-2000, Count 1 of [CP-36-CR-000]3465-2000 and Counts 1 and 5 of [CP-36-CR-000]3562-2000, and his parole and probation were revoked. A Pre-Sentence Investigation (PSI) was ordered, and on June 20, 2013, [Appellant] was re-sentenced on all counts to three and one half to seven years of incarceration with all counts and all dockets to run concurrently to one another. The [trial c]ourt additionally ordered that [Appellant] was to be given "credit for all time served to date on these dockets."
[Appellant] filed a timely Post Sentence Motion to Modify Sentence[,] claiming, in part, that despite the [trial c]ourt's directive, [Appellant] only received credit for time[-]served on the most recent capias.
Accordingly, on July 10, 2013, th[e trial c]ourt issued an Order specifying that [Appellant] "shall receive additional credit towards the sentences imposed on June 20, 2013 for all time served on the original sentences and on all prior parole and probation violation sentences on these dockets."
1 18 [Pa.C.S.A.] § 3502(a).
2 18 [Pa.C.S.A.] § 903(a)(1).
3 18 [Pa.C.S.A.] § 3925(a).
4 18 [Pa.C.S.A.] § 3502(a).
5 18 [Pa.C.S.A.] § 3921(a).
6 [Appellant]'s initial sentence on docket number [CP-36-CR-000]3465-2000 was illegal because the total period of supervision was longer than the statutory maximum period of incarceration for a felony of the third degree, which is seven years. See 18 Pa.C.S.A. § 1103. However, both [Appellant] and the Commonwealth agree that this illegality was cured at [Appellant]'s first Parole and Probation Violation Hearing.
Appellant and the trial court have complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for our review.
I. Was an aggregate sentence of three and one half to seven years['] incar ceration for a probation/parole violation manifestly excessive and contrary to the fundamental norms underlying the sentencing process?Appellant's Brief at 5. For the purposes of our review, we have elected to address some of Appellant's claims concurrently.
II. Was the trial court's sentence of three and one half years to seven years on Information [CP-36-CR-000]3465-2000 for a felony of the third degree illegal because [Appellant] does not have seven years of eligible time remaining to serve because he successfully completed the parole portion of his original sentence?
III. Did the trial court err and abuse its discretion in failing to give [Appellant] time credit for all time served on Informations [CP-36-CR-000]2498-2000 and [CP-36-CR-000]3562-2000 despite ordering that [Appellant] was to receive "credit for all time served to date on these dockets[]"[?]
Our standard of review in assessing whether a trial court has erred in fashioning a sentence following the revocation of probation is well settled. The "[r]evocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court's decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion." Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. Super. 2010) (citation omitted). "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused." Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa. 2010). "Our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing." Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) (citations omitted). We also observe that, "whether an offender is serving a sentence of probation or intermediate punishment, if he violates the assigned conditions, the order of probation or intermediate punishment (as the case may be) may be revoked and a new sentence imposed." Commonwealth v. Wegley, 829 A.2d 1148, 1153 (Pa. 2003) (citations omitted).
[W]e must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. ... [A] sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.Id. at 887 (citations and quotation marks omitted).
We begin by addressing Appellant's challenge to the discretionary aspects of his sentence. Specifically, Appellant contends his aggregate judgment of sentence of three and one-half to seven years' imprisonment was "manifestly excessive" and inconsistent with the protection of the public and gravity of the offenses. Appellant's Brief at 14-16. Appellant further argues the trial court failed to impose an individualized sentence that took into consideration his rehabilitative needs, drug and alcohol dependency, and prior criminal history. Id.
Where an appellant challenges the discretionary aspects of his sentence, as is the case here, there is no automatic right to appeal, and an appellant's appeal should be considered a petition for allowance of appeal. Commonwealth v. W.H.M., Jr., 932 A.2d 155, 163 (Pa. Super. 2007). We will grant an appeal challenging the discretion of the sentencing court only where the appellant has advanced a colorable argument that the sentence is inconsistent with the Sentencing Code or contrary to the fundamental norms that underlie the sentencing process. Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005) (citations and quotation marks omitted), appeal denied, 890 A.2d 1057 (Pa. 2005).
Prior to reaching the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine the following.
(1) [W]hether 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. ... [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Applying the four-factor test to the present matter, we conclude Appellant has complied with the first three requirements. Accordingly, we proceed to consider Appellant's Rule 2119(f) statement to determine whether he has presented a substantial question for our review. "A substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the [sentencing] code or is contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (citation omitted), appeal denied, 13 A.3d 474 (Pa. 2010); see also 42 Pa.C.S.A. § 9781(b).
Instantly, our review reveals that Appellant has failed to present a substantial question for our review. This Court has long recognized that "a bald assertion that Appellant's sentence was excessive" does not raise a substantial question for our review. Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012), appeal denied, 62 A.3d 378 (Pa. 2013). Likewise, "[a]n argument that the sentencing court failed to adequately consider mitigating factors in favor of a lesser sentence does not present a substantial question appropriate for our review." Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 2011); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). Rather, the weight to be afforded the various sentencing factors is a discretionary matter for the sentencing court and its determination will not be disturbed simply because the defendant would have preferred that different weight be given to any particular factor. See e.g., Commonwealth v. Marts, 889 A.2d 608, 615 (Pa. Super. 2005). Accordingly, we conclude Appellant is not entitled to appellate review of the discretionary aspects of his sentence.
We recognize that "a claim that a particular probation revocation sentence is excessive in light of its underlying technical violations can present a [substantial] question that we should review." Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007) (citation omitted). As noted, however, Appellant does not make such an allegation in his Rule 2119(f) statement or his appellate brief.
Moreover, even if we were to reach the merits of Appellant's discretionary sentencing claims, they would nonetheless fail. Our review of the record reveals that the trial court properly considered all relevant factors in sentencing Appellant to an aggregate term of three and one-half to seven years' imprisonment following the revocation of his probation and parole, and placed its reasoning on the record at the June 20, 2013 hearing. See N.T., 6/20/13, at 5-7; see also Trial Court Opinion, 9/24/13 at 7-8. Additionally, we note that the trial court considered and relied upon a PSI report. N.T., 6/20/13, at 6. When a trial court has the benefit of a PSI report, we presume that it "was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa. 2007).
In his final two issues, Appellant challenges the legality of the June 20, 2013 judgment of sentence imposed following the revocation of his parole and probation. Appellant's Brief at 17. Specifically, Appellant avers the trial court erred in failing to ensure he was given credit for all time-served on docket numbers CP-36-CR-0002498-2000 and CP-36-CR-0003465-2000, causing him to be subject to a term of incarceration greater than the statutory maximum for a third-degree felony, or seven years. Id. at 22-24. Appellant maintains that he is entitled to credit for two years less one day, "for the time period from when he was released on his original sentence to the date he successfully completed his parole." Id. at 26. For the following reasons, we disagree.
It is axiomatic that "challenges to an illegal sentence can never be waived and may be reviewed sua sponte by this Court." Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) (citation omitted). It is equally well established that Pennsylvania law does not tolerate an illegal sentence, for "[a] challenge to the legality of a sentence . may be entertained as long as the reviewing court has jurisdiction." Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa. Super. 2011) (citation omitted). "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction." Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (citation omitted), appeal denied, 78 A.3d 1090 (Pa. 2013). "An illegal sentence must be vacated." Id. "Issues relating to the legality of a sentence are questions of law[; as a result, o]ur standard of review over such questions is de novo, and our scope of review is plenary." Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super. 2013) (citations omitted).
Instantly, Appellant's challenge to the legality of the June 20, 2013 probation revocation sentence, as well as all of his prior sentences pertaining to his underlying convictions, are devoid of merit. As noted, the record reflects that although Appellant's initial sentence at docket number CP-36-CR-0003465-2000 was illegal given the fact the total period of supervision was longer than the statutory maximum for a third-degree felony, this illegality was corrected at Appellant's first parole and probation violation hearing. See N.T., 6/25/10. Following the revocation of his parole and probation, the trial court re-sentenced Appellant on June 20, 2013 with all counts and all dockets to run concurrently to one another, and explicitly ordered that he receive "credit for all time served to date on these dockets." N.T., 6/20/13, at 7.
Contrary to Appellant's contention, he is not entitled to two years less one day of credit for completing the parole portion of his initial sentence. Pursuant to 42 Pa.C.S.A. § 9760,
[c]redit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based.Id. § 9760(1) (emphasis added).
Rather, this Court has repeatedly recognized that, "upon 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." Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal quotation marks and citations omitted). Thus, we conclude that the trial court's revocation sentence of three and one-half to seven years' imprisonment was legally within the statutory sentencing guidelines for third-degree felony. See 18 Pa.C.S.A. § 1103(3) (stating, "[i]n the case of a felony of the third degree, for a term which shall be fixed by the court at not more than seven years[]"). Appellant's remaining claims of error, therefore, must fail.
Accordingly, we affirm the trial court's June 20, 2013 judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. ________________
Joseph D. Seletyn, Esq.
Prothonotary