Opinion
J. S01016/17 No. 724 MDA 2016
03-07-2017
COMMONWEALTH OF PENNSYLVANIA v. BRIAN LUKE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 6, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000833-2014 BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.:
Appellant, Brian Luke, appeals from the Judgment of Sentence entered in the Luzerne County Court of Common Pleas following revocation of his probation. Appellant avers that the Commonwealth did not meet its burden of establishing that Appellant violated the terms of his special probation when he refused to attend sex offender treatment because the sentencing court had not specifically ordered such treatment. After careful review, we affirm on the basis of the trial court's Pa.R.A.P. 1925(a) Opinion, which concluded that the terms of Appellant's probation included the requirement that he undergo a mental health evaluation and comply with all treatment recommendations. Accordingly, the Board of Probation and Parole was authorized to require Appellant to undergo sex offender treatment, and his refusal to do so constituted a violation of the terms of his probations.
The trial court's Pa.R.A.P. 1925(a) Opinion includes a thorough and complete narrative of the facts and procedural history in this case, which we adopt for purposes of this appeal. See Trial Court Opinion, filed 7/20/16, at 1-4. While we will not go into exhaustive detail here, some of the relevant facts are as follows.
On April 30, 2014, the Luzerne County District Attorney filed a Criminal Information charging Appellant with False Alarm to Agency of Public Safety and Disorderly Conduct. Those charges arose out of an October 31, 2013 incident in which Appellant called the Wilkes-Barre General Hospital Crisis Center, claiming to have kidnapped an 11-year-old girl who he wanted to sexually abuse. While on the phone, Appellant claimed to be actively abusing the child, putting his fingers and penis inside of the child's vagina. Appellant described "how good it felt inside the little girl." Affidavit of Probable Cause, 11/15/13, at 1. The Crisis Counselor could hear Appellant moaning and what sounded like a young girl's muffled screams. Appellant then hung up. When police eventually located Appellant, he denied actually raping an 11-year-old girl, but admitted fantasizing about raping a young girl he saw riding her bicycle in the neighborhood. At the time that Appellant was charged, he was awaiting sentencing in two additional cases on charges of Stalking, Indecent Exposure, Open Lewdness, Disorderly Conduct, and Harassment.
18 Pa.C.S. §§ 4905, and 5503, respectively.
On May 5, 2014, Appellant pled guilty to one count of False Alarm to Agency of Public Safety and the Commonwealth withdrew the charge of Disorderly Conduct. The trial court then proceeded to sentencing in all three cases.
Appellant was sentenced to a term of imprisonment in the two original cases, and in the instant case, Appellant was sentenced to a term of 12 months of probation, set to run consecutive to all other sentences. In addition, the trial court ordered Appellant to undergo a Drug/Alcohol Evaluation and a Mental Health Evaluation, and to comply with all treatment recommendations made pursuant to those evaluations. As a result of those evaluations, it was recommended that Appellant undergo sex offender low-intensive treatment. Appellant refused to attend the treatment, not only while incarcerated, but also after being released on probation.
Because Appellant refused to attend sex offender treatment while incarcerated, he was not granted parole in either of his two original cases, and instead served the maximum sentences. --------
On March 4, 2016, the Pennsylvania Board of Probation and Parole notified the trial court that Appellant had violated his probation in the instant case by refusing to complete the recommended sex offender treatment. The trial court held a probation revocation hearing on April 6, 2016, at which time the trial court found that Appellant was in violation of the conditions of his sentence. The trial court revoked Appellant's probation, and sentenced him to a term of 4-24 months of incarceration.
Appellant timely-filed the instant appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue:
Whether the Commonwealth has met its burden of proof that [Appellant] violated the terms and conditions of his special probation.Appellant's Brief at 1.
In an appeal from a probation revocation order, "[o]ur standard of 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. Hoover , 909 A.2d 321, 322-23 (Pa. Super. 2006) (citing 42 Pa.C.S. § 9771(b)). "Revocation 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. Colon , 102 A.3d 1033, 1041 (Pa. Super. 2014) (citation and quotation omitted). "A probation violation is established whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct." Id. (citation and quotation omitted).
The Honorable David W. Lupas has authored a comprehensive, thorough, and well-reasoned Pa.R.A.P. 1925(a) Opinion, with references to the record and citations to relevant case law. After a careful review of the parties' arguments, and the record, we affirm on the basis of that Opinion, which concluded that although the trial court imposed the general requirement that Appellant undergo a mental evaluation and comply with all treatment recommendations, the Board of Probation and Parole could impose the more specific requirement of sex offender treatment. Trial Court Opinion, at 4-7 (citing Commonwealth v. Elliot , 50 A.3d 1284, 1292 (Pa. 2012) ("[T]he Board and its agents may impose conditions of supervision that are germane to, elaborate on, or interpret any conditions of probation that are imposed by the trial court.").
The parties are directed to attach a copy of the trial court's July 20, 2016 Pa.R.A.P. 1925(a) Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/7/2017
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