Opinion
853 MDA 2021
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. NATHAN BLAZE MILLS Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered April 2, 2020 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0001477-2017.
Joseph D. Seletyn, Esq.
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.[*]
MEMORANDUM
OLSON, J.
Appellant, Nathan Blaze Mills, appeals from his judgment of sentence, entered on April 2, 2020, wherein the trial court resentenced Appellant after revoking his County Intermediate Punishment sentence for technical violations. We affirm.
Although Appellant contends his appeal is from the May 20, 2020 order denying his post-sentence motion, an appeal properly lies from the judgment of sentence, as made final by such denial. See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc). We have amended the caption accordingly.
Briefly, on March 27, 2019, in connection with a fentanyl-related overdose death, Appellant pled guilty to involuntary manslaughter (18 Pa.C.S.A. § 2405(a)) and unlawful delivery of a schedule II controlled substance (35 P.S. § 78-113(a)(30)). On the same day, the trial court sentenced Appellant to, inter alia, 36 months' intermediate punishment. [As part of his intermediate punishment sentence, Appellant] also was directed to enroll in the
Good Wolf Treatment Court program and to comply with the program's rules and conditions.Commonwealth v. Mills, 249 A.3d 1145, *1 (Pa. Super. 2021) (unpublished memorandum). After Appellant stipulated to multiple technical violations, the trial court revoked Appellant's intermediate punishment sentence and resentenced him to an aggregate term of 60 to 120 months' imprisonment on April 2, 2020. Appellant filed a post-sentence motion which the trial court denied on May 20, 2020. Thereafter, Appellant appealed; however, this Court quashed the appeal due to an untimely filed notice of appeal pursuant to Pa.R.Crim.P. 708(E). See Mills, 249 A.3d 1145, at *3. The trial court reinstated Appellant's direct appellate rights on June 11, 2021. See Trial Court Order, 6/11/21. Appellant then filed the instant timely notice of appeal on June 25, 2021.
The Good Wolf Treatment Court is Franklin County's "problem-solving court for defendants whose drug addiction is the genesis for their criminal behavior." Trial Court Opinion, 5/20/20, at 2 n.6.
The trial court imposed consecutive, 30-to-60-month sentences at each count, for an aggregate term of 60 to 120 months' imprisonment. See Trial Court Opinion, 8/10/21, at 1.
The trial court entered an order directing Appellant to file a Rule 1925(b) concise statement within 21 days. See Trial Court Order, 7/2/21. Counsel for Appellant filed an untimely statement on July 27, 2021. Nevertheless, the trial court addressed the merits of Appellant's claims in its Rule 1925(a) opinion on August 10, 2021, and specifically noted that "the tardiness d[id] not inhibit [its] ability to comply" with Rule 1925. See Trial Court Opinion, 8/10/21, at 3 n.3.
Although dated June 30, 2021, the order was entered on the docket and copies sent to the parties on July 2, 2021. See Pa.R.A.P. 108(b); see also Trial Court Docket Entry No. 63, 7/2/21. Pursuant to the terms of the order, and in view of its effective date of July 2, 2021, Appellant needed to file his concise statement on or before July 23, 2021.
Ordinarily, the failure to comply with a trial court order to file a concise statement waives appellate review. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005). We acknowledge, however, that where a defendant in a criminal case is represented by counsel, "the untimely filing [of a concise statement] is per se ineffectiveness because [such conduct falls below the expected norms of representation] and is without reasonable basis designed to effectuate the client's interest and waives all issues on appeal." Commonwealth v. Burton, 973 A.2d 428, 432-433 (Pa. Super. 2009) (en banc).
Rule 1925(c)(3) was adopted by the Supreme Court to avoid unnecessary delay in the disposition on the merits of cases which results from per se ineffectiveness of appellant's counsel. [ ] Thus, if there has been an untimely filing, this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal. If the trial court did not have an adequate opportunity to do so, remand is proper.Id. at 433. Here, the trial court adequately addressed the issues Appellant raises on appeal. Accordingly, we will address the merits of Appellant's claims.
In addressing Appellant's claims instantly, we do not condone the behavior of counsel, whose untimely filings twice jeopardized his client's right to appellate review.
Appellant presents the following issues for review:
I. Whether the imposition of [Appellant's] sentence of total confinement on count 2, involuntary manslaughter, following revocation [] for a technical [] violation, and not for a new criminal offense, is, on its face, so disproportionate as to implicate the "fundamental norms which underlie the sentencing process"?
II. Whether the imposition of [Appellant's] sentence of total confinement on count 3, unlawful delivery of a schedule II substance, following revocation [] for a technical [] violation, and not for a new criminal offense, is, on its face, so disproportionate as to implicate the "fundamental norms which underlie the sentencing process"?
Appellant's Brief at 4 (extraneous capitalization omitted). Appellant's issues are interrelated and pertain to the discretionary aspects of sentencing, therefore we address them together.
When an appellant challenges the discretionary aspects of a sentence, the right to appeal is not absolute. Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Instead, before this Court can address the merits of such a challenge, we determine whether the appellant has invoked this Court's jurisdiction by satisfying a four-part test. See Commonwealth v. Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017) (stating, "[o]nly if the appeal satisfies these requirements may we proceed to decide the substantive merits of [an a]ppellant's claim").
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, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations omitted).
Instantly, Appellant filed a timely notice of appeal after the reinstatement of his appellate rights, properly preserved his claims by filing a post-sentence motion, and included a Rule 2119(f) statement in his brief. See Appellant's Brief at 6-7. Moreover, Appellant asserts that he raised a substantial question regarding "an unduly harsh sentence considering a sentence of total confinement, following revocation of probation for a technical parole/probation violation - and not for a new criminal offense." Id. at 7. Because Appellant presented a substantial question, we will address the merits of his claims. See Commonwealth v. Lucky, 229 A.3d 657, 664 (Pa. Super. 2020), citing Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) ("On appeal from a revocation proceeding, … a substantial question is presented when a sentence of total confinement, in excess of the original sentence, is imposed as a result of a technical violation of parole or probation.").
Sentencing is a matter vested in the sound discretion of the [trial court], and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the [trial] court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill[ ]will, or arrived at a manifestly unreasonable decision.Commonwealth v. Blount, 207 A.3d 925, 934-935 (Pa. Super. 2019) (citation omitted), appeal denied, 218 A.3d 1198 (Pa. 2019).
Preliminarily, we note that, effective December 18, 2019, the General Assembly repealed the relevant statutes authorizing the imposition, modification, and revocation of the state and county intermediate punishment programs and reclassified intermediate punishment as a type of probation. Commonwealth v. Hoover, 231 A.3d 785, 788 n.1, 790 (Pa. 2020) (plurality decision) (explaining that the General Assembly amended 42 Pa.C.S.A. § 9763 and repealed 42 Pa.C.S.A. §§ 9773 and 9774 relating to state and county intermediate punishment); see also Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super. 1998) (explaining that resentencing after intermediate punishment sentence is akin to resentencing following revocation of probation).
[A] trial court has broad discretion in sentencing a defendant, and concomitantly, the appellate courts utilize a deferential standard of appellate review in determining whether the trial court abused its discretion in fashioning an appropriate sentence. The reason for this broad discretion and deferential standard of appellate review is that the sentencing court is in the best position to measure various factors and determine the proper penalty for a particular offense based upon an evaluation of the individual
circumstances before it. Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed.
The sentencing court's institutional advantage is, perhaps, more pronounced in fashioning a sentence following the revocation of probation, which is qualitatively different than an initial sentencing proceeding. At initial sentencing, all of the rules and procedures designed to inform the court and to cabin its discretionary sentencing authority properly are involved and play a crucial role. However, it is a different matter when a defendant reappears before the court for sentencing proceedings following a violation of the mercy bestowed upon him in the form of a probationary sentence. For example, in such a case, contrary to when an initial sentence is imposed, the Sentencing Guidelines do not apply, and the revocation court is not cabined by Section 9721(b)'s requirement that "the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.[A] § 9721.
Upon revoking probation, "the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation." 42 Pa.C.S.[A.] § 9771(b). Thus, upon revoking probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence, although once probation has been revoked, the court shall not impose a sentence of total confinement unless it finds that:
(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.
42 Pa.C.S.[A.] § 9771(c).
Moreover, 42 Pa.C.S.[A.] § 9721(b) specifies that in every case following the 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." See also Pa.R.Crim.P. 708([D])(2) (indicating at the time of sentence following the revocation of probation, "[t]he judge shall state on the record the reasons for the sentence imposed.").
However, following revocation, a sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statutes in question. Simply put, since the defendant has previously appeared before the sentencing court, the stated reasons for a revocation sentence need not be as elaborate as that which is required at initial sentencing. The rationale for this is obvious. When sentencing is a consequence of the revocation of probation, the trial judge is already fully informed as to the facts and circumstances of both the crime and the nature of the defendant, particularly where [] the trial judge had the benefit of a [presentence investigation ("PSI") report] during the initial sentencing proceedings.Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (case citations, footnote, and some quotations omitted). Furthermore, "[t]echnical violations can support revocation and a sentence of incarceration when such violations are flagrant and indicate [a resistance] to reform." Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007).
Appellant acknowledged that the trial court "did take into account the principles outlined in the sentencing code prior to imposing sentence[, ] specifically noting that the original sentence placed a priority on Appellant's rehabilitative needs over the remaining factors." Appellant's Brief at 8.
Appellant argues, however, that the trial court violated the requirements of § 9771(c) because nothing in the record indicated that he was likely to commit a future crime if not imprisoned. Id. at 11. To support his contention, Appellant noted that he did not commit a new criminal offense during his probationary period, obtained gainful full-time employment, regularly visited with his children, enjoyed a support system in the community, abstained from using or selling heroin after his release from jail, and made "substantial progress in his recovery" despite being removed from the Good Wolf Treatment Court. Id. at 9.
Appellant's argument overlooks that the trial court endeavored on a deep and thorough consideration of the relevant circumstances, including those cited by Appellant, prior to imposing sentence. Specifically, at the April 2, 2020 sentencing hearing, defense counsel noted that Appellant completed inpatient treatment at Gaudenzia Treatment Center and voluntarily entered and completed a program at Daystar, worked full-time, was involved with his children, committed no new crimes, and enjoyed support from his community including his mother and girlfriend. See N.T. Sentencing Hearing, 4/2/20, at 8-11. Appellant also testified that he wanted to be a part of his children's lives and that, although he made mistakes, he was committed to his recovery. Id. at 11. The trial court then explained:
[Appellant], in imposing sentence, I've considered the Franklin County Adult Probation Department's intermediate punishment resentence summary sheet and all the attachments thereto which include the sentencing guidelines. And in this case, it's [six] to 14 months on the involuntary manslaughter and [six] to 14 months
on the delivery of [f]entanyl. The [c]ourt is not bound by those guidelines. But we must consider them. And we have done so.
We note a couple of things in weighing what we've heard in addition to the report. We've considered everything said here today on the record. We have considered our knowledge of your performance in the Good Wolf Treatment Court. And we began to preside as primary Good Wolf Treatment Court judge at the end of your time in the Good Wolf Treatment Court.
In fact, I was sitting in the courtroom presiding at the time you were taken into custody in anticipation of removal from the program.
And I distinctly remember, [Appellant], as you were being led out by the deputies[, ] the vulgarity you expressed regarding what was happening to you. That told me basically everything I needed to know about your view of things and how the world treats you.
Most disappointing of all, [Appellant], is the absolute chance that both the Commonwealth, the victim's family, the [c]ourt, probation, the treatment team staff, all that absolute uncertainty that they set aside to give you a chance to become a different person, to become a new person, to demonstrate that you are fit to remain in the community and that you conquered the demons that latched [onto you].
That was a tremendous chance. [] I hope you can appreciate what it takes for someone like the District Attorney to speak with a grieving family and ask them to consider giving you a chance, the family that feels you're primarily responsible for the death of their child.
It absolutely breaks my heart, [Appellant], to have you sitting here in this position. The Good Wolf Treatment Court is designed based on research. It's designed on taking a progressive view of how to help people stop committing criminal behavior. Tremendous resources are invested in those limited individuals that are in that program.
You are in trouble within basically a week of you getting out of Daystar, not doing what was being required of you, failing to turn in meeting forms, your journal. You were given a written warning about that. You were given community service as a sanction.
You failed to report a number of times. You failed to appear for court. Then when they did finally see you in November, you're testing positive for using Percocet and marijuana. You went to jail. You were in court again within a week. You were given a sanction. You were back within another week or so, little more than a week.
President Judge at that time[, ] Judge Van Horn gave you another chance. And within two weeks of being released, you're back doing the same things, not turning in your journal, not providing what's required of you. [Judge Van Horn] sanctioned you again.
Then when you came before me January 21st of 2020, I remember this. I remember you. I exactly remember, distinctly remember, [Appellant]. I knew what had been going on with you. Treatment team talks about the participants before the proceedings.
You came up in front of me. I remember. My first question to you [was, "]How is it going[?"] And it was not[, "]It's going awful, I'm not doing what I'm supposed to be doing, I'm in trouble, I need help. I need[…" Rather, you responded, "]It's going all right.["]
[ ]
At that point, you had already missed treatment sessions with your provider. They unsuccessfully discharged you. That just - that just breaks my heart, [Appellant]. [ ] But just reading from what's undisputed in your supervision history, there's absolutely no indication that this was anything taken seriously by you. I'm not diminishing how you feel about causing your friend's death. You should feel miserable about that. And I say that. You caused your friend's death.
[ ]
In imposing sentence, the [c]ourt is required to consider by statute a number of different things in a certain order of priority. The first of which is the protection of the public and the nature of the offense. The second is the gravity of the harm to the victim. And the third in that order of priority is rehabilitation. Your needs, your rehabilitative needs.
I point this out because at the beginning of this case when you were sentenced, that's what I mean by case, the District Attorney,
your own attorney, the victim's family, the [c]ourt, everybody agreed to reorder that and put you first. Put rehabilitative needs first in that order of priority.
And [] everybody did that with no guarantees. But there was something about you they thought, [t]his is going to work. We can do this. We know he can do it. And for whatever reason, [Appellant] - it doesn't make any sense to me - you spit all over that.
Second, I do not appreciate when people come before me and talk about how important their family is to them because if they are important, your actions will line up with your words. I have no doubt, [Appellant], you love your children. But love is far more than just a feeling. It's an action. It's your dedication to doing whatever it takes to be available for them.
And the fact that you could not see back in March and September of 2019 and October of 2019 and November of 2019 into December that complying with what was required of you in the treatment court is what you needed to do to be available for your children is perhaps the most indicative thing of all.Id. at 12-16.
Upon review, we discern no abuse of discretion by the trial court in imposing an aggregate sentence of 60 to 120 months' confinement, comprised of two consecutive 30-to-60 month sentences, following revocation of Appellant's intermediate punishment. The record reflects the trial court's thorough understanding and consideration of the facts of this case and Appellant. The trial court expressly considered the section 9721(b) sentencing factors. Moreover, though not stated explicitly, it is clear the trial court imposed a sentence of total confinement because it was essential to vindicate the authority of the court. See 42 Pa.C.S.A. § 9771(c)(3); Commonwealth v. Cappellini, 690 A.2d 1220, 1226 (Pa. Super. 1997) (finding trial court was "not required to parrot the criteria of the Sentencing Code" so long as record supported determination that sentence was essential to vindicate its authority). Appellant's lack of success while under supervision, failure to appear on numerous occasions for treatment and for court dates, failure to complete the tasks assigned through the Good Wolf Treatment Court, and ultimate discharge from the program showed that despite his remorse for the death of his friend, Appellant would not respect the authority of the court or fully commit to his own recovery. While it is commendable that Appellant completed a treatment program at Daystar, it does not negate Appellant's continued and substantial non-compliance with the Good Wolf Treatment Court portion of his intermediate punishment sentence since his release from prison. Appellant's "flagrant" technical violations demonstrated his "inability to reform" such that they support the trial court's imposition of total confinement. Carver, supra. Accordingly, we find no abuse of discretion. Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.