Opinion
J-S52005-18 No. 584 MDA 2018
10-10-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAMES LEE NEAL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 21, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003398-2001 BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, James Lee Neal, appeals nunc pro tunc from the judgment of sentence of an aggregate term of 10 to 20 years' imprisonment, followed by 15 years' probation, imposed after his probation was revoked in a case where he pled guilty to multiple counts of various sexual offenses, including criminal solicitation of rape of a person less than 13 years old. Appellant contends that his sentence is manifestly excessive and unreasonable. After careful review, we affirm.
The facts underlying Appellant's convictions are not pertinent to the present appeal. We need only note that in 2001, he pled guilty to multiple counts of criminal solicitation to commit the offenses of: rape of a person less than 13 years old, statutory rape, involuntary deviate sexual intercourse (IDSI), aggravated indecent assault of a person less than 13 years old, indecent assault of a person less than 13 years old, indecent exposure, corruption of minors, criminal use of a communication facility, and sexual abuse of children (offenses relating to child pornography).
On July 10, 2002, Appellant was sentenced by the Honorable Jeannine Turgeon to a cumulative sentence of thirty-six to seventy-two months plus two consecutive terms of five years each of state parole and probation.7 On March 21, 2011, Appellant was revoked and again sentenced by the Honorable Jeannine Turgeon.8
7 See Sentencing Order dated July 10, 2002. It appears that [Appellant] was sentenced to twenty-five counts. The Transcript of Proceedings from the sentencing were not filed of record. Additionally, terms of parole were recommended in this order.
8 See Order of Court dated March 21, 2011 (filed April 7, 2011). Appellant had maxed out his sentence at Counts 1, 2, 3, 7-12, 23-25. Appellant was resentenced at the remaining counts. At Count 4, Appellant was sentenced [to] one to five years at a state correctional institute. At the remaining counts, Appellant was sentenced to a consecutive sixty months state probation, all consecutive to each other. Additional conditions were also set.
Appellant was before this [c]ourt on March 21, 2017[,] for a [second] revocation hearing. Appellant also picked up a new charge at docket 5782-CR-2016.9 Appellant pled guilty and received a one and a half to three year sentence. At the revocation hearing, Dauphin County Probation Officer Michael Heisey testified to the following:
[Appellant] was discharged from Commonwealth Clinical due to having pornography and the new charge, as well as State parole agents found numerous pornographic images, text messages, and websites on a ... cell phone [registered under] Megan's Law, as well as [Appellant] had an
unregistered cell phone, which was one of the [bases] for his new criminal charges.
9 Appellant was charged with failure to comply with registration requirements. 18 Pa.C.S.[] § 4915.1[.]
Trial Court Opinion (TCO), 5/25/17, at 1-3 (some footnotes omitted).
Officer Michael Daub, employed by the Pennsylvania Board of Probation and Parole, also testified at the revocation hearing. On August 30, 2016, Officer Daub conducted a home visit of Appellant's residence. Appellant disclosed that he had a cell phone and that there was pornography on it. N.T. [Revocation/Resentencing Hearing, 3/21/17,] at 12. There [were] also text messages with a female who pretended she was a minor female. Id. Appellant disclosed that he had another cell phone with Facebook on it and that cell phone had more sex websites and pornography on it. Id. Despite [Appellant's] knowing that it had to be registered, the cell phone was not registered. Id. As a result of these violations, Appellant was taken into custody. Appellant's probation was revoked. After a revocation hearing, in which this [c]ourt found that Appellant violated his terms and conditions of probation, Appellant was resentenced to a period of incarceration ... of not less than 120 months['] nor more than 240 months[' incarceration, plus 15 years' probation,] to run consecutive to the sentence at docket 5782-CR-2016.
On March 31, 2017, Appellant filed a Motion to Reconsider Sentence. The Commonwealth filed a response[,] and Appellant's Motion was denied on April 24, 2017. A notice of appeal was filed on April 20, 2017.
Specifically, the trial court imposed 10 to 20 years' incarceration for Appellant's conviction of solicitation of IDSI, for which he had originally been sentenced to fines and costs, and then to a term of 5 years' probation after his first revocation-of-probation proceeding. Appellant was also sentenced to consecutive terms of 10 months' probation, and 5 months' probation, for solicitation of statutory rape and solicitation of indecent assault of a person less than 13 years of age, respectively. For both of those offenses, Appellant had originally received a sentence of fines and costs, and then periods of probation after his first revocation proceeding.
The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, and he timely complied. The trial court then filed a Rule 1925(a) opinion. However, Appellant ultimately failed to file a brief with this Court and, as such, we dismissed his appeal on October 25, 2017. Appellant then filed a petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the reinstatement of his direct appeal rights. The court granted that petition, and Appellant filed a notice of appeal nunc pro tunc. He timely-filed his appellate brief, raising the following issue for our review:
Was not the imposition of a probation violation sentence of 10 to 20 years of incarceration, plus 15 years of consecutive probation, clearly unreasonable, so manifestly excessive as to constitute an abuse of discretion, and inconsistent with the protection of the public, the gravity of the offenses, and [Appellant's] rehabilitative [needs]?Appellant's Brief at 4 (unnecessary capitalization omitted).
To begin, we note that:
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa. Super. 2000). 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 [the] 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. Evans , 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann , 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (quoting Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010)).
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." Sierra , supra at 912-13.
Before we address the issue Appellant presents herein, we note that this case illustrates a common problem that this Court faces when reviewing sentencing issues. Specifically, Appellant has not clearly presented the same sentencing claim(s) in his post-sentence motion, Rule 1925(b) statement, Rule 2119(f) statement, and Argument portion of his appellate brief. For instance, in Appellant's post-sentence motion, he stated that the court should reconsider his sentence, and impose a term of probation, because:
a. [Appellant] is fifty (50) years old;
b. [Appellant] suffers from anxiety and cooperates with medication management for that disorder;
c. [Appellant] has already served eleven (11) years in prison for these crimes;
d. Prior to his current period of incarceration, which began on August 31, 2016, [Appellant] avers that:
1) He was employed through a temp service [called] At Work; and
Post-Sentence Motion, 4/3/17, at 2.2) He attended his sexual offender treatment sessions.
Then, in his Rule 1925(b) statement, Appellant presented his issue as follows:
1. The trial court abused its discretion in sentencing Appellant to an aggregate sentence of no less than one hundred and twenty (120) months and no more than two hundred and forty (240) months in a state correctional institution with an additional sixty (60) months of probation, all running consecutive to the sentence at 5782 CR 2016 (no less than eighteen months nor more than thirty-six months with a consecutive sixty months of probation), where such sentence is excessive and unreasonable as the trial court failed to consider, inter alia, Appellant's age, his treatment and rehabilitative needs, his connections to the community, and the fact that Appellant has already served an extended part of his original sentence in the state correctional system.Rule 1925(b) Statement, 5/15/17, at 1-2.
Next, in Appellant's Rule 2119(f) statement, he sets forth the following argument, in pertinent part:
Primarily for technical violations of probation, the court imposed a sentence of 10 to 20 years of incarceration to be followed by 15 years of probation. That sentence was ordered to be served consecutively to a previous sentence. [Appellant] ... contends that his sentence is inappropriate under the Sentencing Code.
...
The court's sentence was so manifestly excessive as to constitute an abuse of discretion. Furthermore, the sentence was not consistent with the protection of the public, the gravity of the offenses, and [Appellant's] rehabilitative needs.
...
Given [Appellant's] history and background, the application of the guidelines would be clearly unreasonable.
The court imposed the 10-20 year sentence consecutively to a sentence that [Appellant] previously received. The imposition of consecutive sentences in this case[] was so manifestly excessive as to constitute an abuse of discretion.Appellant's Brief at 13-16 (internal citations omitted).
...
In imposing sentence, the trial court focused solely on the nature of the criminal conduct and the need to protect others, raising a substantial question as to the sentence's propriety pursuant to Commonwealth v. Ruffo , 360 Pa. Super. 180, 520 A.2d 43 (1987).
Therefore, [Appellant] submits that he has raised a substantial question as to the appropriateness of the sentence under 42 Pa.C.S. §§ 9725, 9771(c), and 9781 (c)(2).
Finally, in the argument portion of his brief, Appellant contends, in pertinent part:
Given [Appellant's] history and background, the application of the guidelines would be clearly unreasonable.
The court imposed the 10-20 year sentence consecutively to a sentence that [Appellant] previously received in another county. The imposition of consecutive sentences in this case[] was so manifestly excessive as to constitute an abuse of discretion.
...
In imposing [the] sentence, the trial court focused solely on the nature of the criminal conduct and the need to protect others, raising a raising a substantial question as to the sentence's propriety pursuant to Commonwealth v. Ruffo , 360 Pa. Super. 180, 520 A.2d 43 (1987).
In addition, the sentence imposed by the trial court was not consistent with the protection of the public, the gravity of the offenses, and [Appellant's] rehabilitative needs, as required by 42 Pa.C.S. § 9721.
Instantly, [Appellant] received [a]n extremely draconian sentence based solely on the district attorney's belief that he was
a danger to the community. [Appellant], however, has never committed any hands-on sexual offenses either with an adult or with a minor. His involvement in the criminal justice system began in 2001 when an agent for the Attorney General pretended to be a father willing to hand over his minor children to adult men for sexual activity. He was charged with numerous solicitation offenses resulting from the Attorney General's sting operation. After serving 6 years of imprisonment for those solicitation offenses, [Appellant] underwent 2½ years of probation without committing any offenses. His probation was violated because of sexual fantasies that he kept in a journal. He received a new jail sentence of 1 to 5 years, which was actually shorter by one year than the jail component of the original sentence.Appellant's Brief at 19-22.
The instant revocation was based on similar fantasy conduct. [Appellant] was regularly attending his sex offender counseling, but did not reveal his involvement with pornography and fantasy-based text exchanges. He also registered only one of his two cell phones with the State Police. [Appellant] was employed regularly and was taking his anti-anxiety medication.
The lower court could have vindicated its authority by imposing a much lesser jail sentence to be followed by lengthy probation. [Appellant] would have participated in counseling while serving his state prison sentence. He would have continued counseling upon his release.
The court abused its discretion in acceding to the Commonwealth's demand for a draconian prison sentence based on generalized claims that [Appellant] was a danger to the community.
We have spent significant time and effort attempting to cross-reference and pick apart the four at-issue documents to discern what, if any, claims were preserved for our review. What this endeavor has demonstrated is that no claim is clearly set forth in each of those documents. This lack of clarity has greatly hampered our review.
Additionally, the trial court's Rule 1925(a) opinion does not touch on each of the contentions set forth in the Argument section of Appellant's brief, as they were not plainly raised in his Rule 1925(b) statement. Specifically, the court does not address Appellant's assertions that it focused only on the risk he poses to society, or that his sentence is excessive where he never committed any 'hands on' offenses, and his violation of probation (i.e., engaging in 'fantasy conduct') was not severe. These claims were not presented in Appellant's Rule 1925(b) statement, nor in his post-sentence motion. Likewise, Appellant's contention that the court abused its discretion by imposing his current sentence to run consecutively to his sentence in 5782-CR-2016 was not preserved in his post-sentence motion and, in any event, Appellant offers no meaningful discussion of that claim in his Argument. Based on this record, we deem Appellant's sentencing claims waived. See , generally , Commonwealth v. Bullock , 948 A.2d 818 (Pa. Super. 2008) (stating that the right to appeal a discretionary aspect of sentence is not absolute and is waived if the appellant does not challenge it in post-sentence motions or by raising the claim during the sentencing proceedings); Commonwealth v. Kiesel , 854 A.2d 530, 533 (Pa. Super. 2004) (directing that this Court may enforce the requirements of Rule 2119(f) sua sponte and deny the allowance of appeal on a discretionary aspects of sentencing claim); Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").
Nevertheless, even had Appellant preserved the assertions he presents in his appellate brief - and assuming that they constitute a substantial question for our review - we would be compelled to deny him sentencing relief. In addressing the issue preserved in Appellant's Rule 1925(b) statement, the trial court explained:
When reviewing an appeal from a sentence imposed following the revocation of probation, an abuse of discretion standard applies. Commonwealth v. Mazzetti , 9 A.3d 228, 230 (Pa. Super. 2010)[,] [affirmed], 44 A.3d 58 ([Pa.] 2012) (citation omitted). In order to find an abuse of discretion, Appellant must prove that the sentencing court acted with "manifest unreasonableness, or partiality, prejudice, bias, or such lack of support as to be clearly erroneous." The Pennsylvania Sentencing Code permits a sentencing court to impose a sentence of total confinement upon revocation of probation if it makes a finding 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.13
13 42 Pa.C.S. § 9771.
Accordingly, this [c]ourt took into account Appellant's personal history, rehabilitative needs, and the nature of Appellant's crimes. First, while on probation, Appellant picked up an additional charge at docket number 5782-CR-2016 (failure to comply with registration requirements). Additionally, [] Appellant picked up these charges in 2001 and a sentence was fashioned by the Honorable Jeannine Turgeon that avoided a lengthy sentence of incarceration and set forth terms of parole.14 However, in 2011 Appellant was revoked and again resentenced by the Honorable Jeannine Turgeon. Additional conditions of supervision applied. Finally, in 2016, Appellant picked up an additional charge and violated his terms of probation. Appellant has been afforded the
opportunity to address his pornography addiction but has continually 'thumbed' his nose at this court.
14 Again, we note that Appellant was charged at 24 counts of various sexual behavior, including two felony one charges (18 Pa.C.S.[] § 3121).
Additionally, we note that the testimony provided by Probation Officer Michael Heisey and Officer Michael Daub is troubling. Appellant has shown a repeated path of sexual deviancy[,] which include[s] chatting, sexting, and arranging sex online after his release from state prison. N.T. at 6. Appellant also concealed a phone from parole agents to access pornography on Facebook, participating in role playing and sexual texting[,] along with Craig's list posts. Id. Appellant was also discharged from Commonwealth Clinical Treatment. [ Id.] at 8. Finally, Officer Daub testified that when he conducted a home visit, Appellant answered the door while trying to pull his underwear up. Appellant disclosed that he had a cell phone with pornography on it. [ Id.] at 12. On this cell phone, there were text messages with a female who pretended that she was a minor female. [ Id.] There were various degrees of assault of sexual activities (such as bondage and hard core porn). Id. Appellant contends that such a sentence is unreasonable in light of Appellant's "age, treatment and rehabilitative needs, [and] his connections to the community." We disagree. Appellant is a 53 year old man who has, over the past decade and a half, continually been engaged in sexual behavior including pornography. Appellant offered no evidence that his treatment and rehabilitative needs are being met in the community. Appellant will get the proper treatment [he] needs in a state correctional institute. Also, Appellant offered no evidence to support his "connections to the community" or that he is contributing to society in a beneficial manner.
As such, this Court fashioned a ten to twenty year sentence15 based on Appellant's lack of success on parole and the need for further rehabilitation and the above-mentioned factors.
TCO at 3-5.15 See 18 Pa.C.S. § 1103(1) (setting 20-year maximum for [a] felony of the first degree).
It is apparent from the record in this case, and the court's above discussion, that the court did not abuse its discretion in fashioning Appellant's sentence. The court took into account Appellant's age, background, criminal history, risk he poses to the public, and his rehabilitative needs. While the court placed weight on the danger Appellant poses to society, it did not focus only on this factor. Moreover, the court fully explained why a sentence of incarceration is necessary to vindicate its authority, protect the public, and best serve Appellant's rehabilitative needs. Accordingly, even had Appellant preserved his sentencing claim for our review, we would discern no abuse of discretion by the trial court in fashioning his sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018