Opinion
J-S46040-19 No. 2233 EDA 2018
09-24-2019
COMMONWEALTH OF PENNSYLVANIA v. JEROME PORTIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered June 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012464-2014 BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J. MEMORANDUM BY COLINS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Jerome Portis, appeals from the judgment of sentence of four to eight years of confinement followed by five years of probation which was imposed after the revocation of his initial sentence of probation for: manufacture, delivery, or possession with intent to manufacture or to deliver a controlled substance ("PWID"); conspiracy to commit PWID; and fleeing or attempting to elude police officer. We affirm on the basis of the trial court opinion.
35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903, and 75 Pa.C.S. § 3733(a), respectively.
In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. See Trial Court Opinion, filed February 13, 2019, at 1-5. Therefore, we have no reason to restate them. We briefly note that Appellant filed a timely post-sentence motion to reconsider sentence, which the trial court denied, and a timely notice of appeal.
Appellant filed his statement of errors complained of on appeal on October 22, 2018. The trial court entered its opinion on February 13, 2019.
Appellant presents the following issue for our review:
Whether the sentencing court erred as a matter of law and abused its discretion when, following a revocation of probation for technical violations, the sentencing court imposed a sentence of four to eight years' incarceration followed by five years' probation where this sentence was manifestly excessive and unreasonable, based on factors not supported by the evidence, surpassed what was required to protect the public, and failed to comply with the requirements of 42 Pa.C.S. § 9771(c).[]Appellant's Brief at vii.
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary sentencing issue[, w]e 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.A. § 9781(b).Commonwealth v. Manivannan , 186 A.3d 472, 489 (Pa. Super. 2018) (quotation marks and some citations omitted), reargument denied (July 7, 2018).
Total confinement may be imposed only if:
(1) the defendant has been convicted of another crime; or42 Pa.C.S. § 9771(c).
(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.
In the current case, Appellant filed a timely notice of appeal, preserved his issue in a post-sentence motion, and included a statement in his brief pursuant to Pa.R.A.P. 2119(f). Appellant's Brief at xiv-xvii.
The final requirement, whether the question raised by Appellant is a substantial question meriting our discretionary review, "must be evaluated on a case-by-case basis. 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." Manivannan , 186 A.3d at 489 (quotation marks and some citations omitted).
Appellant's Rule 2119(f) statement alleges that the trial court erred in its application of a specific provision of the Sentencing Code, 42 Pa.C.S. § 9771(c), and that Appellant's sentence of total confinement followed by probation is manifestly excessive. Appellant's Brief at xv-xvi. Both these issues present substantial questions for our review. See Commonwealth v. Ferguson , 893 A.2d 735, 737 (Pa. Super. 2006) (appellant "presented a statement of reasons for allowance of appeal arguing that the court erred in its application of section 9771 and that his sentence of total confinement and 36 years of probation were manifestly excessive"; this Court "conclude[d] that both these issues present substantial questions for [its] review").
Although we find that Appellant's Rule 2119(f) statement presents a substantial question, we note that Appellant's reliance therein on Commonwealth v. Wilson , 946 A.2d 767, 771 n.6 (Pa. Super. 2008), is baffling, as that case involved an appeal by the Commonwealth, pleading "that the trial court imposed an excessively lenient sentence and did not justify its sentence with sufficient reasons raises a substantial question in this case" (emphasis added). This argument appears to be antithetical to Appellant's contention in his Rule 2119(f) statement that his sentence was excessively severe; Appellant also does not suggest that the trial court failed to justify his sentence with sufficient reasons. See Appellant's Brief at xiv-xvii.
Before we proceed to the merits of Appellant's claim, we observe that Appellant's Rule 2119(f) statement additionally included an allegation that the trial court "relied on improper factors which were not supported by the evidence . . . in determining sentence" but does not elaborate in his Rule 2119(f) statement on what those factors were. Appellant's Brief at xvi. "[W]e cannot look beyond the statement of questions presented and the prefatory [Rule] 2119(f) statement to determine whether a substantial question exists. It is settled that this Court does not accept bald assertions of sentencing errors." Commonwealth v. Radecki , 180 A.3d 441, 468 (Pa. Super. 2018) (citation omitted). As we cannot look beyond the Rule 2119(f) statement to other parts of Appellant's brief in order to determine what these "improper factors which were not supported by the evidence" may be, we cannot accept Appellant's bald assertion and thus cannot find a substantial question based upon this allegation. Accordingly, we need only address the merits of Appellant's challenges to the discretionary aspects of his sentence pursuant to 42 Pa.C.S. § 9771(c) and his claim of manifest excessiveness and disproportionality.
Assuming we were to address Appellant's assertion that the trial court considered factors not in evidence when sentencing him, we would observe that the trial court explained that it did not consider anything outside the record, as Appellant had agreed to incorporate into the record of evidence from his violation hearings and from reports prepared by Appellant's assigned probation officer, thereby waiving the need for live testimony at the sentencing hearing. Trial Court Opinion, filed February 13, 2019, at 3, 10. To the extent that Appellant is arguing that the trial court "relied on improper factors which were not supported by the evidence in finding him in violation[,]" Appellant's Brief at xvi, Appellant does not include any challenge to the trial court finding Appellant in violation of his probation in his statement of the questions involved - only to the sentence imposed following the revocation of his probation. Appellant's Brief at vii. "No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Pa.R.A.P. 2116(a); see also Radecki , 180 A.3d at 468. Accordingly, we cannot consider the propriety of the underlying revocation, and we need only address challenges to the discretionary aspects of Appellant's sentence.
We have frequently noted that we review the imposition of sentence following the revocation of probation only to determine whether there was an abuse of discretion:
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.Commonwealth v. Allshouse , 33 A.3d 31, 37 (Pa. Super. 2011) (quoting Commonwealth v. Sierra , 752 A.2d 910, 913 (Pa. Super. 2000)); see also Commonwealth v. Lekka , 2019 PA Super 155, *8 (filed May 10, 2019) (standard of review for any challenge to discretionary aspects of sentencing, not just pursuant to probation revocation, is also that the "sentence will not be disturbed on appeal absent a manifest abuse of discretion").
Where probation is ineffective as a rehabilitative tool, a more severe sentence, up to and including total incarceration, is often warranted and appropriate. See Sierra , 752 A.2d at 913; Commonwealth v. Smith , 669 A.2d 1008, 1011 (Pa. Super. 1996).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Anne Marie B. Coyle, we conclude Appellant's challenges merit no relief. The trial court opinion comprehensively discusses and properly disposes of those questions. See Trial Court Opinion, filed February 13, 2019, at 4, 10-15 (finding: the sentence was not manifestly excessive, when the trial court merely imposed concurrent sentences of confinement followed by a probationary supervision period after Appellant repeatedly violated the terms of his probation and when the court could have imposed a term of total confinement of up to 47 years, i.e., the maximum sentencing alternative available to the court at the time of initial sentencing; Appellant's behavior was an affront to the court's authority, 42 Pa.C.S. § 9771(c)(2); Appellant is likely to commit another crime and is at risk for recidivism, with a criminal history showing he has been committing crimes since he was a juvenile, id. § 9771(c)(3); Appellant was involved in the large scale distribution of heroin; the pre-sentence report reflected that Appellant previously sold cocaine; Appellant gave a false address to authorities; Appellant's repeated drug screens reflected his continuing use of narcotics, and Appellant misrepresented prescriptions to hide this illegal drug use; "Appellant had well proven that probation was an ineffective rehabilitative vehicle and serve[d] as zero deterrence to his anti-social and criminal conduct"; confinement was the only way to protect the public; and, overall, Appellant "didn't do a single thing [he] was told to do despite the fact that [he] was given an unbelievable gift with [his initial] sentence" (citing N.T., 6/21/2018, at 20-24)).
When probation is revoked, "the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing[.]" 42 Pa.C.S. § 9771(b).
Accordingly, the trial court did not abuse its discretion, and we affirm on the basis of the trial court's opinion. The parties are instructed to attach the opinion of the trial court in any filings referencing this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/24/19
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