Opinion
J-A03037-16 No. 338 EDA 2015
03-18-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. HARVEY PROCTOR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004006-2012; CP-51-CR-0015014-2008 BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Harvey Proctor, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following revocation of his probation. We affirm.
In its opinion, the trial court fully set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add only that Appellant timely filed a notice of appeal on January 20, 2015. On February 17, 2015, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issue for our review:
WAS NOT THE SENTENCE OF TWO TO FIVE YEARS['] INCARCERATION FOR A TECHNICAL VIOLATION OF
PROBATION (LEAVING [APPELLANT'S] MENTAL HEALTH TREATMENT PROGRAM) MANIFESTLY EXCESSIVE AND UNREASONABLE UNDER THE CIRCUMSTANCES, AS WELL AS FAILING TO COMPLY WITH 42 PA.C.S. § 9771(C)?(Appellant's Brief at 4).
Appellant argues his sentence of two to five years' incarceration is manifestly excessive for a technical violation of probation. Appellant asserts he suffers from paranoid schizophrenia, and he absconded from the mental health treatment facility in a panic because he mistakenly believed he would be discharged for having sex with another resident. Appellant claims he attempted to seek treatment elsewhere. Appellant submits he also tried to turn himself in to the police twice but was turned away each time because the police had no notice of a bench warrant. Appellant contends his sentence was inconsistent with 42 Pa.C.S.A. § 9771(c), as he was not convicted of another crime, there was no reason to believe he would commit a crime if not imprisoned, and he showed no consistent pattern of disrespect to the court's authority. Appellant concludes this Court should vacate his judgment of sentence and remand for resentencing. Appellant challenges the discretionary aspects of his sentence. See Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing).
When reviewing the outcome of a revocation proceeding, this Court is limited to determining the validity of the proceeding, the legality of the judgment of sentence imposed, and the discretionary aspects of sentencing. Commonwealth v. Cartrette , 83 A.3d 1031, 1033-34 (Pa.Super. 2013) (en banc) (explaining appellate review of revocation sentence includes discretionary sentencing challenges). Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). 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. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). "The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Anderson , 830 A.2d 1013, 1018 (Pa.Super. 2003). 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 913. An appellant raises a substantial question where he claims his sentence was excessive in light of his underlying technical violations of probation. See Commonwealth v. Malovich , 903 A.2d 1247 (Pa.Super. 2006).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sheila Woods-Skipper, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of Appellant's question presented. ( See Trial Court Opinion, filed April 13, 2015, at 3-5) (finding: court sentenced Appellant to concurrent terms of two (2) to five (5) years' incarceration; sentence fell well below statutory maximum term of ten years' incarceration applicable to each criminal trespass conviction; in fashioning sentence, court considered sentencing factors under 42 Pa.C.S.A. § 9721(b); evidence at revocation hearing showed Appellant continuously failed to comply with rules of mental health treatment program; Appellant had sex with fellow resident and absconded from program twice over course of one year; Appellant also failed to comply with rules of mental health court despite being given several opportunities; Appellant may benefit from mental health services offered in more structured environment of state facility because he has failed to take advantage of opportunities previously afforded to him; in view of Appellant's rehabilitative needs and history of noncompliance with conditions of his supervision, sentence was not unreasonable; further, court complied with Section 9771(c); sentence of total confinement was necessary to vindicate court's authority because Appellant continued to disregard conditions of his supervision). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/18/2016
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