Opinion
J. S64039/15 No. 204 MDA 2015
11-09-2015
COMMONWEALTH OF PENNSYLVANIA v. SETH ALAN REEDER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 31, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division No(s).: CP-41-CR-0001376-2012 CP-41-CR-0001377-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Seth Alan Reeder, appeals from the judgment of sentence entered in the Lycoming County Court of Common Pleas following the trial court's revocation of his intermediate punishment program ("IPP") sentence. He challenges the discretionary aspects of his sentence. We affirm.
We adopt the facts and procedural history of this case as set forth by the trial court's opinion. See Trial Ct. Op., 5/18/15, at 1-4. Appellant filed a timely notice of appeal. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion. Appellant raises the following issue on appeal: "Whether the trial court abused its discretion in imposing a sentence of one and one-half (1½) years to five (5) years as a result of an [sic] County [IPP] Violation?" Appellant's Brief at 6.
"An appellant whose revocation of probation sentence has been imposed after a revocation proceeding has 30 days to appeal [the] sentence from the day [the] sentence is entered, regardless of whether or not [he or] she files a post-sentence motion." Commonwealth v. Parlante , 823 A.2d 927, 929 (Pa. Super. 2003) (citing, inter alia, Pa.R.Crim.P. 708D)). In the case sub judice, Appellant was re-sentenced on December 21, 2014. He filed his notice of appeal on January 29, 2015.
We note that the trial court entered an order on February 5, 2015, directing Appellant to file and serve his Pa.R.A.P. 1925(b) statement "within twenty-one (21) days of the date hereof." Order, 2/5/15. Appellant filed his Rule 1925(b) statement on March 13, 2015. We need not find the late filing results in waiver. In Commonwealth v. Veon , 109 A.3d 754 (Pa. Super.), appeal granted on other grounds, 121 A.3d 954, 955 (Pa. Aug. 20, 2015), this Court addressed the issue of an untimely Rule 1925(b) statement.
First, the trial court maintains that [the defendant] has waived all of his issues on appeal by failing to file a timely statement of matters complained of on appeal pursuant to Rule 1925(b) of our Rules of Appellate Procedure. Waiver is no longer the remedy under such situations. Where the trial court does not address the issues raised in an untimely 1925(b) statement, we remand to allow the trial court an opportunity to do so. On the other hand, where, as here, the trial court has addressed the issues raised in an untimely Rule 1925(b) statement, we need not remand and may address the issues on their merits.Id. at 762 (citations omitted and emphasis added).
The Commonwealth did not file a brief in the instant case.
We note that the principles which apply to revocation of probation apply to revocation of an IPP sentence. In Commonwealth v. Philipp , 709 A.2d 920 (Pa. Super. 1998), this Court opined:
[A] Sentence of Intermediate Punishment[ ] may be revoked where the specific conditions of the sentence have been violated. "Upon revocation, the sentencing alternatives available to the court shall be the same as the alternatives available at the time of initial sentencing." 42 Pa.C.S. § 9773, Modification or revocation of intermediate punishment sentence, (b) Revocation. This rule of re-sentencing is analogous to that set forth for re-sentencing following revocation of probation.Id. at 921 (emphases omitted).
Appellant argues "that the trial court abused its discretion in imposing sentence because of the nature of Appellant's violations, the lack of a new criminal conviction, the availability of less restrictive sanctions, and because the sentence is excessive to vindicate the authority of the court." Appellant's Brief at 12. Appellant avers that his supervision violations of the IPP, viz., "his absconding status and his use of marijuana" and "the nature of his original crime" should not have resulted in a sentence of total confinement under 42 Pa.C.S. § 9771(c). Id. at 12-13.
Appellant challenges the discretionary aspect of his sentence. This Court has stated,
discretionary aspects of . . . sentence . . . are not appealable as of right. Rather, an appellant challenging the sentencing court's discretion 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 appellant's brief has a fatal defect,
Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015) (some citations omitted).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).
Instantly, Appellant timely appealed, preserved his issue in his post sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief. Accordingly, we ascertain whether Appellant has raised a substantial question. See id.
"A defendant presents a substantial question when he sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process." Commonwealth v. Dodge , 77 A.3d 1263, 1268 (Pa. Super. 2013) (quotation marks and citation omitted), appeal denied, 91 A.3d 161 (Pa. 2014). "[I]f a defendant believes the record is devoid of evidence supporting total confinement under § 9771(c), he must preserve that argument as a challenge to the discretionary aspects of the sentence." Commonwealth v. Schutzues , 54 A.3d 86, 98 (Pa. Super. 2012). "An argument that the trial court imposed an excessive sentence to technical probation violations raises a substantial question." Id. (citing Commonwealth v. Crump , 995 A.2d 1280, 1282 (Pa. Super. 2010).
Appellant sufficiently alleges his sentence is disproportionate to the technical nature of his IPP violations and conflicts with Section 9771(c). We therefore find Appellant has raised a substantial question. See Dodge , 77 A.3d at 1268; Schutzues , 54 A.3d at 98.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance to the trial court's sentencing determination:
Commonwealth v. Bricker , 41 A.3d 872, 875 (Pa. Super. 2012) (some citations omitted). "[W]hen a defendant is found in violation of his probation, upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing . . . ." Schutzues , 54 A.3d at 98-99.[T]he 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.
Under 42 Pa.C.S. § 9771(c), a court may sentence a defendant to total confinement subsequent to revocation of probation if any of the following conditions exist:
1. the defendant has been convicted of another crime; or
Crump , 995 A.2d at 1282-83. This court has declined to find an abuse of discretion when "continued drug use, combined with [the defendant's] resistance to treatment and supervision, [was] enough to make a determination that, unless incarcerated, appellant would in all likelihood commit another crime." Commonwealth v. Cappellini , 690 A.2d 1220, 1225 (Pa. Super. 1997).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 this court.
After careful consideration of the record, Appellant's brief, and the well-reasoned decision of the Honorable Marc F. Lovecchio, we affirm on the basis of the trial court's opinion. See Trial Ct. Op. at 5-7 (holding (1) Appellant is likely to commit another crime if not confined; and (2) due to substance abuse, personality disorders, and refusal to report to supervising officer "alternatives to incarceration cannot work.") Accordingly, having discerned no abuse of discretion, we affirm the judgment of sentence. See Bricker , 41 A.3d at 875.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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