Opinion
J-S03018-17 No. 616 WDA 2016
04-13-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. GREGORY T. SAVAGE, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence dated January 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014978-2010 BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J. MEMORANDUM BY SOLANO, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Gregory T. Savage, Jr., appeals from a sentence imposed by the Court of Common Pleas of Allegheny County after he violated his probation by possessing a controlled substance with an intent to distribute it — a crime for which he was convicted in Armstrong County. He contends that his revocation sentence of two to five years' imprisonment was excessive and unreasonable because the trial court (1) was biased against him, and (2) failed to consider factors mandated by the Sentencing Code. We affirm.
We state the facts as set forth by the trial court:
On May 16, 2011, Appellant . . . pled guilty to one count of Delivery of Cocaine, one count of Possession of a Controlled
Substance with Intent to Deliver ("PWID") and one count of Possession of a Controlled Substance, all after [a] prior conviction. This Court sentenced Appellant on the Delivery count to 15 to 30 months incarceration with 3 years of consecutive probation. On January 12, 2016, [t]his Court found Appellant to be a convicted violator of his conditions of probation and resentenced him to [a] period of incarceration of [2] to [5] years.Trial Ct. Op., 8/23/16, at 1. The trial court denied Appellant's post-sentence motion, and Appellant appealed. Id.
Appellant also was sentenced by the Armstrong County court to two to five years' incarceration for his PWID conviction there. As noted, it was that crime that resulted in the instant revocation sentence of two to five years' incarceration. Because the revocation sentence was made consecutive to the Armstrong County sentence, the trial court's opinion accurately noted that Appellant effectively received an "aggregate" sentence of four to ten years' imprisonment. See Trial Ct. Op., 8/23/16, at 2. See also Commonwealth's Brief at 4 n.2.
Appellant raises the following issue:
Was the two to five-year sentence of incarceration imposed manifestly excessive, unreasonable, and an abuse of discretion where the sentence was imposed out of personal frustration, bias, and ill-will towards [Appellant], rather than in contemplation of [Appellant's] rehabilitative needs and his nature and characteristics?Appellant's Brief at 4.
"[A] challenge to the discretionary aspects of a sentence is not appealable as of right." Commonwealth v. Colon , 102 A.3d 1033, 1042 (Pa. Super. 2014), appeal denied , 109 A.3d 678 (Pa. 2015). Before we exercise jurisdiction to reach the merits of Appellant's claim, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.Id. at 1042-43. Only if the appeal satisfies each of these four requirements may we proceed to decide the substantive merits of Appellant's claim. Id. at 1043. Our review of the record discloses that Appellant has met the first three of these requirements, and we therefore turn to whether he has raised a substantial question regarding his sentence.
"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 at 1263, 1268 (Pa. Super. 2013) (quotation marks and citation omitted). "[A] defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question." Id. at 1270. In the case at hand, we conclude Appellant has stated a substantial question, except to the extent he baldly challenges the consecutive nature of his sentence. See Colon , 102 A.3d at 1042-43; Dodge , 77 A.3d at 1270.
In Commonwealth v. Pasture , 107 A.3d 21 (Pa. 2014), our Supreme Court set forth the following regarding revocation sentences:
[C]ontrary 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. § 9721. See Commonwealth v. Reaves , 592 Pa. 134, 150, 923 A.2d 1119, 1129 (2007) (citing 204 Pa.Code. § 303.1(b) (Sentencing Guidelines do not apply to sentences imposed as result of revocation of probation)).
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. § 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. § 9771(c).
Moreover, 42 Pa.C.S. § 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(C)(2) (indicating
at the time of sentence following the revocation of probation, "the judge shall state on the record the reasons for the sentence imposed.").Pasture , 107 A.3d at 27-28 (brackets and footnote omitted).
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 . . . .
After a careful review of the record, the parties' briefs, and the trial court's decision, we affirm on the basis of the decision of the Honorable Jill E. Rangos. See Trial Ct. Op. at 5-6 (holding Appellant's subsequent conviction for PWID while on probation, his absconding from police, and his background as a drug dealer justified revocation sentence of incarceration). Accordingly, we affirm the judgment of sentence. The parties are instructed to include a copy of the trial court's August 23, 2016 opinion to any filing referencing this decision.
We do not adopt the trial court's statement that it imposed a sentence of four to ten years' incarceration. For the reasons noted in footnote 1 of this memorandum, that statement is imprecise and potentially confusing. The sentence imposed by the trial court was two to five years' incarceration. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/13/2017
Image materials not available for display.