Opinion
J-S43011-15 No. 1805 EDA 2014
09-15-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. FLOYD WYNN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence of May 30, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000672-2012
BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ. MEMORANDUM BY OLSON, J.:
Appellant, Floyd Winn, appeals pro se from the judgment of sentence entered on May 30, 2014, following his revocation of probation. Upon review, we affirm.
On direct appeal, we summarized the facts of this case as follows:
Appellant and the victim were married and living together in New Mexico. In December 2011, the victim ended the relationship after Appellant took money from the victim's bank account to gamble. The victim's employer transferred her to Delaware County, Pennsylvania. Before leaving New Mexico, the victim obtained a Protection from Abuse (PFA) order prohibiting Appellant from any contact with her. Appellant continued calling and texting the victim, attempted to contact her on Facebook, confronted her while she was cleaning out her house in New Mexico and took her car keys. Police eventually intervened. In January 2012, the victim drove cross-country and checked into a hotel in Concordville, Pennsylvania. She received a message from Appellant asking her to send him money, because he was in Virginia with a flat tire. Believing Appellant was following
her, the victim directed hotel staff to deny that she was staying there. Subsequently, Appellant called the hotel, asked if the victim were staying there, came to the hotel despite being told no, and then waited for the victim near her car in the hotel parking lot. When Appellant confronted the victim, she ran back into the hotel and called the police. Police arrested Appellant on January 11, 2012.Commonwealth v. Wynn , 232 EDA 2013 (Pa. Super. 2013) (unpublished memorandum) at 1-2.
On October 24, 2012, the trial court held a bench trial wherein it convicted Appellant of [stalking and harassment. 18 Pa.C.S.A. §§ 2709.1 and 2709, respectively]. On December 19, 2012, the trial court sentenced Appellant to one to two years of incarceration, followed by three years of probation. [This Court affirmed Appellant's judgment of sentence on October 11, 2013.]
On January 13, 2014, Appellant completed the terms of his incarceration and was released on probation. Upon his release, Appellant was required to, inter alia: (1) report to the probation department; (2) give the probation department a valid address, and; (3) have no contact with the victim, either directly or indirectly. Appellant did not report to the probation department, as required, and purportedly reported a false address. The trial court entered a bench warrant for Appellant's arrest on January 23, 2014. On January 28, 2014, police arrested Appellant in Allegheny County and the Commonwealth charged him with resisting arrest. On February 20, 2014, the Commonwealth withdrew the resisting arrest charge and Appellant entered a guilty plea to disorderly conduct in Allegheny County. Appellant was extradited to Delaware County. On April 22, 2014, the trial court held a video hearing pursuant to Gagnon v. Scarpelli , 411 U.S. 778 (1973) ( Gagnon I hearing) to determine if there were probable cause to hold a revocation of probation hearing. The trial court determined that Appellant's guilty plea to disorderly conduct was prima facie evidence of a probation violation. On May 21, 2014, Appellant filed a writ of habeas corpus arguing that the trial court denied him due process and his detention was illegal because the court failed to hold a Gagnon I hearing. On May 28, 2014, the trial court held a second hearing regarding revocation of probation pursuant to Gagnon v. Scarpelli , 411 U.S. 778 (1973) ( Gagnon II hearing). Therein, the trial court heard Appellant's objections and rescheduled the Gagnon II hearing for May 30, 2014.
On May 30, 2014, the trial court reconvened a Gagnon II hearing wherein the Commonwealth presented evidence that Appellant absconded from supervision and sent e-mails to the victim directly and through third parties. The trial court found Appellant was in direct violation of the terms of his probation and sentenced him to one to three years of incarceration. This timely appeal resulted.
On appeal, Appellant presents, pro se, the following issues for our consideration:
A. Whether the Commonwealth and/or the Court of Common Pleas of Delaware County illegally [e]xtradite[d] Appellant in not abiding to [the] Uniform Extradition Act (42 Pa.C.S. §§ 9161-9165) as a matter of law?
B. Whether the Commonwealth and/or the Court of Common Pleas of Delaware County err[ed] by not applying Pa.R.C[rim].P. 708(A) as a matter of law?Appellant's Brief at 4-5.
C. Whether the Commonwealth and/or the Court of Common Pleas of Delaware County [denied Appellant his right to due process of law by failing to conduct a probable cause or Gagnon I hearing]?
D. Whether the Commonwealth and/or the Court of Common Pleas of Delaware County err[ed] by placing Appellant on special [s]tate supervised probation?
E. Whether the Commonwealth and/or the Court of Common Pleas of Delaware County had the right to violate Appellant's probation without acquainting [him] with terms and conditions of probation as a matter of law?
F. Whether the Commonwealth and/or the Court of Common Pleas of Delaware County satisfied minimal due process require[ments set] by the U.S. Supreme Court [] in Morrissey v. Brewer , 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 484 (1972) [with respect to Appellant's] revocation [or] " Gagnon II " [hearing]?
G. Whether the Commonwealth and/or the Court of Common Pleas of Delaware County err[ed] in failing to give [] Appellant proper timely notice and [a] prompt Gagnon II hearing as a matter of law?
H. Whether the Commonwealth and/or the Court of Common Pleas of Delaware County err[ed] by not stating on the record the reasons for [the] sentence imposed as a matter of law?
I. Whether the Court of Common Pleas of Delaware County abuse[d] [its] discretion in [imposing Appellant's revocation sentence]?
Initially, we note that Appellant's issues C, H and I are meritless. At issue C, in his appellate brief, Appellant claims that the trial court did not conduct a Gagnon I hearing. "When a parolee or probationer is detained pending a revocation hearing, due process requires a determination at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists to believe that a violation has been committed." Commonwealth v. Ferguson , 761 A.2d 613, 617 (Pa. Super. 2000) (citation omitted; emphasis in original). However, in his habeas petition, Appellant admits he attended a Gagnon I hearing by video conference on April 22, 2014. Moreover, he concedes the point in his appellate brief. Appellant's Brief at 15. Hence, Appellant has conceded the issue and there is nothing to review on appeal.
Regarding issues H and I, Appellant challenges the discretionary aspects of his revocation sentence. "[W]hen a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that new sentence either by objecting during the revocation sentencing or by filing a post-sentence motion." Commonwealth v. Kalichak , 943 A.2d 285, 289 (Pa. Super. 2008)(citation omitted). Here, Appellant did not object to his sentence at the revocation hearing or file a post-sentence motion thereafter. Hence, his discretionary aspect of sentencing claims are waived.
Our standard of review, with regard to Appellant's remaining contentions, is well-settled:
When we consider an appeal from a sentence imposed following the revocation of probation, our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. Revocation of a probation sentence is a matter committed to the sound discretion of the trial court, and that court's decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion.Commonwealth v. McNeal , 2015 PA Super 150, at *6 (internal citations, quotations and brackets omitted).
We reviewed the certified record, the parties' briefs, the relevant law, and the trial court's opinion filed on August 5, 2014. The trial court first noted that a probation officer read the terms of probation to Appellant before his release from prison and that he refused to sign an acknowledgment of this occurrence. Trial Court Opinion, 8/5/2014, at 4. Similarly, Appellant was advised orally of the alleged violations of his probation, but again he refused to sign an acknowledgment that he received notice. Id. at 5. The trial court determined that Appellant's due process rights were not violated and that the court properly complied with the procedures mandated by Gagnon. Id. More specifically, a video conference, or Gagnon I hearing, held on April 22, 2014 established that Appellant's conviction for disorderly conduct was prima facie evidence of a violation of probation. Id. On May 30, 2014, the trial court held a Gagnon II hearing wherein Appellant was permitted to cross-examine his probation officer and the victim. Id. at 6. Finally, the trial court noted that the original sentence of special probation, supervised by the Board of Probation and Parole, was proper under 61 Pa.C.S.A. § 6133. Id. at 7. Based upon all of the foregoing, we conclude there has been no error of law or abuse of discretion in this case and that the trial court's August 5, 2014 opinion meticulously, thoroughly, and accurately disposes of Appellant's issues on appeal. Therefore, we affirm on the basis of the trial court's opinion and adopt it as our own. Because we have adopted the trial court's opinion, we direct the parties to include the trial court's opinion in all future filings relating to our examination of the merits of this appeal, as expressed herein.
Appellant claims that the trial court initially imposed an illegal sentence of probation on the original stalking and harassment convictions. More specifically, Appellant argues that imposition of a three-year term of probation on harassment was illegal because the two charges merged for sentencing purposes. Appellant's Brief at 49. The trial court created the confusion by suggesting such in its opinion. See Trial Court Opinion, 8/5/2014, at 1 ("[This c]ourt sentenced [Appellant] to 12 to 24 months['] imprisonment in a state correctional facility on the [s]talking charge and 3 years['] consecutive special probation on the [h]arassment."). However, upon review of the certified record, and the original sentencing order, the trial court imposed the aforementioned probationary sentence on only the stalking offense, noting that harassment merged with the stalking charge.
Finally, on June 11, 2015, Appellant filed a petition to strike the Commonwealth's appellate brief as untimely filed. Upon review of the docket, after two permitted extensions, the Commonwealth filed its brief two days late. Although the Commonwealth did not strictly comply with the Rules of Appellate Procedure, we deny Appellant's request to strike the Commonwealth's brief, as our review was not substantially hindered by the error. See C.L. v. Z.M.F.H., 18 A.3d 1175, 1182 (Pa. Super. 2011).
Judgment of sentence affirmed. Appellant's petition to strike the Commonwealth's brief denied. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
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