J-S47015-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES L. SAUNDERS
Appellant No. 1504 EDA 2013
Appeal from the Judgment of Sentence April 18, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0903039-2006
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 29, 2014
Appellant, Charles L. Saunders, appeals from the April 18, 2013
judgment of sentence of three and one-
imposed following the revocation of his probation. After careful review, we
affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
On September 15, 2008, [A]ppellant entered a
plea of nolo contendre to indecent assault, simple
assault and criminal trespass before the Honorable
Karen Shreeves Johns and was sentenced to time
ordered to submit to random drug screens and a
stay away order was issued for the victim. On July
probation, but ordered that [A]ppellant could be
released to New Jerusalem Now drug treatment
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program when a bed became available. Appellant
was transported to New Jerusalem Now on October
30, 2009.
probation/parole was again revoked[;] however,
sentencing was deferred pending the results of a
mental health evaluation. Based upon the results of
transferred to Mental Health Court which is
administered and supervised by th[e trial c]ourt.
On July 1, 2010, [A]ppellant was sentenced to
program when a bed became available. On July 21,
2011 [A]ppellant was again found in violation and re-
long[-]term inpatient program when a bed became
available. On October 13, 2011, [A]ppellant was
paroled to an inpatient treatment program at Walnut
Manor House and the case was listed for status
[conference] on November 17, 2011. On that date,
[A]ppellant failed to appear in court as scheduled
and a bench warrant was issued[ for his arrest]. On
January 5, 2012, following a hearing, [A]ppellant
was found in violation of his parole and sentenced to
On August 1, 2012, [A]ppellant was released
to an inpatient treatment program at Gaudenzia New
Beginnings (Gaudenzia). On September 19, 2012,
behaviors had been escalating. On October 9, 2012,
Officer Ross received a report from Gaudenzia that
[A]ppellant had become verbally and physically
aggressive towards staff. Then[,] on October 16,
2012, Officer Ross received information from
Gaudenzia that [A]ppellant was attempting to
contact the victim of his sexual assault through the
mail, a violation of the stay[-]away order.
Therefore, Officer Ross took [A]ppellant into custody
and a violation hearing was scheduled. However,
before the hearing could take place, [A]ppellant was
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determined to be incompetent[] and remained
hospitalized until he was found to be competent on
April 11, 2013. On April 18, 2013, a violation
hearing was conducted where the aforementioned
evidence was presented. Appellant was found in
violation of his probation and sentenced to an
incarceration and removed from the supervision of
Mental Health Court.
Trial Court Opinion, 8/5/13, at 1-3 (internal citations omitted). A timely
motion to reconsider sentence was filed on April 29, 2013, which was left
unresolved by the trial court.1 This timely notice of appeal followed on May
17, 2013.2
On appeal, Appellant raises the following issue for our review.
1. Did [] the [trial] court fail to properly weigh
cant health
issues) versus the safety of the public, find
violations on the basis of evidence of question
probative value and imposes an excessive and
unreasonable sentence which was
disproportionate to those alleged violations,
and impose a sentence contrary to the norms
____________________________________________
1
A motion to modify or reconsider sentence following revocation of
probation must be filed within ten days of sentencing. See Pa.R.Crim.P.
a sentence imposed after a revocation
shall be filed within 10 days of the date of imposition he filing of a
motion to modify sentence will not toll the 30-day appeal period[
ich was a
timely. See 1 Pa.C.S.A. § 1908 (providing that when the last day of a
calculated period of time falls on a Saturday or Sunday, such day shall be
omitted from the computation).
2
Appellant and the trial court have timely complied with Pa.R.A.P 1925.
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of sentencing (including the requirements for a
sentence of total incarceration pursuant to 42
Pa.C.S.[A.] § 9771(c)), where the [trial] court
imprisonment] for technical violations?
ief at 4.
Our standard of review in assessing a sentence imposed following the
revocation of probation is well settled.
In considering 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
disc
will not be disturbed on appeal in the absence of an
error of law or an abuse of discretion.
Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. Super. 2010)
is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or misapplied
or the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence or the record,
Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.
Super. 2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa.
revocation proceedings is encompassed b
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Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en
banc).
whether this appeal is properly before us. Pennsylvania Rule of Appellate
each ruling or error that the appellant intends to challenge with sufficient
The Rule also
deemed to include every subsidiary issue contained therein which was raised
Id. at 1925(b)(4)(v). Finally, any issues not raised in
accordance with Rule 1925(b)(4) will be deemed waived. Id. at
1925(b)(4)(vii).
Our Supreme Court has held that Rule 1925(b) is a bright-line rule.
Our jurisprudence is clear and well-settled, and
firmly establishes that: Rule 1925(b) sets out a
simple bright-line rule, which obligates an appellant
to file and serve a Rule 1925(b) statement, when so
ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack
the authority to countenance deviations from the
ad hoc exceptions or selective enforcement;
appellants and their counsel are responsible for
violations may be raised by the appellate court sua
sponte, and the Rule applies notwithstanding an
1925 is not clear as to what is required of an
appellant, on-the-record actions taken by the
appellant aimed at compliance may satisfy the rule.
We yet again repeat the principle first stated in
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[Commonwealth v.] Lord, [719 A.2d 306 (Pa.
preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court
orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925.
Any issues not raised in a Pa.R.A.P. 1925(b)
Id.] at 309
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).
Of the four separate claims Appellant raises in the instant appeal, the
Commonwealth avers two are waived. First, the Commonwealth argues that
Appellant waived his claim, that the trial court failed to consider his
rehabilitative needs because he did not include it within his Rule 1925(b)
o the trial
Commonwealth v. Johnson, 51 A.3d
237, 246 (Pa. Super. 2012) (citation omitted), appeal denied, 63 A.3d 1245
is also waived for failure to include it in his Rule 1925(b) statement.
see also Hill, supra
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raised in the Appell
Therefore, we deem this claim waived as well.
The remaining two issues raised by Appellant are that his sentence
was disproportionate to the technical nature of his violations and that the
trial court imposed a sentence of total incarceration without complying with
-14. We note that Appellant
arguments pertain to the discretionary aspects of his sentence.
Commonwealth v.
Edwards, 71 A.3d 323, 329 (Pa. Super. 2013) (citation omitted), appeal
denied, 81 A.3d 75 (Pa
a sentence must be considered a petition for permission to appeal, as the
Commonwealth v. Ahmad,
961 A.2d 884, 886 (Pa. Super. 2008).
[Therefore, b]efore we reach the merits of this
[issue], we must engage in a four part analysis to
determine: (1) whether the appeal is timely; (2)
whether Appellant preserved his issue; (3) whether
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. The third and fourth of
these requirements arise
on his sentence is not an appeal as of right. Rather,
he must petition this Court, in his concise statement
of reasons, to grant consideration of his appeal on
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the grounds that there is a substantial question.
Finally, if the appeal satisfies each of these four
requirements, we will then proceed to decide the
substantive merits of the case.
Edwards, supra at 329-330 (citations omitted).
Herein, Appellant first argues that the sentence was disproportionate
to the technical natur -14. Second,
Appellant argues that trial court imposed a sentence of total incarceration
without complying with Section 9771(c). Id. at 12-
are in compliance with the technical requirements to challenge the
discretionary aspects of a sentence. See Edwards, supra at 330.
Appellant has filed a timely notice of appeal, raised these claims in a timely
motion for reconsideration of sentence, and has included a separate Rule
2119(f) statement. See Therefore, we turn to the
substantial question analysis on these claims.
evaluated on a case-by- See Edwards, supra (citations
A substantial question exists only when the appellant advances a
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie Id.
(citations omitted).
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at 15. This Court has held that that a claim of
excessiveness of sentence does not raise a substantial question so as to
Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999), appeal
denied, 747 A.2d 366 (Pa. 1999). However, a claim that a particular
probation revocation sentence is excessive in light of its underlying technical
Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007) (citations
omitted).
a substantial question. Commonwealth v. Malovich, 903 A.2d 1247, 1253
(Pa. Super. 2006). Accordingly, Appellant has raised two substantial
questions for our review.
stated specific reasons for
being transferred to Mental Health Court, his
probation was revoked for technical violations on
July 21, 2009[,] and February 3, 2010 by Judge
Shreeves Johns. He was found in technical violation
of his parole or probation for noncompliance with his
court[-]ordered treatment programs on three
occasions: on July 21, 2011, probation was revoked
and [A]ppellant was re-sentenced to 6-23 months
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parole was revoked and [A]ppellant was sentenced
probation; and, the instant probation revocation,
April 18, 2013, where the [trial c]ourt found that
[A]ppellant had again violated the terms of his
probation. Probation is a rehabilitative device to be
used to assist the offender in his adjustment to life
within society. Over the course of the case,
[A]ppellant was placed in four different rehabilitation
programs without success. Based on the number of
rehabilitation programs [A]ppellant had failed to
successfully complete, the [trial c]ourt determined
that probation was not an effective tool for
probation was
incapable of deterring [A]ppellant from future
antisocial behavior, and that a state sentence of
incarceration was warranted.
Trial Court Opinion, 8/5/13, at 3-4 (internal citations omitted).
Clearly, the trial court had articulable reasons for imposing a sentence
of state incarceration. See id.
technical in nature, it does not follow that they are de minimis. Rather, the
trial court reasoned these violations were flagrant and indicative of the
Ap See
Carver, supra
revocation and a sentence of incarceration when such violations are flagrant
Moreover, the trial court stated on
placements that [Appellant has] left or have been provided for [Appellant
,
4/18/13, at 16. Based on these considerations, we conclude the trial court
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did not abuse its discretion in imposing a three and one-
state incarceration. See Williams, supra
argument also fails.
Lastly, Appellant asserts the trial court failed to comply with Section
-21. Section 9771(c) provides that the trial
court may impose a sentence of total confinement upon revocation of a
sentence of probation if one of the three enumerated circumstances applies.
The statute provides, in relevant part, as follows.
§ 9771. Modification or revocation of order of
probation.
(c) Limitation on sentence of total confinement.
-- The court shall not impose a sentence of total
confinement upon revocation 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.A § 9771(c).
total confinement after a probation revocation, the sentencing court is to
Commonwealth v.
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Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citations omitted), appeal
denied, 608 Pa. 661 (Pa. 2010).
[Appe
complete his treatment program. N.T., 4/18/13, at 16; see also Trial Court
incapable of deterring [Appellant]
4/18/13, at 18. Accordingly, the trial court had the discretion to impose
incarceration to vindicate its authority. See Trial Court Opinion, 8/5/13, at
3-
where [A]ppellant had not complied with previous judicial efforts such as
citing Malovich, supra at
1254. Therefore, we conclude that the trial court complied with Section
9771(c)(3) when it sentenced Appellant to total confinement following the
revocation of his probation, and as such, did not abuse its discretion. See
Williams, supra
ents are
2013 judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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