J-S61020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID LEONARD CROMWELL
Appellant No. 272 WDA 2014
Appeal from the Judgment of Sentence of January 14, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0001256-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED OCTOBER 17, 2014
David Leonard Cromwell appeals from the judgment of sentence
entered on January 14, 2014, which was imposed by the trial court following
revocation of his probation for both technical and direct violations. We
affirm.
The trial court set forth the following summary of the case in its
opinion of June 2, 2014:
[Cromwell] was charged with Robbery—Serious Bodily Injury,1
Terroristic Threats,2 Simple Assault3 and Public Drunkenness4 in
relation to a theft which occurred on December 30, 2011 outside
the Comet News shop in Braddock. On May 23, 2012,
[Cromwell] appeared before [the c]ourt and, pursuant to a plea
agreement, pled guilty to a reduced charge of Robbery—Threat
of Bodily Injury5 and the remaining charges were withdrawn. On
August 28, 2012, [Cromwell] was sentenced to a term of
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*
Retired Senior Judge assigned to the Superior Court.
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imprisonment of 11½ to 23 months plus an additional term of
probation of three (3) years. No Post-Sentence Motions were
filed and no direct appeal was taken.
1
18 Pa.C.S.A. § 3701(a)(1)(i)[.]
2
18 Pa.C.S.A. § 2706(a)(1)[.]
3
18 Pa.C.S.A. § 2701(a)(3)[.]
4
18 Pa.C.S.A. § 5505[.]
5
18 Pa.C.S.A. § 3701(a)(1)(iv)[.]
On January 14, 2014, [Cromwell] appeared before [the c]ourt
for a probation violation hearing as the result of a new conviction
of Theft of Services at CC 201312807 as well as technical
violations including . . . failing to report to behavior classes and
assessments, testing positive on three (3) occasions for cocaine
and marijuana and being confrontational with his supervising
officer. At that hearing, [the c]ourt revoked [Cromwell’s]
probation and imposed a term of imprisonment of two (2) to five
(5) years. A timely Motion to Reconsider Sentence was filed and
denied on January 31, 2014.
Trial Court Opinion (“T.C.O.”), 6/2/2014, at 1-2.
Cromwell timely appealed on February 13, 2014. See Pa.R.Crim.P.
708(E). On April 14, 2014, the trial court ordered Cromwell to file a concise
statement of errors complained of on appeal, and he complied the next day.
See Pa.R.A.P. 1925(b). The court entered its opinion pursuant to Pa.R.A.P.
1925(a) on June 2, 2014.
Cromwell raises one question for our review: “Did the trial court
abuse its discretion in sentencing Mr. Cromwell to two to five years’ of [sic]
incarceration without considering his rehabilitative needs, as required by 42
Pa.C.S.A. § 9721, and by imposing a sentence that is disproportionate to the
nature of his violations?” Cromwell’s Brief at 5.
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Cromwell’s challenge to the discretionary aspects of his revocation
sentence is within this Court’s scope of review. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013). “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. Ahmad,
961 A.2d 884, 888 (Pa. Super. 2008) (citation omitted). In addition, our
standard of review is well-settled:
[T]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence. 42 Pa.C.S. § 9781(b).
Rather, an [a]ppeal is permitted only after this Court determines
that there is a substantial question that the sentence was not
appropriate under the sentencing code. In determining whether
a substantial question exists, this Court does not examine the
merits of the sentencing claim.
In addition, issues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived. Furthermore, a defendant is
required to preserve the issue in a court-ordered Pa.R.A.P.
1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.
Id. at 1042 (case citations and quotation marks omitted).
Cromwell has raised a challenge to the discretionary aspects of his
sentence in his Rule 1925(b) statement, and his brief contains a statement
of reasons for allowance of appeal from the discretionary aspects of his
sentence pursuant to Rule 2119(f). See Cromwell’s Brief at 13-17; see
also Cartrette, 83 A.3d at 1042. The Commonwealth contends that
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Cromwell has waived one of his challenges because he did not preserve the
issue in his post-sentence motion; to wit, that the trial court failed to
consider his rehabilitative needs.1 See Commonwealth’s Brief at 9-10. We
disagree.
Upon review of Cromwell’s sentencing hearing, we conclude that he
raised the issue of the trial court’s purported failure to consider his
rehabilitative needs before the trial court. Counsel for Cromwell discussed
his bipolar disorder and traumatic brain injury, which have been exacerbated
by Cromwell’s drug use. Notes of Testimony (“N.T.”) Sentencing Hearing,
1/14/2014, at 5-6. Given the opportunity to speak, Cromwell himself
stated, “I feel that I need more of rehabilitation than incarceration.” Id. at
8. Therefore, he “present[ed] the claim to the trial court during the
sentencing proceedings.” Ahmad, 961 A.2d at 888.
Thus, we may proceed to determine whether Cromwell has raised a
substantial question that the sentence was not appropriate under the
sentencing code, which then would permit us to examine the merits of his
sentencing claims. See id.
From an appellant’s Rule 2119(f) statement, the Superior Court
decides whether to review the discretionary aspects of a
sentence based upon a case-by-case determination as to
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1
Cromwell’s other claim, that his sentence was disproportionately
harsh, was presented to the trial court in his post-sentence motion. See
Petition to Reconsider Sentence, 1/14/2014, at 2 ¶ 6. The Commonwealth
does not challenge the preservation of this issue.
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whether a substantial question concerning the sentence exists.
To demonstrate that a substantial question exists, a party must
articulate reasons why a particular sentence raises doubts that
the trial court did not properly consider [the] general guidelines
provided by the legislature.
Commonwealth v. Mouzon, 812 A.2d 617, 621-22 (Pa. 2002) (citations
omitted).
Here, Cromwell argues that his revocation sentence of not less than
two nor more than five years’ incarceration raises a substantial question
because:
[t]he [c]ourt did not consider Mr. Cromwell’s rehabilitative needs
and imposed a disproportionally harsh sentence in light of the
nature of his probation violations. While the trial court
acknowledged Mr. Cromwell was suffering from severe brain
trauma and had an ongoing substance abuse issues [sic], it did
not consider any avenues to address Mr. Cromwell’s need for
treatment and rehabilitation.
Cromwell’s Brief at 16. Cromwell has failed to articulate a substantial
question that the sentence is inappropriate under the Sentencing Code.
A claim that the sentence fails to consider an appellant’s rehabilitative
needs and that the sentence was manifestly excessive fails to raise a
substantial question. Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.
Super. 2013) (citing Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa.
Super. 1990)); see also Commonwealth v. Coss, 695 A.2d 831, 833 (Pa.
Super. 1997) (holding that, when the sentence imposed falls within the
statutory limits, an appellant’s claim that a sentence is manifestly excessive
fails to raise a substantial question); Commonwealth v. Bershad, 693
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A.2d 1303, 1309 (Pa. Super. 1997) (holding that a claim that a trial court
failed to appropriately consider an appellant’s rehabilitative needs does not
present a substantial question).
Moreover, even if Cromwell had raised a substantial question, we
nonetheless would affirm the judgment of sentence. Pursuant to our
sentencing code:
The court may revoke an order of probation upon proof of the
violation of specified conditions of the probation. Upon
revocation 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.A. § 9771(b).
Here, Cromwell concedes that he committed a substantive violation of
his probation when he was convicted for theft of services, and that he
incurred technical violations for, inter alia, failure to comply with reporting
requirements. Cromwell’s Brief at 21. We observe that the resulting
sentence of not less than two nor more than five years falls squarely within
the aggravated range of the guidelines set forth at the time of Cromwell’s
underlying sentencing. See Guideline Sentence Form, 8/28/2012, at 1.2
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2
It is well-settled that “Sentencing Guidelines do not apply to sentences
imposed following a revocation of probation.” Commonwealth v.
Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). We acknowledge the
guideline sentence from the underlying case only to the extent that it
demonstrates that Jones’ sentence for revocation was available at the time
of his initial sentencing. See 42 Pa.C.S.A. § 9771(b).
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Therefore, the trial court was permitted to revoke his probation and impose
a sentence available at the time of his initial sentencing. See 42 Pa.C.S.A.
§ 9771(b).
Furthermore, at the sentencing hearing, the court availed itself of a
presentence report and stated its reasons for sentencing Cromwell on the
record. See Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
2005) (holding that, if sentencing court has the benefit of pre-sentence
investigation, it is presumed that the court was aware of relevant
information regarding a defendant’s character and weighed those
considerations along with any mitigating factors); Commonwealth v.
Stewart, 867 A.2d 589, 593 (Pa. Super. 2005) (“[A] trial court judge has
wide discretion in sentencing and can, on the appropriate record and for the
appropriate reasons, consider any legal factor in imposing a sentence in the
aggravated range.”).
Specifically, the trial court stated:
The Court: Well, Mr. Cromwell, when you first came to
me, you had a prior record score of four. The [c]ourt is
satisfied that you are suffering from traumatic brain injury,
which means that the last thing in the world you need to
do is to take drugs . . . and continue to commit crime.
[Cromwell]: Yes, ma’am.
The Court: You have been positive for drugs even when
you were at the Day Reporting Center. You refused to go
for a drug and alcohol evaluation. You have not reported
on a regular basis. We had no way of contacting you. You
were in jail once before, and that didn’t deter you from
criminal activity.
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[Cromwell]: And I—excuse me. I have been seeking help
while I was down the ACJ. I’m a graduate of the Hope
Program, and I attend N.A. and A.A. meetings weekly. So
I have been doing something—
[Counsel for Cromwell]: [The court is] referring to the fact
that you were sent to Pyramid and didn’t go.
The Court: Right, not in the jail—you’re doing okay when
you’re in jail. It’s when you’re out that your behavior is
not acceptable.
[Cromwell]: Yes, ma’am.
The Court: It seems to me that your behavior is not
amenable for county supervision, and I am going to revoke
and order you to serve two to five years, with credit from
September 8th of 2013.
The record will reflect that the [c]ourt ordered, read and
considered a presentence report as well as a rather
exhaustive report from the probation office.
N.T. at 8-10. We agree with the trial court that the sentence that it imposed
was within the available sentencing ranges and was not in violation of our
general sentencing standards “either due to its length or the reasons
contained in the record for its imposition.” T.C.O. at 4; see also 42
Pa.C.S.A. § 9721. Accordingly, we are satisfied that the trial court did not
abuse its discretion in revoking and sentencing Cromwell. Ahmad, 961 A.2d
at 888. Cromwell’s challenges to the discretionary aspects of his sentence
would not merit relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2014
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Com. v. Cromwell, D.
Combined Opinion