J-S18028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN SIMMONS,
Appellant No. 1740 EDA 2014
Appeal from the Judgment of Sentence entered May 8, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0008336-2009
BEFORE: BENDER, P.J.E., ALLEN and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED MARCH 23, 2015
Sean Simmons (“Appellant”) appeals from the judgment of sentence
imposed following the trial court’s revocation of his probation. We affirm.
The trial court summarized the pertinent factual and procedural history
as follows:
On September 25, 2009, Appellant was sentenced to 3
years probation by the Honorable Roger Gordon after
pleading guilty to criminal trespass (18 Pa.C.S.A. §
3503(A)(1)(ii)) as a second degree felony. Appellant’s
probation was to be supervised by the mental health unit
of the probation department. On October 18, 2010,
[A]ppellant was arrested and charged with aggravated
assault (18 Pa.C.S.A. § 2702), as a felony of the first
degree, [a] potential direct violation of Judge Gordon’s
probation. A violation hearing was scheduled before Judge
Gordon but had to be continued several times pending
resolution of [A]ppellant’s open bills. On December 14,
2011, Judge Gordon ordered a pre-sentence investigation
report, in the event it would be needed for sentencing, and
continued the hearing for a status of [A]ppellant’s mental
health. Thereafter, Judge Gordon relinquished jurisdiction,
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the matter was transferred and [A]ppellant was formally
accepted into Mental Health Court (MHC). Both the
potential direct violation of Judge Gordon’s probation and
the new conviction were consolidated before [the
Honorable Judge Sheila Woods Skipper]. On May 3, 2012,
[A]ppellant pleaded nolo contendere to the aggravated
assault and was sentenced to 11½ - 23 months
confinement followed by 15 years probation (CP-51-CR-
0015449-2010). He was also sentenced to 11½ - 23
months confinement followed by 5 years probation, to run
concurrently, for the direct violation of Judge Gordon’s
probation (CP-51-CR-0008336-2009). Appellant was to be
paroled to a treatment facility upon bed availability and
ordered to comply with treatment and all the conditions of
his sentence.
As is the procedure in MHC, [A]ppellant was scheduled
for status of mental health and treatment hearings at
regular intervals to monitor his compliance and progress.
At [A]ppellant’s July 19, 2012 status hearing, [A]ppellant’s
probation officer reported that [A]ppellant was paroled to
Eagleville Hospital on July 12, 2012, and was in
compliance with his treatment program. Appellant was
reported in compliance at the August 9, 2012 hearing.
However, on August 28, 2012, [A]ppellant’s probation
officer issued wanted cards after receiving a report that
[A]ppellant absconded from the treatment program on
August 20, 2012, and did not contact his probation officer.
At the September 27, 2012 hearing the bench warrant was
lifted, and [A]ppellant was scheduled for a FIR evaluation
the following day, which he did attend. Appellant was
reported to be in compliance again at the October 18,
2012 status hearing. But on November 26, 2012, a
probation violation warrant was again issued after
[A]ppellant failed to report to probation as scheduled. At
the December 6, 2012 status hearing, [A]ppellant was
taken into custody from the courtroom and a violation
hearing was scheduled. ... [A] violation hearing was
scheduled for January 24, 2013 [following which,] despite
[A]ppellant’s technical violations, [A]ppellant's
probation/parole was continued and he was directed to re-
enroll in treatment and report to his probation officer as
scheduled. Appellant was reported to be in compliance
with the conditions of his probation at the January 31,
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2013, March 14, 2013, May 16, 2013, June 20, 2013 and
August 15, 2013 [status conference] listings.
On September 27, 2013, [A]ppellant’s probation officer
issued a probation warrant after it was determined that
[A]ppellant was apprehended on September 30, 2013. At
the October 17, 2013 status hearing, [A]ppellant’s
probation officer reported that [A]ppellant had tested
positive for drugs. Appellant remained in custody until the
November 14, 2013 violation hearing. Following the
hearing, [A]ppellant was found in violation of his
probation/parole due to the technical violations and, in lieu
of a new sentence, the [trial court] considered
[A]ppellant’s time spent in custody as his sanction. At the
December 12, 2013 listing, [A]ppellant was once again
reported to be in compliance with the conditions of his
treatment, however he failed to appear for the hearing, ...
and a bench warrant nunc pro tunc was issued. Appellant
did appear for the February 28, 2014 listing. His probation
officer reported that he was once again not in compliance
with his treatment program and a violation hearing was
scheduled for May 8, 2014. At the hearing, [A]ppellant’s
probation officer testified that [A]ppellant was not
reporting as scheduled to the probation department and
she received information that [A]ppellant had not been to
his treatment program since March 11, 2014. When she
spoke with [A]ppellant, he falsely assured her that he was
back in the program. However, when she contacted
Wedge Franklin she learned that [A]ppellant was not
attending and had been discharged from the program on
April 11, 2014. Appellant also tested positive for
marijuana.
Trial Court Opinion, 8/21/14, at 1-4 (footnotes omitted).
At the conclusion of the May 8, 2014 hearing, the trial court found
Appellant in technical violation of his probation and re-sentenced him to
three (3) – six (6) years of incarceration. Appellant filed a motion for
reconsideration on May 16, 2014, which the trial court denied on June 3,
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2014. This appeal followed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Did not the [trial court] abuse its discretion and impose a
sentence that was manifestly excessive where it failed to order,
consider, or state its reasons for dispensing with a pre-sentence
investigation report in violation of the Rules of Criminal
Procedure, Rule 702(A)(2), and where it sentenced [A]ppellant
to total confinement absent his having been convicted of a new
crime, absent any indication that he was likely to commit a new
crime, and absent a need to vindicate the authority of the court,
in violation of the requirements of 42 Pa.C.S.A. § 9771(c)?
Appellant’s Brief at 3.
Appellant asserts that at the sentencing hearing, the trial court failed
to order a pre-sentence investigation report, and failed to provide reasons
on the record for its decision not to order the report, thereby abusing its
sentencing discretion. Appellant’s Brief at 11-15.
Appellant’s challenge to the discretionary aspects of his sentence is not
appealable as of right. Rather, Appellant must petition for allowance of
appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856
A.2d 1254, 1257 (Pa. Super. 2004).
Before 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
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. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
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this Court, in his concise statement of reasons, to grant
consideration of his appeal on 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.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.
Super. 2008) (“[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”).
Here, Appellant preserved his claim in his motion for reconsideration,
and filed a timely notice of appeal. Appellant has additionally included in his
brief a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s
Brief at 6-8. Moreover, Appellant’s claim that the trial court failed to order a
pre-sentence investigation report, or provide reasons for its failure to do so,
raises a substantial question for our review. See Commonwealth v.
Flowers, 950 A.2d 330, 332 (Pa. Super. 2008).
In Commonwealth v. Pasture --- A.3d ----, 2014 WL 7392242 (Pa.
2014), our Supreme Court recently reiterated the “broad discretion and
deferential standard of appellate review” we afford to a trial court when
presented with a challenge to the discretionary aspects of a sentence. The
High Court in Pasture emphasized that “the sentencing court sentences
flesh-and-blood defendants and the nuances of sentencing decisions are
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difficult to gauge from the cold transcript used upon appellate review.
Moreover, the sentencing court enjoys an institutional advantage to
appellate review, bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed.” Pasture at 5 (citations
omitted). With particular regard to probation revocation proceedings, the
Supreme Court explained:
The sentencing court's institutional advantage is, perhaps,
more pronounced in fashioning a sentence following the
revocation of probation, which is qualitatively different than an
initial sentencing proceeding. At initial sentencing, all of the
rules and procedures designed to inform the court and to cabin
its discretionary sentencing authority properly are involved and
play a crucial role. However, it is a different matter when a
defendant reappears before the court for sentencing proceedings
following a violation of the mercy bestowed upon him in the form
of a probationary sentence. For example, in such a case,
contrary 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.
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
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(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,
“[t]he judge shall state on the record the reasons for the
sentence imposed.”).
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, particularly where, as here, the trial judge had the
benefit of a [pre-sentence investigation report] during the initial
sentencing proceedings. ... [T]here is no absolute requirement
that a trial judge, who has already given the defendant one
sentencing break after having the benefit of a full record,
including a [pre-sentence investigation report], must order
another [pre-sentence investigation report] before fashioning the
appropriate revocation sentence.
***
In point of fact, where the revocation sentence was adequately
considered and sufficiently explained on the record by the
revocation judge, in light of the judge's experience with the
defendant and awareness of the circumstances of the probation
violation, under the appropriate deferential standard of review,
the sentence, if within the statutory bounds, is peculiarly within
the judge's discretion.
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Pasture at 6 (citations omitted).
Here, our review of the record confirms that the trial court was very
familiar with Appellant, having presided over numerous proceedings in this
matter. The record reflects that on May 3, 2012, the trial court conducted a
probation revocation hearing, at which Appellant was found in violation of his
probation and re-sentenced. Thereafter, the trial court repeatedly reviewed
Appellant’s progress at numerous treatment “status of mental health”
conferences, at which the trial court reviewed Appellant’s compliance with
his treatment program. See e.g., Trial Court Orders, 7/19/12; 10/18/12;
12/06/12; 1/24/13 (finding Appellant competent and ordering him to report
to probation and re-enroll in treatment); 1/31/13 (finding Appellant in
compliance with his program); 3/14/13; 5/16/13 (finding Appellant in
compliance with his program). Thus, the trial court in the years preceding
the revocation proceeding at issue in this appeal, regularly reviewed
Appellant’s progress, and was quite familiar with Appellant and the facts and
circumstances of his case.
Moreover, at the revocation hearing on May 8, 2014, the trial court
heard a detailed account of Appellant’s progress from Appellant’s probation
officer, Keisha Adams. N.T., 5/8/14, at 3. Ms. Adams recounted Appellant’s
irregular reporting history, his family circumstances, his lack of compliance
with his treatment program, his submission of false urine samples, Ms.
Adams’ efforts to communicate with Appellant about his lack of compliance,
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and Appellant’s failure to respond to Ms. Adams’ requests. Id. at 3-5. The
trial court additionally heard from Appellant, who stated that he was “back in
treatment.” Id. at 6.
As the trial court explained:
Appellant’s sentence of 3-6 years is well below the maximum. …
[A]ppellant’s behavior demonstrated to the Court that he had
not benefitted from probation and the services provided during
his probation, and was likely to re-offend. After numerous
technical violations and failures to comply with the conditions of
his sentence and MHC, it was obvious that [A]ppellant had no
intention of conforming his behavior. Moreover, [A]ppellant’s
sentence was necessary to vindicate the authority of the Court
since [A]ppellant failed to comply with the conditions of his
sentence despite the Court giving him several informal sanctions
before violating him a second time.
***
The record demonstrates that, having supervised [A]ppellant
since May 2012, as a participant in Mental Health Court, the
[trial court] was in possession of several reports and evaluations
from psychiatrists, [A]ppellant’s social workers and case
managers, treatment facility staff, and probation officers, and
possessed more than sufficient information to enable it to make
a determination of the circumstances of [A]ppellant’s offense
and [A]ppellant’s character, and give individualized consideration
to [A]ppellant’s needs at sentencing. Prior to sentencing
[A]ppellant, the [trial court] noted that while [A]ppellant did
have some periods of compliance, there were also several
instances where he had failed to report to his probation officer,
had been sanctioned for non-compliance and had submitted
positive drug screens. In addition, the [trial court] noted that
this was [A]ppellant’s second violation hearing before the [trial
court]. Therefore, the [trial court] had sufficient information to
substitute for the [pre-sentence investigation report] when
fashioning an individualized sentence for [A]ppellant and this
claim fails.
Trial Court Opinion, 8/21/14 at 6-8 (citation to notes of testimony omitted).
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We agree with the trial court that in the absence of a pre-sentence
investigation report, the trial court was sufficiently informed of the relevant
facts and circumstances to enable it to “fashion the appropriate revocation
sentence.” Pasture, supra. Appellant’s claim to the contrary lacks merit.
To the extent Appellant argues that the trial court sentenced him to
total confinement based on his technical violations, and without considering
the applicable statutory factors set forth in 42 Pa.C.S.A. § 9771(c), this
claim also lacks merit.1 “Technical violations can support revocation and a
sentence of incarceration when such violations are flagrant and indicate an
inability to reform.” Carver, 923 A.2d at 498. As the trial court correctly
concluded, numerous attempts to rehabilitate Appellant had not only failed,
but led to a continuation of noncompliant behavior, with Appellant incurring
“escalating … infractions”, indicating that he “had not taken his supervision
seriously, and that [A]ppellant had the ability to make good decisions but
chose to do otherwise[.]” Trial Court Opinion, 8/21/14, at 9. Appellant
failed to comply with his court-ordered mental health treatment, provided
false urine samples to his probation officer, tested positive for marijuana,
repeatedly failed to meet with his probation officer, and provided her with
false information about his participation in the treatment program. Upon
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1
“[A] claim that a particular probation revocation sentence is excessive in
light of its underlying technical violations can present a question that we
should review.” Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super.
2007).
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review, we find no abuse of discretion in the trial court’s determination that
Appellant’s sentence of incarceration was appropriate to vindicate the
authority of the court. See Trial Court Opinion, 8/21/14, at 6. Therefore,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2015
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Com. v. Simmons, S.
Combined Opinion