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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALPHONSO WHITEHEAD
Appellant No. 1271 EDA 2014
Appeal from the Judgment of Sentence entered February 23, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0013377-2009
BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 13, 2015
Appellant, Alphonso Whitehead, appeals from the February 23, 2011
judgment of sentence imposing 24 to 54 months of incarceration followed by
24 months of probation following Appellant’s violation of probation. We
affirm.
In 1989, Appellant was convicted of two counts of involuntary deviate
sexual intercourse (“IDSI”).1 On June 2, 2010, Appellant pled guilty to
failing to verify his address with police pursuant to then-effective 18
Pa.C.S.A. § 4915. On that date, the trial court sentenced Appellant to 11 to
23 months of incarceration followed by seven years of probation. Appellant
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3123.
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was paroled on June 10, 2010. At a June 15, 2010 office meeting with his
parole officer, Appellant tested positive for cocaine. Appellant missed a
scheduled visit on August 26, 2010. On September 10, 2010, Appellant
attended an office visit and once again tested positive for cocaine. Appellant
missed a scheduled visit on October 14, 2010.2
On January 5, 2011, the trial court conducted a violation hearing and
revoked Appellant’s probation based on Appellant’s failure to report to his
probation officer and two positive drug tests. On February 23, 2011, the
trial court imposed the sentence on appeal. On March 11, 2011, Appellant
filed an untimely motion for reconsideration. In its opinion, the trial court
states it denied this motion. Trial Court Opinion, 6/23/14, at 2. The
certified record and docket contain no evidence of any trial court action on
the untimely motion. Appellant did not file a timely appeal. On April 4,
2014, the PCRA3 court issued an order permitting Appellant to file a direct
appeal nunc pro tunc. Appellant filed this timely nunc pro tunc appeal on
April 24, 2014. He argues the trial court erred in revoking his probation and
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2
Appellant also was arrested once again for failing to register his address to
police when Appellant’s girlfriend reported to police that he no longer lived at
the address they had on file for him. The charges were dropped after a
preliminary hearing, and we do not rely on this additional arrest in our
analysis.
3
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
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that the court abused its discretion in imposing a harsh and excessive
sentence. Appellant’s Brief at 8. We will address these issues in turn.
Appellant first argues the Commonwealth produced insufficient
evidence justify revocation of his probation. We review that argument as
follows:
A challenge to the sufficiency of the evidence is a question
of law subject to plenary review. We must determine whether
the evidence admitted at trial and all reasonable inferences
drawn therefrom, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to support all
elements of the offenses. A reviewing court may not weigh the
evidence or substitute its judgment for that of the trial court.
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. When assessing whether to revoke
probation, the trial court must balance the interests of society in
preventing future criminal conduct by the defendant against the
possibility of rehabilitating the defendant outside of prison. In
order to uphold a revocation of probation, the Commonwealth
must show by a preponderance of the evidence that a defendant
violated his probation. [T]he reason for revocation of
probation need not necessarily be the commission of or
conviction for subsequent criminal conduct. Rather, this
Court has repeatedly acknowledged the very broad standard that
sentencing courts must use in determining whether probation
has been violated[.] A probation violation is established
whenever it is shown that the conduct of the probationer
indicates the probation has proven to have been an ineffective
vehicle to accomplish rehabilitation and not sufficient to deter
against future antisocial conduct.
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014)
(emphasis added), appeal denied, ___ A.3d ___; 2015 Pa. LEXIS 309
(February 11, 2015).
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Appellant argues the trial court erred in revoking his probation based
on technical parole violations rather than the commission of a new offense.
In addition, Appellant argues the trial court acted prematurely in revoking
Appellant’s probation before the probation sentence commenced. Finally,
Appellant argues the trial court offered an insufficient factual basis upon
which to conclude Appellant was not amenable to rehabilitation. These
arguments lack any basis in law or fact.
The bolded portion of the quote from this Court’s opinion in Colon
provides that commission of a new criminal offense is not a prerequisite to
revocation of probation. Colon, 102 A.3d at 1041. Furthermore, we have
held:
If, at any time before the defendant has completed the
maximum period of probation, or before he has begun
service of his probation, he should commit offenses of such
nature as to demonstrate to the court that he is unworthy of
probation and that the granting of the same would not be in
subservience to the ends of justice and the best interests of the
public, or the defendant, the court could revoke or change the
order of probation. A defendant on probation has no contract
with the court. He is still a person convicted of crime, and the
expressed intent of the Court to have him under probation
beginning at a future time does not “change his position from
the possession of a privilege to the enjoyment of a right.”
Commonwealth v. Ware, 737 A.2d 251, 253-254 (Pa. Super. 1999)
(emphasis in original) (quoting Burns v. United States, 287 U.S. 216, 222
(1932)), appeal denied, 747 A.2d 900 (Pa. 1999). Thus, the trial court had
authority to revoke Appellant’s probation sentence prior to its
commencement.
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Turning to the facts, the record confirms Appellant’s continued drug
abuse and his failure to report to several scheduled visits with his parole
officer. N.T., 1/5/11, at 5-8. Appellant has received probation sentences on
several prior offenses and has never successfully completed any of them
because he repeatedly fails to report to scheduled visits. Id. at 8. For these
reasons, the trial court acted within its discretion in finding Appellant’s
conduct indicates probation has been an ineffective vehicle of rehabilitation.
Colon, 102 A.3d at 1041.
Next, Appellant argues the trial court abused its sentencing discretion
by imposing an excessively harsh sentence. To preserve a challenge to the
trial court’s sentencing discretion, an appellant must file a timely notice of
appeal, preserve the issue in a timely post-sentence motion, include a
Pa.R.A.P. 2119(f) statement in the appellate brief, and present a substantial
question for our review. Colon, 102 A.3d at 1042-43. Instantly, Appellant
filed a timely nunc pro tunc appeal within thirty days of the PCRA court’s
order granting that relief. As noted above, the certified record fails to reflect
any trial court action on the untimely motion for reconsideration of his
sentence. The Colon Court noted that an untimely motion for modification
of a sentence will preserve the issue for review where the trial court acts on
the motion within thirty days. Id. at 1043 n.2. In this case, the record does
not confirm the trial court’s assertion that it acted on Appellant’s motion,
and Colon therefore does not apply.
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In Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009), our
Supreme Court held that an order permitting a nunc pro tunc direct appeal
does not automatically permit a nunc pro tunc post-sentence motion. Id. at
1093-94. The Liston Court disapproved that course of action because it
could award certain litigants the right to pursue collateral claims on direct
appeal. Id. Here, Appellant does not assert a collateral attack on his
judgment of sentence. Nonetheless, the holding in Liston applies with equal
force. The Liston Court explained that the failure to file a post-sentence
motion is not among the few circumstances where courts will presume
prejudice from counsel’s ineffectiveness. Id. at 1092 n.7 (citing
Commonwealth v. Reaves, 923 A.2d 1119, 1125 (Pa. 2007)). Appellant
therefore needed to plead and prove to the PCRA court that counsel was
ineffective for failing to file a timely post-sentence motion before the PCRA
court could award him the right to file a nunc pro tunc post-sentence
motion. Appellant did not do so. Appellant therefore has not properly
preserved his sentencing argument for review in this nunc pro tunc appeal.
Assuming arguendo Appellant’s sentencing challenge is reviewable in
this appeal, and that the trial court’s order addressing Appellant’s post-
sentence motion was inadvertently omitted from the record, we would find
Appellant’s argument lacking in merit. In his Pa.R.A.P. 2119(f) statement,
Appellant asserts the trial court abused its discretion in imposing a
manifestly excessive sentence that fails to account for the protection of the
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public, the gravity of the offense, and Appellant’s rehabilitative needs, in
accord with 42 Pa.C.S.A. § 9721(b). Specifically, Appellant argues the
sentence is excessive in light of Appellant’s technical probation violations.
Appellant’s assertions raise a substantial question appropriate for appellate
review. Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super.
2006) (finding a substantial question where the appellant argued the trial
court imposed an excessive sentence for technical probation violations).
The following standard governs our review of the merits.
The imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed
on appeal. An abuse of discretion is more than an error in
judgment — a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In determining whether a sentence is manifestly
excessive, the appellate court must give great weight to the
sentencing court’s discretion, as he or she is in the best position
to measure factors such as the nature of the crime, the
defendant’s character, and the defendant’s display of remorse,
defiance, or indifference.
Upon revoking probation, a sentencing court may choose
from any of the sentencing options that existed at the time of
the original sentencing, including incarceration. [U]pon
revocation [of probation] ... the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence.
Colon, 102 A.3d at 1043-44.
Section 9771(c) of the Sentencing Code permits a sentence of total
confinement after revocation of probation where the defendant has been
convicted of a new crime; where his conduct indicates likelihood that he will
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commit another crime; or to vindicate the authority of the court. Appellant
mentions § 9771(c) in passing but does not develop any argument
concerning its application. Appellant’s Brief at 19. In any event, Appellant’s
multiple criminal history and repeated violations of probation evince a
likelihood of future offense and a need to vindicate the authority of the trial
court.
Appellant argues his occasional homelessness combined with his drug
addiction pose substantial obstacles to his compliance with probation. Thus,
he believes the trial court failed to account for his rehabilitative needs under
§ 9771(c). He also argues the trial court failed to offer an on the record
explanation of its sentence.
At sentencing, the trial court noted its familiarity with what it deemed
an “exhaustive” pre-sentence investigation report. N.T., 2/23/11, at 9. The
trial court also noted Appellant’s criminal history, including forgery and theft
of a motor vehicle in addition to the IDSI convictions. Id. at 13. The trial
court also noted Appellant’s refusal to accept that he is required, as a sexual
offender, to register his address with police. Id. at 9-10, 13. The trial court
recommended Appellant for treatment for his cocaine abuse. Id. at 15. The
trial court encouraged Appellant to take advantage of the vocational training
offered in prison. Id. at 15. The court summarized its thought process as
follows:
[W]hat I’m doing is balancing the need to protect society
from people who have convictions like [IDSI] against
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[Appellant’s] rehabilitative needs and I think I framed the
appropriate sentence. It’s not a maximum sentence, but I think
it’s a sentence that will strike the right balance between
[Appellant] being put on the right path and society being
protected in the meantime.
Id. at 17.
In summary, the sentencing transcript plainly reflects the trial court’s
efforts to apply § 9721(b), with particular attention to Appellant’s
rehabilitative needs. The Court reasoned Appellant will have opportunities
for rehabilitation while incarcerated without posing a risk to society in the
meantime. Given Appellant’s history of repeatedly failing to comply with the
conditions of his probation, we believe the trial court acted well within its
discretion in imposing sentence.
Since neither of Appellant’s assertions of error warrants relief, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2015
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