Com. v. Myers, J.

J-S49010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOSEPH WAYNE MYERS,

Appellant No. 45 MDA 2015

Appeal from the Judgment of Sentence Entered September 11, 2012
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002750-2009

BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 21, 2015

Appellant, Joseph Wayne Myers, appeals nunc pro tunc from the

September 11, 2012 judgment of sentence of 18 to 36 months’

incarceration, followed by two years’ probation, imposed after the court

revoked his term of probation based on a single technical violation.

Appellant contends that the court abused its discretion in fashioning his

sentence of total confinement. After careful review, we are compelled to

agree. Therefore, we vacate Appellant’s sentence and remand for

resentencing.

On December 4, 2009, Appellant pled guilty to one count of possession

with intent to deliver (PWID), and one count of resisting arrest. Appellant

was initially sentenced on March 16, 2010, to a term of 16 to 32 months’

incarceration, followed by two years’ probation, for the PWID conviction. He

also received a consecutive term of two years’ probation for the resisting
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arrest offense. Thus, his aggregate sentence was 16 to 32 months’

incarceration, followed by four years’ probation.

Appellant served the maximum term of incarceration and was released

in June of 2012. He then began serving his term of probation under the

supervision of the Office of Adult Probation. On August 7, 2012, that office

“sought to revoke [Appellant’s] … probation based upon a technical violation

alleged to involve being in an establishment that served alcohol.”

Appellant’s Brief at 5. On September 11, 2012, the court held a hearing on

the probation revocation request. During that proceeding, Appellant

stipulated that he violated a condition of his probation. Based on that single

violation, the court revoked Appellant’s probation and imposed a new

sentence of 18 to 36 months’ incarceration, followed by two years’

probation.

Appellant did not file a post-sentence motion or direct appeal from this

new imposition of sentence. However, on February 26, 2013, he filed a

petition for relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-

9546, seeking reinstatement of his right to file a post-sentence motion

and/or direct appeal from the September 11, 2012 revocation/resentencing.

On June 17, 2014, the court granted Appellant’s petition. Appellant filed a

timely post-sentence motion on June 25, 2014.1 On December 8, 2014,

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1
We note that Appellant’s post-sentence motion is not contained in the
certified record.

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Appellant’s post-sentence motion was denied by operation of law.2 Appellant

filed a timely notice of appeal, after which the court ordered him to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

While Appellant timely complied with that order, the revocation court has not

issued a Rule 1925(a) opinion.

On appeal, Appellant presents one issue for our review: “Did the

[revocation] court abuse its discretion by imposing a manifestly excessive

sentence of total confinement, after revocation of special probation, without

considering all relevant factors of the Sentencing Code and failing to state its

reasons on the record for a sentence of total confinement?” Appellant’s Brief

at 4. Initially, we note our standard of reviewing Appellant’s discretionary

aspects of sentencing challenge:

Our standard of review is well settled. Sentencing is a matter
vested within the discretion of the trial court and will not be
disturbed absent a manifest abuse of discretion.
Commonwealth v. Johnson, 967 A.2d 1001 (Pa. Super.
2009). An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d
957 (2007). It is also now accepted that in an appeal following
the revocation of probation, it is within our scope of review to
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2
The Clerk of Judicial Records of Lackawanna County issued the order
stating that Appellant’s post-sentence motion was denied by operation of law
“pursuant to Pa.R.Crim.P. 720(B)(2)….” However, the appropriate
subsection of Rule 720 is (B)(3)(a), which states, in pertinent part, “[i]f the
judge fails to decide the motion within 120 days, or to grant an extension as
provided in paragraph (B)(3)(b), the motion shall be deemed denied by
operation of law.” Pa.R.Crim.P. 720(B)(3)(a).

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consider challenges to both the legality of the final sentence and
the discretionary aspects of an appellant's sentence.
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super.
2006).

…

We note that there is no absolute right to appeal when
challenging the discretionary aspect of a sentence.
Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.
2008). Appeal is permitted only after this Court determines that
there is a substantial question that the sentence was not
appropriate under the sentencing code. Id. at 886. A substantial
question is raised when the appellant sets forth a plausible
argument that the sentence violates a provision of the
sentencing code or is contrary to the fundamental norms of the
sentencing process. Id.

When a challenge to the discretionary aspect of a sentence
is raised, an appellant must provide a separate statement
specifying where the sentence falls in the sentencing guidelines,
what provision of the sentencing code has been violated, what
fundamental norm the sentence violates, and the manner in
which it violates the norm. Pa.R.A.P. 2119(f).

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).

Here, Appellant has included a Rule 2119(f) statement in his brief,

asserting that the revocation court erred by imposing “a sentence of total

confinement without considering the factors set out in the Sentencing

Code[,]” without “being fully informed of [Appellant’s] background through a

PSI or engag[ing] [Appellant] in a colloquy as to his background[,]” and

without “placing a statement on the record explaining the basis of total

confinement….” Appellant’s Brief at 8. Appellant also maintains that the

revocation court “abused its discretion by imposing a manifestly excessive

sentence which constitutes too severe a punishment without considering all

relevant factors pursuant to the Sentencing Code[,] such as … the entire

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background of [Appellant]….” Id. We consider Appellant’s assertions as

presenting substantial questions for our review. See Crump, 995 A.2d at

1282 (considering as a substantial question the appellant’s claim that the

court abused its discretion by imposing a sentence of total confinement for

technical violations of probation); Commonwealth v. Flowers, 950 A.2d

330, 331 (Pa. Super. 2008) (considering as a substantial question the

appellant’s claim that the trial court failed to order a PSI or conduct an

appropriate colloquy at the sentencing hearing); Commonwealth v.

Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (considering as a

substantial question the appellant’s claim that the court did not state

sufficient reasons on the record for the sentence imposed, and imposed a

sentence that was excessive and disproportionate to the underlying technical

violations).

Appellant first avers that the court erred by imposing a term of

incarceration for a single, technical probation violation, and without

considering the factors set forth in 42 Pa.C.S. § 9771. That statute states,

in pertinent part:

(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

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(3) such a sentence is essential to vindicate the authority
of the court.

42 Pa.C.S. § 9771(c) (emphasis added).

Here, Appellant committed only a single, technical violation of his

probation. He was not convicted of a crime, so the court could not have

premised his sentence of total confinement on section 9771(c)(1).

Moreover, nothing in the record of the revocation/resentencing hearing

explicitly indicates whether the court determined a sentence of total

confinement was warranted based on subpart (c)(2) or (c)(3). That

proceeding, in its entirety, included the following:

[The Commonwealth]: Commonwealth vs. Joseph Myers
docketed at 09 CR 2750.

[Defense Counsel]: [Appellant] admits to the violation.

THE COURT: [Appellant], you understand you have a right to a
hearing on this and by stipulating you’re waiving that right to
have a hearing.

[Appellant]: Yes, sir.

THE COURT: As such I find that you are in violation.

[Defense Counsel]: Your Honor, Mr. Myers stands before you
today on his very first violation. He admits going to the bar that
night and grabbing food and watching a game was a big
mistake. He was unaware of his conditions [of probation] at the
moment.

THE COURT: He was unaware of his conditions?

[Appellant]: Like I don’t understand how I would be []
resentence[d]. The only thing I was told was that I was on
county probation supervised by the State. There [were] no
other conditions and my [probation officer], he didn’t have no
conditions.

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[Probation Officer]: Well, we supervised him on state parole. He
violated by absconding. He maxed out and shortly after maxing
out on the parole sentence and the consecutive probation he had
new violations. On [July 5, 2012,] I gave him written
instructions not to consume alcohol, not to enter bars, not to
operate a motor vehicle in addition to his standard general
conditions one through seven, which he had signed [] when he
was originally sentenced. And, again, that was [July 5, 2012].
He violated on [July 27, 2012,] and this was after he just got out
of state prison.

[Appellant]: I was in transfer of trying to move to Maryland so I
could better my life.

THE COURT: Wait wait wait. What does that have to do with the
violation?

[Appellant]: Your Honor, I take full responsibility for that.

THE COURT: That’s a little better. At this time we’re going to
revoke the two year special probation, both of them, and the
first one we’ll be sentencing you to state [incarceration] for one
and a half to three years, and the second, [to] two years’
probation. No drugs or alcohol and follow all of the other
conditions of probation. Good luck, sir.

[Appellant]: Thank you.

N.T., 9/11/12, at 2-4.

Even assuming from this scant record that the court determined a

sentence of total confinement was “essential to vindicate the authority of the

court[,]” 42 Pa.C.S. § 9771(c)(3), the court’s failure to provide any

discussion in this regard is improper. Our Supreme Court recently stated,

“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.’” Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa.

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2014) (quoting 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.”)). It is true that after revoking a

term of parole/probation, “a sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statutes in question.” Id. at 28. However, in this case the court imposed

Appellant’s sentence with absolutely no explanation of why a term of total

confinement was necessary based on Appellant’s single, technical violation of

his probation.3 Thus, we are constrained to conclude that the court erred.

Additionally, the court offered no reason(s) for why it fashioned a

lengthier term of imprisonment than that which was originally imposed. We

acknowledge our Supreme Court’s directive that “a trial court does not

necessarily abuse its discretion in imposing a seemingly harsher post-

revocation sentence where the defendant received a lenient sentence and

then failed to adhere to the conditions imposed on him.” Pasture, 107 A.3d

at 28 (citation omitted). However, such a sentence must be “adequately

considered and sufficiently explained on the record by the revocation

judge….” Id. at 29. Again, the court did not provide any discussion for the

sentence it imposed; therefore, we cannot conclude that the court

____________________________________________

3
We also reiterate that the court did not submit a Rule 1925(a) opinion to
aid this Court in understanding the basis for Appellant’s sentence.

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adequately considered the basis for imposing Appellant’s harsher term of

incarceration.

Finally, we agree with Appellant that the court erred by failing to order

a PSI or state why it dispensed with doing so. See Pa.R.Crim.P. 702(A)(2)

(directing that “[t]he sentencing judge shall place on the record the reasons

for dispensing with the pre-sentence investigation report if the judge fails to

order a pre-sentence report … [] when incarceration for one year or more is

a possible disposition under the applicable sentencing statutes”). We

concede that “technical noncompliance with the requirements of Rule

702(A)(2) might have been rendered harmless [if] the court elicit[s]

sufficient information during the colloquy to substitute for a PSI report,

thereby allowing a fully informed sentencing decision[.]” Commonwealth

v. Carrillo-Diaz, 64 A.3d 722, 726-727 (Pa. Super. 2013) (quoting

Commonwealth v. Flowers, 950 A.2d 330, 333 (Pa. Super. 2008)). Here,

however, the scant record of the revocation/resentencing hearing does not

demonstrate that the court applied “a level of thoroughness afforded by a

properly crafted PSI report,” and that the court considered “factors germane

to either [Appellant’s] original offense or his current violation of probation.”

Flowers, 950 A.2d at 333.4

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4
A properly crafted PSI report must at least address the following factors:

(Footnote Continued Next Page)

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We note, as the Commonwealth points out, that the same judge

presided over Appellant’s guilty plea hearing, initial sentencing proceeding,

_______________________
(Footnote Continued)

(A) a complete description of the offense and the circumstances
surrounding it, not limited to aspects developed for the record as
part of the determination of guilt;

(B) a full description of any prior criminal record of the offender;

(C) a description of the educational background of the offender;

(D) a description of the employment background of the offender,
including any military record and including his present
employment status and capabilities;

(E) the social history of the offender, including family
relationships, marital status, interests and activities, residence
history, and religious affiliations;

(F) the offender's medical history and, if desirable, a
psychological or psychiatric report;

(G) information about environments to which the offender might
return or to which he could be sent should probation be granted;

(H) supplementary reports from clinics, institutions and other
social agencies with which the offender has been involved;

(I) information about special resources which might be available
to assist the offender, such as treatment centers, residential
facilities, vocational training services, special educational
facilities, rehabilitative programs of various institutions to which
the offender might be committed, special programs in the
probation department, and other similar programs which are
particularly relevant to the offender's situation;

(J) a summary of the most significant aspects of the report,
including specific recommendations as to the sentence if the
sentencing court has so requested.

Flowers, 950 A.2d at 333 n.2 (citations omitted).

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and revocation/resentencing hearing. At the time of the initial sentencing,

the court had the benefit of a PSI, and was also orally informed at the

hearing of Appellant’s age, personal and familial history, and Appellant’s

drug addiction issues. N.T. Sentencing, 3/16/10, at 2. The court was also

told that while incarcerated prior to sentencing, Appellant had attended drug

and alcohol treatment, and had also participated in anger management

programs. Id. at 3. However, the court noted that Appellant also had

disciplinary issues while in prison, and had a lengthy criminal history in

Lackawanna County, as well as other surrounding counties. Id. at 4. After

reviewing Appellant’s criminal history, the court provided the following

rationale for imposing Appellant’s sentence:

THE COURT: I am going to make you RRRI[5] eligible so that you
can receive programming, and I hope that you’re going to utilize
it so that when you get back out, you can start doing the things
you’re supposed to do.

Id. at 4-5.

From this record, it is apparent that at the time of Appellant’s initial

guilty plea and sentencing hearings, the court was aware of Appellant’s

personal characteristics, history, and the facts of the offenses to which he

pled guilty. This record also indicates that the court imposed a term of

____________________________________________

5
Recidivism Risk Reduction Incentive Act (RRRI Act), 61 Pa.C.S. §§ 4501-
4512.

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incarceration mainly to aid Appellant in rehabilitating himself from his drug

addiction.

However, at Appellant’s revocation/resentencing proceeding, the court

did not obtain any information regarding Appellant’s current situation or

individual needs, or the status of his recovery from his drug addiction. See

Flowers, 950 A.2d at 334 (“[E]ach person sentenced must receive a

sentence fashioned to his or her individual needs. To achieve that objective,

the trial judge, before imposing sentence, even on a probation or parole

revocation, must actively explore the defendant’s character and his potential

response to rehabilitation programs.”) (citations omitted). The court also

made no mention of having reviewed Appellant’s original PSI before

imposing his new sentence. Therefore, although the court had previous

contact with Appellant at his plea and original sentencing proceedings, the

record of the revocation/resentencing hearing does not convince us that the

court properly considered Appellant’s current situation and crafted a post-

revocation sentence that suits his individual needs. “In the absence of such

consideration, documented of record, the goals of individualized sentencing

are defeated and the trial judge’s exercise of discretion cannot be

sustained.” Id. (citation omitted).

For all of the foregoing reasons, we are compelled to conclude that the

court abused its discretion in imposing Appellant’s post-revocation sentence.

Therefore, we vacate Appellant’s sentence and remand for resentencing.

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Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015

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