Com. v. Smith, R.

J-S34015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

RALPH E. SMITH,

Appellant No. 1229 MDA 2014

Appeal from the Judgment of Sentence June 23, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000647-2000
CP-36-CR-0000648-2000

BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 25, 2015

Ralph E. Smith appeals from the judgment of sentence of three and

one-half to seven years incarceration that was imposed after he violated a

technical condition of his probation. We affirm.

This appeal stems from Appellant’s violation of probation imposed on

three offenses to which he pled guilty at two related criminal action numbers

on August 14, 2001.1 The pleas arose from Appellant’s sexual assault of his

daughter during June and July of 1999. As a consequence of the guilty
____________________________________________

1
Appellant originally pled guilty to a total of six offenses. Specifically, at
each of the two above-captioned criminal dockets, Appellant pled guilty to
aggravated indecent assault, indecent assault, and corruption of minors.
However, three of the sentences expired before Appellant committed the
instant probation violation.
J-S34015-15

pleas, Appellant was required to comply with the registration requirements

of Pennsylvania’s version of Megan’s Law. Appellant was subsequently

sentenced pursuant to the negotiated guilty pleas to time served (215 days)

to twenty-three months imprisonment followed by eight years of probation.

Appellant violated the terms of his probation six times over the next twelve

years. “Two of these violations involved contact with a minor, three of the

violations involved drug use, and the rest involved discharge from

treatment.” N.T., Violation Hearing, 01/02/14, at 2.

The immediate appeal stems from the sentences imposed after

Appellant’s seventh probation violation, which occurred on September 6,

2013, when he failed to report to his probation officer, Donald Acker. Id.

Officer Acker visited Appellant’s last known address two days after the

missed appointment and discovered that Appellant no longer lived at that

address and had not notified anyone of this change. Id. at 3. Appellant was

not located by authorities until October 17, 2013, and was subsequently

charged with failure to register with the Pennsylvania State Police pursuant

to the reporting requirements of Pennsylvania’s Megan’s Law. Id.

On January 2, 2014, Appellant stipulated to the facts underlying the

technical violation of probation for his failure to report to his probation

officer. The trial court revoked Appellant’s probation and ordered a

presentence investigation (“PSI”) report. On June 11, 2014, the trial court

imposed the probation revocation sentence of four to eight years

-2-
J-S34015-15

incarceration with credit for time served.2 N.T., Violation Sentencing,

6/11/14, at 18. During the same proceeding, Appellant pled guilty to one

count of failure to register with the Pennsylvania State Police.3 In that case,

which was docketed at No. 5821-2013, the trial court imposed the

negotiated sentence of two and one-half to five years imprisonment, which

was to run concurrently with the probation violation sentence.4 Id. at 18.

On June 23, 2014, the trial court vacated the revocation sentence based on

a credit miscalculation and imposed three and one-half to seven years

imprisonment, again with credit for time served. Appellant filed a motion to

modify sentence on July 3, 2014, which was denied by the trial court. He

filed a timely notice of appeal to this Court on July 23, 2014.

Appellant presents one issue for our review: “Was an aggregate

sentence of three and one-half to seven years incarceration manifestly
____________________________________________

2
The PSI revealed that Appellant served approximately 500 days in jail on
these offenses excluding the most recent period of incarceration while he
awaited resentencing.
3
To be clear, the trial court revoked Appellant’s probation due to the
technical violation of Appellant’s failure to report to his probation officer and
not Appellant’s subsequent Megan’s Law violation at criminal action number
5821-2013. Although the trial court opinion suggests that the probation
revocation was predicated, at least in part, upon that offense, the certified
record confirms that the trial court found the technical violation and revoked
Appellant’s probation five months before Appellant pled guilty to the Megan’s
Law violation.
4
Appellant did not appeal the sentence imposed on the Megan’s Law
violation, and we do not address it herein.

-3-
J-S34015-15

excessive and clearly unreasonable under the circumstances of this case?”

Appellant’s brief at 4.

Appellant’s argument challenges the discretionary aspects of his

sentence. Our standard of review when an appeal challenges the

discretionary aspect of sentencing requires that this Court conduct a four-

part analysis to determine: (1) whether Appellant has filed a timely notice of

appeal; (2) whether the issue was preserved at sentencing or in a motion to

modify the sentence; (3) whether the brief contains a statement of the

reasons relied upon for the appeal in compliance with Pa.R.A.P 2119(f), and;

(4) whether there is a substantial question that the sentence appealed from

is not appropriate under the sentencing code. Commonwealth v. Bullock,

948 A.2d 818, 825-826 (Pa. Super. 2008).

Appellant’s notice of appeal was timely filed within thirty days of the

date the revocation sentence was imposed, and the issue was asserted in his

motion for modification of his sentence and preserved in a concise statement

of the errors complained of on appeal in accordance with Pa.R.A.P. 1925(b).

Additionally, Appellant set forth in a separate section of his brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of the sentence pursuant to Pa.R.A.P 2119(f).

Thus, we must determine whether his assertion raises a substantial

question.

-4-
J-S34015-15

An appellant must demonstrate that there is a “substantial question”

that the imposition of such a sentence is inappropriate in order to appeal.

42 Pa.C.S § 9781(b). “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.”

Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001). An

abuse of discretion exists when “the record discloses that the judgment

exercised was manifestly unreasonable, or the result of partiality, prejudice,

bias or ill-will.” Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996).

Appellant asserts that the aggregate sentence of three and one-half to

seven years imprisonment is manifestly excessive in light of the fact that the

trial court imposed the sentence without considering several factors relative

to the circumstances of the offenses, the violation, and his rehabilitative

needs. Initially, Appellant argues that the trial court abused its discretion in

failing to account for his continuing struggles with homelessness and that

the complexities of registration under the requirements of Megan’s Law

mitigated his probation violation. N.T., Violation Sentencing, 6/11/14, at

11-12. Appellant also advances the argument that this particular violation

was a purely technical one, which occurred as a result of a change in the

landlord/tenant regulations of the borough in which he was residing. Id. at

12. The change, he argues, caused him to be evicted without notice. Id.

He continues that his fear that losing his approved address, coupled with his

-5-
J-S34015-15

prior violations, caused him to believe that he would be automatically sent

back to prison. Id. at 13. As a result, he avoided addressing the situation

with his probation officer and began to camp in a wooded area. Id.

The final consideration that Appellant asserts the trial court allegedly

neglected to consider was that he attempted to turn himself in to the

Lancaster County Prison one weekend after he set up camp in the woods but

was turned away by prison officials. He alleges that the prison authorities

instructed that they would not accept his surrender because no warrant had

been issued for his arrest. Id. Appellant apparently construed this to mean

that he had no other options but to return to his campsite and wait for a

warrant to be issued for his arrest on the probation violation.

In sum, Appellant contends that the trial court’s failure to consider the

combined effect of the foregoing points prior to imposing the judgment of

sentence made his sentence of three and one-half to seven years

incarceration “manifestly excessive and clearly unreasonable under the

circumstances of this case.” Appellant’s brief at 4, 12. Appellant’s assertion

raises a substantial question that the sentence is inappropriate.

Commonwealth v. Parlante, 823 A.2d 927, 930 (Pa.Super 2003)

(allegation that trial court imposed sentence that is disproportionate to crime

and failed to consider, inter alia, background or nature of offense raised

plausible arguments that sentence was contrary to fundamental norms which

underlie sentencing process); see also Commonwealth v. Crump, 995

-6-
J-S34015-15

A.2d 1280, 1283 (Pa. Super. 2010) (“[t]he imposition of a sentence of total

confinement after the revocation of probation for a technical violation, and

not a new criminal offense, implicates the ‘fundamental norms which

underlie the sentencing process.’”)

The sentencing code provides, “the court shall follow the general

principle 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(b). Courts may

sentence a defendant to a period of total confinement following the

revocation of probation if:

(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. § 9771(c). When imposing a sentence, the certified record must

demonstrate that the trial court was aware of and considered the above

referenced statutory factors, the unique facts of the crime, and the character

of the defendant. Crump, supra at 1283.

Contrary to Appellant’s claims, the record indicates that the trial court

considered all of the factors enumerated under 42 Pa.C.S.§§ 9721(b) and

9771(c), the prior probation violations, and Appellant’s character when

-7-
J-S34015-15

imposing his sentence. Preliminarily, we observe that the trial court

reviewed the PSI in this case and that report is included in the certified

record. Our Supreme Court has held that a sentencing court which has

received a pre-sentence investigation report is considered to have been fully

informed of the relevant factors prior to sentencing. Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988).

Additionally, we note that Appellant pled guilty to violating the

registration requirements of Megan’s Law. While this offense was not the

basis of the instant parole revocation, at a minimum, the guilty plea evinces

the serious nature of Appellant’s continuing technical violations and confirms

the trial court’s concern that Appellant will commit another crime if he is not

imprisoned. Cf. Commonwealth v. Ware, 737 A.2d 251, 254 (Pa.Super.

1999) (unrelated conviction for another crime is grounds for revocation of

probation and imposition of sentence of total confinement).

As it relates to the trial court’s express rationale for fashioning the

specific sentence imposed herein, one factor the sentencing court

emphasized was Appellant’s long history of probation violations since being

released from prison. Appellant had been under supervision for twelve and

one-half years by the time of his most recent sentence, and had violated the

conditions of his release six times prior to his most recent violation for

failure to report. N.T., 6/11/14, at 15. These violations included three

separate drug violations despite the fact he was fully aware that he would be

-8-
J-S34015-15

regularly tested. Id. In addition, Appellant failed to complete, and was

subsequently discharged from, three different sex offender treatment

programs after repeatedly failing to attend treatment sessions or comply

with their supervision requirements. Id. at 16. Appellant continued to have

contact with minors in direct violation of his probation requirements. Id.

While these violations may only be technical, their regular and continuous

nature over a twelve and one-half year period, coupled with the seriousness

of the underlying crimes for which he had originally been convicted, led the

sentencing court to conclude that Appellant was clearly not committed to his

own rehabilitation or to compliance with the rules of his probation. Id. at

15.

In Parlante, supra, this Court overturned the defendant’s sentence of

four to eight years in prison after it was determined that the sentencing

court had failed to consider all of the relevant factors during sentencing,

despite the fact that she had seven technical and non-technical violations of

her probation. Appellant avers that his case is similar to Parlante based on

the numerous violations of probation and his assertion that the sentencing

court also failed to give consideration to all the relevant factors in his case.

Appellant’s brief at 9. However, one of the main factors that this Court

considered in reversing the sentence in Parlante was that the defendant in

that case had never committed a violent crime. Id. at 931. The case at bar

is distinguishable on this basis due to the inherent violence in the underlying

-9-
J-S34015-15

crimes of aggravated indecent assault and indecent assault, four of the six

offenses that Appellant committed against his minor daughter.

Appellant’s case shares far more similarities with the facts in

Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000). The Sierra

Court upheld the sentencing court’s imposition of the statutory maximum

sentence following the defendant’s technical violations of her probation and

subsequent arrest for simple assault. Id. at 915. The judge in Sierra

stated, on the record, that the appellant’s actions clearly indicated that

probation had been ineffective in rehabilitating her, as well as his belief that

her conduct indicated that it was likely that she would commit another crime

if not imprisoned. Id. at 914. In Commonwealth v. Cappellini, 690 A.2d

1220, 1225 (Pa.Super. 1997) the court reached the same conclusion after

determining that defendant’s continued drug use and inability to complete

substance abuse treatment in accordance with the rules of his probation

illustrated the likelihood that he would commit another crime. These factors

are in compliance with those that may be used by a sentencing court to

justify a new sentence of total incarceration after a revocation of probation

under 42 Pa.C.S. § 9771(c).

In Commonwealth v. Martin, 611 A.2d 731 (Pa.Super 1992), this

Court upheld the defendant’s sentence on the basis that the sentencing

judge’s statements following his reading of the pre-sentence report indicated

that he had correctly considered and balanced all of the relevant factors. At

- 10 -
J-S34015-15

sentencing the trial court asserted that it was “particularly concerned”

because of the defendant’s prior sexual offense and the fact that he had

committed another rape less than one month after his release. Id. at 735.

The sentencing court in the immediate case addressed her concerns on the

record in a similar fashion.

Of the prior violations, three were for marijuana use, certainly an
indication that even though you’re under supervision and you know
that it’s gonna come out, that you’re unable or willing to conform your
behavior or get any level of attention or treatment that will prevent
you from future violations on that basis. What’s more disturbing is that
three of the tech[nical violations] in a row, 2005, 2006, and 2008,
were discharge from sex offender treatment. One was for pornography
use, contact with a minor; one was recanting your admission to the
underlying offense, contact with the victim; and another was failure to
attend the treatment sessions and contact with a minor. And that’s
serious. To me, those technical violations are every bit as worrisome
and serious as failure to register.

N.T. Sentencing Hearing, 6/11/14, at 15.

In addition, the trial court acknowledged Appellant’s struggles with

homelessness but disregarded Appellant’s contention that the requirements

under Megan’s Law were confusing because he had been under supervision

long enough to learn the rules. Id. at 11, 16. Appellant was missing for

over a month and never contacted his probation officer to explain his

situation. In fact, Appellant was not apprehended until a police officer

happened upon him and discovered the existence of a warrant for

Appellant’s arrest. Id. at 13.

- 11 -
J-S34015-15

Appellant has failed to prove that the lower court abused its discretion

or that the sentence which it imposed upon him was manifestly excessive or

unreasonable under the circumstances of his case. The sentencing court

accounted for all of the relevant factors necessitated by 42 Pa.C.S. §§ 9721

and 9771(c) in fashioning the instant sentence. The factors included

Appellant’s character, struggles with homelessness, prior violations of the

terms of his probation, failed attempts at completing rehabilitative

treatment, and the seriousness of the underlying crimes for which he was

originally convicted. Hence, the certified record demonstrates that the trial

court considered the unique facts of the crime and Appellant’s character.

This is Appellant’s seventh violation of the terms of his probation and

although the violation is technical, his personal background and criminal

history indicated the likelihood of recidivism—a designation that Appellant

subsequently confirmed by pleading guilty to the criminal offense of failing

to register pursuant to Megan’s Law.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/25/2015

- 12 -