J-S42021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY ANDREW DELGADO
Appellant No. 3382 EDA 2014
Appeal from the Judgment of Sentence October 14, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004712-2012
CP-39-CR-0004717-2012
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 28, 2015
Appellant, Anthony Andrew Delgado, appeals from the October 14,
2014 aggregate judgment of sentence of 7 to 18 years’ imprisonment,
imposed by the trial court after it held a Gagnon II1 hearing and revoked
Appellant’s parole and probation. After careful review, we affirm.
On January 3, 2013, Appellant pled guilty to two counts of possession
with intent to deliver a controlled substance (PWID) and two counts of
conspiracy to PWID.2 On February 14, 2013, the trial court sentenced
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*
Former Justice specially assigned to the Superior Court.
1
Gagnon v. Scarpelli, 411 U.S. 788 (1973) (discussing revocation
hearings).
2
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(c), respectively.
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Appellant to 12 months less two days to 24 months less two days, followed
by four years of probation. Appellant was paroled on September 11, 2013.
The trial court summarized the subsequent procedural history as follows.
Subsequent to his parole, Appellant failed to
meet with his probation officer on three separate
occasions, and failed to report for mandatory drug
testing on six occasions. On or about March 20,
2014, Appellant was closed out of the drug testing
facility SASSI due to inactivity. Based on this
pattern of behavior, Appellant’s probation officer
issued a violation. The officer ran a check and
learned that Appellant had some driving citations
before a local district magistrate. He spoke with the
magistrate’s staff on April 3, 2014 and learned that
Appellant was present in the magistrate’s office to
pay an unrelated fine.
Several probation officers proceeded to the
magistrate’s office to arrest Appellant. When the
officers attempted to effectuate the arrest, Appellant
resisted arrest. In the car in which Appellant
traveled to the office, Appellant’s two-year-old
daughter and his daughter’s mother were present.
Appellant also had two loaded shotguns in the trunk
and a stolen, loaded pistol in the center console.
Additionally, Appellant had a large quantity of
marijuana and heroin in his possession at the time of
his arrest.
Trial Court Opinion, 12/15/14, at 2-3 (footnote omitted).
Appellant appeared before the trial court on October 14, 2014 for the
Gagnon II hearing, after which the trial court re-sentenced Appellant to
serve the remaining balance on his parole and an aggregate three to ten
years imprisonment consecutive to the balance. N.T., 10/14/14, at 19-21.
Appellant filed a motion for reconsideration of sentence on October 24,
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2014, which the trial court denied on October 29, 2014. Appellant filed a
timely appeal on November 13, 2014.3
On appeal, Appellant raises the following issue for our review.
Whether the trial court abused its discretion after
probation revocation when it: (1) imposed a
manifestly excessive aggregate sentence of 4 to 12
years for two deliveries of about ½ gram of heroin
on [Appellant] with a minimal prior history but who
committed new offenses while on supervision; and
(2) based the severity of said aggregate sentence on
the circumstances of the new convictions to the
exclusion of other relevant factors?
Appellant’s Brief at 4.
We review a trial court’s sentence imposed following the revocation of
probation for an error of law or an abuse of discretion. Commonwealth v.
Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014). “[Our] scope of review in
an appeal from a revocation of sentencing includes discretionary sentencing
challenges.” Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa.
Super. 2013) (en banc). “An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or misapplied
or the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence or the record,
discretion is abused.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.
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3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Super. 2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa.
2010).
In this case, Appellant admitted to his violations and “accepted that he
faced additional state imprisonment in the violations cases.” N.T., 10/14/14,
at 2, 11. Appellant also stated that he is not appealing his parole
revocations. Appellant’s Brief at 5. Rather, Appellant argues that the court
imposed “manifestly unreasonable, excessive, and harsh sentences under
the particular circumstances of this case.” Id. at 12. Specifically, Appellant
asserts, “the court ran the VOP sentences consecutive to the sentence for
the new convictions resulting in an arbitrary punishment and an overall
aggregate sentence excessively disproportionate to [Appellant’s] conduct.”
Id. Appellant contends that “the trial court based the VOP sentences on one
factor – the gravity of the circumstances of the new convictions – to the
exclusion of any other factors.” Id. at 18. This challenge to the
discretionary aspects of his sentence is not appealable as of right. Colon,
supra at 1042.
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 [as required by
Rule 2119(f) of the Pennsylvania Rules of Appellate
Procedure]; 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
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Appellant’s attack on his sentence is not an appeal
as of right. Rather, he must petition this Court, in
his [Rule 2119(f)] concise statement of reasons, to
grant consideration of his appeal on the grounds that
there is a substantial question. [I]f the appeal
satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the
case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Here, Appellant filed a timely notice of appeal, preserved his
sentencing challenge in his motion for reconsideration of sentence, and
included a separate Rule 2119(f) concise statement in his appellate brief.
See generally Appellant’s Brief at 13-14. Moreover, Appellant has raised a
substantial question for our review by asserting that the trial court’s
sentence was unreasonable and excessive. See Commonwealth v. Kelly,
33 A.3d 638, 640 (Pa. Super. 2011) (holding “[a] claim that a sentence is
manifestly excessive such that it constitutes too severe a punishment raises
a substantial question.”); Commonwealth v. Mouzon, 812 A.2d 617, 628
(Pa. 2002) (recognizing that an excessiveness challenge can present a
substantial question even if the sentence is within the statutory limits).
Having determined that Appellant has met the threshold requirements,
we proceed to review the merits of his appeal. “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. Mazzetti, 9
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A.3d 228, 230 (Pa. Super. 2010) (citation omitted), affirmed, 44 A.3d 58
(Pa. 2012). Upon revocation of probation, a sentencing court has all of the
sentencing options that existed at the time of the original sentence. 42
Pa.C.S.A. § 9771(b). A sentence of total confinement may be imposed if the
defendant has been convicted of another crime. 42 Pa.C.S.A. § 9771(c)(1).
In addition, the imposition of consecutive rather than concurrent sentences
rests within the trial court’s discretion. Commonwealth v. Harvard, 64
A.3d 690, 703 (Pa. Super. 2013).
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.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).
[However,] in all cases where the court “resentences an
offender following 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.” Failure to comply with
these provisions “shall be grounds for vacating the
sentence or resentence and resentencing the defendant.”
Cartrette, supra at 1041, quoting 42 Pa.C.S.A. § 9721(b). “A trial court
need not undertake a lengthy discourse for its reasons for imposing a
sentence or specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the facts of the
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crime and character of the offender.” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010).
Here, our review of the record as a whole reveals no abuse of
sentencing discretion by the trial court. Two witnesses testified at the
revocation hearing. Mr. Pretopapa4, from the adult probation department,
was the first witness. He testified that Appellant violated the conditions of
his probation by failing to meet with Pretopapa on three occasions, failing to
report for drug testing on six occasions, and being “closed out” of the drug
program. N.T., 10/14/14, at 2-3. Pretopapa then “issued a violation”,
discovered that Appellant was in the magistrate’s office, and went to arrest
Appellant on the violation. Id. at 3. Pretopapa testified to the
circumstances as follows.
When we arrested [Appellant], he had drugs on him.
He resisted arrest. There were firearms involved.
He was ultimately charged and received 3 to 6 years
on the new case.
…
[T]here were two loaded shotguns with one in the
chamber in the trunk of the vehicle. There was also
a stolen 40 caliber handgun that was in the console
of the vehicle, Your Honor. He received 3 to 6 for
the Felony, PWI. Then I have three firearms
charges, 3 to 6, and then Resisting Arrest. He had a
large amount of marijuana and heroin on him.
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4
We note that Pretopapa’s first name does not appear in the certified
record.
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My recommendation, Your Honor, is that
[Appellant’s] parole be revoked, he be remanded to
serve the balance of the sentence. Probation is also
revoked and resentence him to 1 to 2 years on each
charge. They’re going to run consecutive as you
were running them originally to be served in State
Prison. He’s been in since the date of his arrest,
April 3rd of this year. He’s not going to be RRRI
eligible based on his record.
Id. at 3-4.
Appellant testified next. He recounted being placed on work release in
March 2013, and being “released from work release” on September 10,
2013, during which he worked both full and part-time jobs. Id. at 9.
Appellant additionally referenced his family and expressed his desire to be
released in time to take his daughter to the first day of school. Id. at 11.
The trial court then initiated the following exchange.
THE COURT: [Appellant], what’s going on? You
don’t sound like a stupid person. You sound like you
have some intelligence.
[APPELLANT]: I was using drugs. I was using
heroin, and – but the lawyer said that they weren’t
gonna buy – they weren’t gonna buy that I was
using – they weren’t gonna buy because it was so
much; 144 bags. They weren’t gonna buy that – his
personal use. But I know people that shoot up four
or five bundles in a day.
THE COURT: Okay. Let’s put that part of it
aside. What are you doing with two loaded shotguns
and a stolen handgun while you’re on parole?
[APPELLANT]: Basically, I took those charges
because I’m not gonna tell – I’m not gonna say
whose they were. If something – if I was to go and
say, oh, these are this persons, then that person is
out on the street, I still have to be in jail. If
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something happens to my family, nobody is gonna
go and be like, okay – nobody is gonna go –
THE COURT: Why do you even put yourself in
this position? You have this young child who you’re
claiming to me you feel is so important to be able to
take her to school. If that’s true, why – even
regardless of the drugs – why would you put yourself
in a position where you’re even within a mile of a
stolen gun much less the two shotguns in the same
car where your child is?
Id. at 13-14.
After hearing argument from counsel and rendering Appellant’s
sentence,5 the trial court stated its reasons for the sentence.
Here’s the bottom line. I have revoked [Appellant’s]
parole and probation in each case. Because of the
dangerousness of the offenses for which [Appellant
has] been convicted – whether [he] did it out of a
desire not to snitch on other people or if this was of
[his] own making – [he] pled guilty and w[as]
sentenced on extremely serious offenses.
The fact that at least one of the guns was
stolen, two other guns were in close proximity to
[Appellant] and [his] infant child, [he] had enough
heroin on [him] that it was regarded as a PWI case,
and again, apparently, based on [Appellant’s] guilty
plea, [he] did not contest these facts, all compound
the gravity of violating [Appellant’s] parole and
probation on the original sentences which again were
for Possession with Intent to Deliver Heroin. Based
upon that, I believe – and [Appellant’s attorney] may
ask the clerk to calculate this – but I believe it’s
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5
Noting that a pre-sentence investigation was completed in 2013, Appellant
waived the preparation of another pre-sentence investigation prior to the
October 14, 2014 sentence.
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going to be roughly about a 4-year minimum to 10-
year maximum on top of [Appellant’s other]
sentence. So [Appellant] is looking at 7 to 16.6
Id. at 22-23.
Upon review of the record as a whole, we discern no abuse of
discretion by the trial court. At Appellant’s original sentencing hearing on
February 14, 2013, the trial court explained to Appellant that he would
receive “the longest period … within the county prison … and we’re going to
give you some tools to be able to get over your addiction.” N.T., 2/14/13, at
16. However, the trial court cautioned Appellant that “the opportunity for
you to mess up will be there, such that if you mess up at any point … you
will go to state prison, and you will not be seeing your daughter much less
holding her unless through a glass window.” Id. Despite this, Appellant
subsequently and admittedly committed numerous violations, including the
commission of drug and firearms crimes. The trial court, in revoking
Appellant’s parole and probation, acted in accord with prevailing law, supra,
including Section 9771, such that Appellant’s claim that his sentence is
“excessive” and “disproportionate to his conduct” is without merit.
Based on the foregoing, we conclude the trial court did not abuse its
discretion in imposing Appellant’s sentence following revocation.
Accordingly, we affirm the October 14, 2014 judgment of sentence.
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6
Appellant’s counsel clarified that “Actually Judge, it’s going to be … he’s
going to have a 7 to 18-year sentence.”
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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