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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LAWRENCE JUSTIN MORRISON, : No. 2030 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 13, 2014,
in the Court of Common Pleas of Cambria County
Criminal Division at Nos. CP-11-CR-0000225-2013,
CP-11-CR-0000239-2013, CP-11-CR-0000241-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 23, 2015
Lawrence Justin Morrison appeals from the judgment of sentence
entered on November 13, 2014, in the Court of Common Pleas of Cambria
County in the above-captioned matters. Finding no error below, we affirm.
On November 29, 2012, appellant was arrested in connection with
eight burglaries over the span of several months involving multiple victims in
Cambria County. Upon his arrest, appellant was in possession of 5.51 grams
of heroin.
Prior to his November 2012 arrest, appellant faced three unrelated
criminal charges in Somerset County, including one count of possession with
intent to deliver (“PWID”) heroin, one count of criminal trespass, and one
count of receiving stolen property.
* Retired Senior Judge assigned to the Superior Court.
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Bail was set at $10,000 and on January 29, 2013, appellant was
remanded to Cambria County Prison. (Docket #4.) Appellant filed a petition
for bail reduction hearing. On February 28, 2013, appellant’s petition for
bail reduction was denied. Appellant was ordered to undergo drug and
alcohol evaluation. (Docket #5.) On April 2, 2013, appellant pled guilty to
the three Somerset County charges.1 On June 26, 2013, appellant was
transported from Cambria County Prison to Peniel Residential Drug and
Alcohol Treatment Center to attend an interview. (Docket #12.) On
July 16, 2013, appellant was voluntarily transferred from Cambria County
Prison to Peniel. The treatment order specifically stated that appellant “must
remain at Peniel until he successfully completes the program . . . If he
leaves the program, he will be considered a fugitive and escapee and
immediately be placed in the Cambria County Prison.” (Order, 7/15/13 at 1;
Docket #13.)
On October 22, 2013, appellant pled guilty in the Cambria County
cases to one count of PWID (drug trafficking case docketed at CP-11-CR-
0000239-2013, hereinafter “Case No. 239-2013”), three counts of burglary,
two counts of criminal trespass, two counts of theft by unlawful taking, and
one count of criminal conspiracy. At the plea hearing, appellant requested a
continuance of his sentencing in all cases so that he could remain at Peniel
1
The Somerset County cases were then consolidated with the Cambria
County cases.
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and continue his drug rehabilitation treatment. At that point, he had been at
Peniel for approximately three months. The trial court granted his request.
The following exchange between the trial court and appellant took place:
THE COURT: Okay. First a question. I took
the plea in the previous cases, and obviously I took
the plea in these cases. How did he get to Peniel
without my order?
DEFENSE ATTORNEY: Your Honor, in the
interim time period, he, obviously these offenses
occurred unfortunately, and a bond hearing was set
before another judge, and he was sent to Peniel as a
condition of bond rather than the usual method,
which was and which is basically, as I understand it,
the requirement is the person, that my client enter a
guilty plea, and then goes to Peniel in order to prove
to the court or have the chance to prove to the Court
that they, you know, to basically develop a record of
treatment at Peniel in order to obtain that advantage
of consideration for them at sentencing. There
somehow was a miscommunication where other
judge sent him as a condition of bond.
....
DEFENSE COUNSEL: . . . he’s doing very well
there, and . . . they do want to keep him there and
hope that he remains there and completes their
program, and that had been confirmed previously
. . . at the time we started negotiating this plea.
....
THE COURT: . . . somehow you were lucky
enough to get into Peniel, and I also have an
obligation to society here, and if we can get you off
that habit, then for the next presumably for the next
40 to 50 years, we don’t have to worry about crimes
like this. So, I’m at cross purposes here. I want you
to be rehabilitated, but on the other hand, and in
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addition, you’ve got roughly $50,000 worth of
restitution that you’re going to be responsible for.
So I want these victims to be paid. At this
juncture, I have two choices. I either sentence you
to a sentence that I think is appropriate, which
would be a long sentence or I give you a chance at
Peniel and see what happens.
....
THE COURT: . . . I’ll grant your request for
the continuance of both of these sentences. We’ll
see what you get at Peniel, see how you did at
Peniel, and then I’ll sentence you accordingly. I may
give you credit for the time in Peniel or I may not. It
depends on what happens. That ball is in your court.
But I want you to know there’s no promises here.
I’m going to let you go to Peniel, and we’ll see how
you do, and then we’re going to revisit things for
your resentencing. Do you understand that?
THE DEFENDANT: Yes, sir.
Guilty plea transcript, 10/22/13 at 13-15.
On January 23, 2014, appellant was unsuccessfully discharged from
Peniel because he threatened to stab another resident in the neck with a
screwdriver. (Sentencing transcript, 2/7/14 at 5.)
On February 7, 2014, the trial court sentenced appellant as to all cases
from Somerset and Cambria Counties. Appellant received an overall state
sentence of 6 years to 12 years,2 with Recidivism Risk Reduction Incentive
(“RRRI”) Program3 eligibility, and credit for time served at Cambria County
2
Appellant was sentenced to 3 to 6 years in Case No. 239-2013.
3
42 Pa.C.S.A. § 5303.
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Prison, but not at Peniel. Appellant was also ordered to pay $53,771 in
restitution to his victims.
Appellant filed a pro se petition for post-conviction collateral relief
asserting ineffective assistance of counsel and arguing that his sentence was
unconstitutional and illegal, pursuant to Alleyne v. United States, U.S.
, 133 S.Ct. 2151 (2013) (holding that facts that increase mandatory
minimum sentences must be submitted to the jury and must be found
beyond a reasonable doubt); and Commonwealth v. Cardwell, 105 A.3d
748, 751 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015)
(applying Alleyne and recognizing that the mandatory minimum sentences
associated with the weight of narcotics possessed by a drug dealer pursuant
to 18 Pa.C.S.A. § 7508 are unconstitutional). The trial court appointed PCRA
counsel, and a hearing was held on October 13, 2014, relative to the
amended PCRA petition. A re-sentencing hearing was held on November 12,
2014. The Commonwealth conceded that appellant received an illegal
3-year minimum sentence in Case No. 239-2013. That sentence was
vacated and the trial court considered the parties’ arguments for
re-sentencing.
Appellant requested a mitigated sentence and for all counts to run
concurrently due to the following factors: the court’s comment at the PCRA
hearing that “it had hope for” appellant; drug addiction is a terrible disease;
appellant is a young man and has a child; appellant completed the victim
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awareness program at prison; favorable correspondence from appellant’s
pastor; appellant is participating in the GED program at prison; appellant’s
strong family support; and appellant had no prison violations.
(Re-sentencing hearing transcript, 11/12/14, at 2-4.) Appellant also
requested credit towards his sentence for the approximately 6 months he
spent at Peniel (from July 16, 2013, to January 23, 2014).
The Commonwealth, in response, requested an increased sentence of
10 to 20 years, followed by a long probationary period. The Commonwealth
reintroduced one victim statement; noted that appellant’s prior record score
was actually 5 (not 4 as previously determined at the February 7, 2014,
sentencing hearing); and criticized appellant’s dishonesty at the PCRA
hearing relative to promises his defense counsel supposedly made to him
regarding his sentence. (Id. at 7, 11-12.)
Following the arguments of counsel, the trial court re-sentenced
appellant at Case No. 239-2013 outside of the standard range to an
aggravated sentence of state imprisonment of 3-6 years, with RRRI
eligibility, and credit for time served in prison, but not in Peniel. Relative to
all other counts, the trial court ordered that the sentences imposed on
February 7, 2014, were to remain the same. In imposing this sentence, the
trial court acknowledged that appellant’s standard range, relative to Case
No. 239-2013, was 18 months to 24 months and the aggravated range was
36 months. The trial court declined to adopt a higher prior record score of 5
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on the grounds that the Commonwealth should have questioned any
inaccuracy at the February 7, 2014 sentencing hearing. Further, the trial
court deemed all of the factors set forth by the Commonwealth as
aggravating factors. Overall, that resulted in a 6 to 12-year total sentence
with RRRI eligibility.
On appeal, appellant raises two issues:
1. Whether the Trial Court erred in not giving the
Appellant credit for the approximately
6 months spent in Peniel (an in-patient drug
rehabilitation facility)?
2. Whether the Trial Court erred in not sentencing
the Appellant to the case docketed at
239-2013 in a mitigated range at the low end
of the Sentencing Guidelines, by failing to
consider a number of mitigating factors,
including, but not limited to his young age, his
family and spiritual support, the progress for
self-development he made while incarcerated,
and his sincere remorsefulness for his crimes?
Appellant’s brief at 4.
First, appellant argues that the trial court erred when it denied him six
months’ credit for his time spent at Peniel. We disagree.
Generally, it is within the trial court’s discretion whether to credit time
spent in an institutionalized rehabilitation and treatment program as time
served “in custody.” Commonwealth v. Conahan, 589 A.2d 1107 (Pa.
1991), Commonwealth v. Mincone, 592 A.2d 1375 (Pa.Super. 1991)
(en banc).
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In Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super. 2007), this
court upheld the trial court’s refusal to reward a defendant’s actions with
credit for time served where the defendant failed to successfully complete
inpatient drug treatment. In that case, the defendant pled guilty to various
drug charges and requested the opportunity to participate in the Erie County
Drug Court. His participation in the Drug Court Program was voluntary. He
signed an agreement which demonstrated that he understood the
consequences of failing to adhere to the program requirements:
I understand that if I am dismissed from the drug
court program prior to satisfactory completion, my
case will be listed for trial in the next term of
criminal court and I will have to take my case to trial
or enter a plea as if I had never been a participant in
the drug court program.
Id. at 597.
As it turned out, defendant failed to attend treatment as directed. He
failed to abstain from the possession and consumption of alcohol, failed to
abstain from the possession and consumption of controlled substances, and
failed to submit urine samples as directed. Id. at 589 n.5. Because the
defendant misused and abused the many opportunities for rehabilitation
without incarceration, we held that the court’s decision to refuse credit for
time served at the Drug Court Program was entirely within its purview.
Here, as in Fowler, appellant requested the opportunity to voluntarily
enter Peniel to resolve his drug addiction prior to sentencing. The trial court
made no promises to appellant and very candidly explained to appellant that
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credit for time in Peniel would depend on his progress and successful
completion of the program. As noted, appellant clearly understood the
consequences of failing to adhere to the program’s requirements. Appellant
was unsuccessfully expelled from the program when he threatened another
participant. The trial court explained its rationale for denying credit:
[T]he opportunity to participate in the Peniel
program is a privilege. Requests for admission far
exceed the available bed space. Accordingly, when
an applicant qualifies and the Court grants a request
for admission, that applicant is prioritized over other
applicants. The only possible way to maintain
continuity and fairness is to reward those who
successfully complete the program and withhold
reward from those who fail. This Court has never
given credit for time served at Peniel to those who
have been unsuccessfully discharged from the
program. Any other policy by the Court would result
in manifest unfairness and inequality.
Trial court opinion, 12/11/14 at 5.
Appellant argues that his expulsion should not nullify the six months of
“good time” he spent at Peniel. He claims that Peniel is a very restrictive,
custodial environment, and that the time he spent there was served in lieu
of incarceration at the Cambria County Prison. (Appellant’s brief at 8 and
11.) He relies on Commonwealth v. Frye, 853 A.2d 1062 (Pa.Super.
2004). Appellant argues that even though the defendant in Frye violated
the terms of her probation, she received credit on her sentence for time
spent “in custody” on house arrest. Appellant contends that likewise, even
though he did not successfully complete the Peniel program, he nevertheless
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should be given credit for the six months of “good time” he spent there
before he was expelled.
We find Frye is distinguishable. The Frye court did not consider the
issue of whether the defendant forfeited her right to receive credit by failing
to successfully complete a voluntary pre-sentencing drug rehabilitation
program.4
Here, appellant could not make bail. He was originally transferred
from Cambria County Prison to Peniel voluntarily while awaiting trial and/or
a plea. At the October 22, 2013, plea hearing, appellant pled guilty to the
Cambria County charges. He had already pled guilty to the Somerset
County charges. He was slated for prison. However, he asked the trial court
for mercy, to postpone his sentencing so that he could remain at Peniel to
overcome his heroin addiction, and to have the chance to prove to the
sentencing court that he voluntarily received treatment. As his counsel
explained during the guilty plea hearing on October 22, 2013, attending
Peniel was an opportunity for appellant to obtain “an advantage or
consideration” of his treatment at sentencing. (Guilty plea hearing,
4
As appellant notes, the issue in Frye was whether the terms of the
defendant’s house arrest were sufficiently restrictive to count as custody
time. The court did not address whether the defendant forfeited credit for
the “good time” time she spent on house arrest in light of her probation
violation. In any event, Frye has been abrogated by Commonwealth v.
Kyle, 874 A.2d 12 (Pa. 2005), which precludes a defendant from receiving
credit for the time spent under house arrest. Here, whether Peniel was
sufficiently “prison-like” under Conahan was not an issue that was raised by
the parties nor addressed by the trial court.
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10/22/13 at 12.) Appellant’s attendance at Peniel was a privilege, not a
sentence. Fowler clearly gives the trial court discretion to decide whether
time spent completing this type of program should be credited towards a
sentence. The trial court clearly indicated to appellant in advance that it
would consider crediting the time spent at Peniel if appellant successfully
completed the program.
The trial court did not abuse its discretion when it refused to credit
appellant for the time spent at Peniel due to his unsuccessful discharge from
the program. We wholly agree with the trial court that credit for a voluntary
inpatient drug treatment should be commensurate with successful
completion of inpatient treatment. Appellant’s expulsion from the program
was tantamount to his not participating at all. The trial court acted well
within its discretion in denying credit for time served under the facts of this
case.
In his second issue, appellant asserts that the trial court imposed a
sentence at Case No. 239-2013 in the aggravated range without considering
mitigating circumstances. Specifically, he contends that the trial court failed
to consider his young age, his family and spiritual support, the progress for
self-development he made while incarcerated, and his sincere
remorsefulness for his crimes.
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Appellant’s claim challenges the discretionary aspects of his sentence.
Commonwealth v. Hyland, 875 A.2d 1175 (Pa.Super. 2005), appeal
denied, 890 A.2d 1057 (Pa. 2005).
A challenge to the discretionary aspects of a
sentence must be considered a petition for
permission to appeal, as the right to pursue such a
claim is not absolute. Two requirements must be
met before we will review this challenge on its
merits. First, an appellant must set forth in his brief
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of a sentence. Second, the appellant must
show that there is a substantial question that the
sentence imposed is not appropriate under the
Sentencing Code. The determination of whether a
particular issue raises a substantial question is to be
evaluated on a case-by-case basis. In order to
establish a substantial question, the appellant must
show actions by the trial court inconsistent with the
Sentencing Code or contrary to the fundamental
norms underlying the sentencing process.
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004) (internal
citations omitted).
Appellant’s brief contains the requisite Rule 2119(f) concise statement
and, as such, is in technical compliance with the requirements to challenge
the discretionary aspects of a sentence. (See appellant’s brief at 7.)
Therefore, we proceed to determine whether appellant has presented a
substantial question that the sentence appealed from is not appropriate
under the Sentencing Code. See McAfee, 849 A.2d at 274.
A substantial question is raised where an appellant alleges the
sentencing court erred by imposing an aggravated range sentence without
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consideration of mitigating circumstances. Commonwealth v. Felmlee,
828 A.2d 1105 (Pa.Super. 2003) (en banc); Hyland, supra.
As presented, appellant appears to raise a substantial question as to
the discretionary aspects of his sentence. See id. Thus, we will review his
claim.
“If the sentence is within the aggravated range, the sentencing court is
. . . required to state its reasons for choosing an aggravated sentence on
. . . the record. . . .” Commonwealth v. Rodda, 723 A.2d 212, 217
(Pa.Super. 1999) (en banc). In addition, “the sentencing guidelines are
advisory, and when justified, a court acts well within its discretion to
sentence outside the recommended ranges.” Commonwealth v. P.L.S.,
894 A.2d 120, 128 (Pa.Super. 2006).
[I]n exercising its discretion, the sentencing court
may deviate from the guidelines, if necessary, to
fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of
the defendant, and the gravity of the particular
offenses as it relates to the impact on the life of the
victim and the community, so long as he also states
of record the factual basis and specific reasons which
compelled him to deviate from the guideline range.
The sentencing guidelines are merely advisory and
the sentencing court may sentence a defendant
outside of the guidelines so long as it places its
reasons for the deviation on the record.
Id. at 130–131 (citation omitted).
Instantly, the trial court thoroughly considered the totality of
requirements mandated by Pennsylvania law including consideration of the
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substantial amount of restitution at issue, the need to ensure the safety of
the community, the input of the victims, the protection of the public, and the
serious nature of the crimes. (Trial court opinion, 12/11/14 at 7.) We
further observe that the trial court was intimately familiar with appellant’s
personal circumstances as it had handled appellant’s juvenile caseload for
numerous years. The trial court reviewed the pre-sentence investigation
report 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).
The trial court acknowledged appellant’s expression of remorse for his
actions, but found that appellant’s circumstances called for the sentences
imposed. Moreover, the trial court noted that it gave appellant the benefit
of the doubt by utilizing a prior record score of 4 instead of adopting the
Commonwealth’s argument that the guidelines be calculated with a prior
record score of 5. The trial court also noted that it very well could have
imposed consecutive sentences in the low end of the standard ranges
relative to all 12 counts, and appellant could have received an overall
sentence of 10½ to 21 years, instead of the 6 to 12-year sentence he
received.
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Based on all of the foregoing, we are satisfied that the sentencing
court sufficiently stated its reasons for the sentences imposed and
adequately articulated the aggravating circumstances justifying a departure
from the recommended sentencing guidelines and the sentence in the
aggravated range of the guidelines. We therefore find no abuse of discretion
in the sentence imposed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
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