J-S62005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERNEST RICARDO DIXON,
Appellant No. 1843 WDA 2014
Appeal from the Judgment of Sentence October 9, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0010816-2011
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 09, 2015
Appellant, Ernest Ricardo Dixon,1 appeals from the judgment of
sentence imposed following the second revocation of his probation. He
claims the sentencing court failed to consider his rehabilitative needs, and
the sentence was excessive. He also claims the denial of thirty-five days’
credit for time served resulted in an illegal sentence. We affirm the
judgment of sentence as to Appellant’s claim of excessiveness. However, we
remand to the trial court for a hearing on Appellant’s claim to credit for time
served.
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*
Retired Senior Judge assigned to the Superior Court.
1
Appellant’s surname is alternatively spelled “Dixson” in the record before
us, including in his own brief.
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The charges underlying each of the violations of probation arose out of
Appellant’s repeated assaults on his paramour, Shakiya Starkey, and the
endangerment of their two infant children.2 In the original assault, Appellant
grabbed Ms. Starkey by her hair, struck her multiple times, and strangled
her until it appeared she was about to pass out. He also told their infant
daughter that he was going to shoot her mommy, and that she was going to
die today, although in fact he did not follow through. (See Affidavit of
Probable Cause, 8/25/11, at 1-3).
In the charge at issue, Appellant entered a negotiated guilty plea to
simple assault, in exchange for the nolle prossing of the numerous other
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2
Specifically, Appellant was charged by Criminal Information filed on
October 14, 2011 with the following offenses that occurred on August 25,
2011: Count 1–Aggravated Assault, Serious Bodily Injury (18 Pa.C.S.A. §
2702(a)(1)); Counts 2 & 3–Endangering the Welfare of Children (18
Pa.C.S.A. § 4304); Count 4–Terroristic Threats (18 Pa.C.S.A. § 2706(a)(1));
Count 5–False Imprisonment (18 Pa.C.S.A. § 2903); and, Count 6–
Recklessly Endangering Another Person (18 Pa.C.S.A. § 2705). On
November 3, he entered a negotiated guilty plea to the amended Count 1 of
Simple Assault (18 Pa.C.S.A. § 2701(a)(1)) as well as to Counts 4, 5, and 6
with a term of probation to be set by the court, conditioned on no contact
with the victim, completion of the DACC (Domestic Abuse Counseling
Center) program, and completion of a drug and alcohol evaluation, with
follow-up treatment. In exchange, Counts 2 and 3 were withdrawn. The
trial court accepted the guilty plea, and imposed a sentence of two years’
probation at Count 1. No further penalty was imposed at Counts 4, 5, and
6. On May 10, 2012, the trial court found Appellant violated his probation
by a criminal conviction and it imposed a new term of two years’ probation.
Appellant was once again ordered to have no contact with the victim. (See
generally, Trial Court Opinion, 5/20/15, at 1-2).
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charges against him. (See Trial Ct. Op., at 1-2). He received a sentence of
two years’ probation.3
On October 9, 2014, the trial court revoked Appellant’s probation (for
the second time) based on new criminal convictions and technical violations.
As recommended by the Probation Office, the court sentenced him to a term
of incarceration of one to two years, effective that day, with credit for 256
days’ time served, from December 23, 2013 to September 4, 2014. (See
N.T. Hearing, 10/09/14, at 3-5). Specifically, the trial court noted that
Appellant was in technical violation of probation, because he never reported
to the probation office and failed to comply with any of the conditions of
probation, as confirmed by the Probation Office. (See Trial Ct. Op., at 4;
see also N.T. Hearing, at 2-4).4
Appellant made no contemporaneous objection at sentencing, but
through counsel filed a motion to reconsider sentence on October 16, 2014,
averring that the trial court failed to consider his rehabilitative needs and
that he believed his sentence to be excessive. (See Motion to Reconsider
Sentence, 10/16/14, at 1). The trial court denied the motion. (See Order,
10/22/14).
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3
In related charges, not at issue in this appeal, Appellant was sentenced to
time served. (See id. at 2).
4
At the review hearing, a witness from the probation office confirmed that
Appellant was in complete non-compliance with the requirements of
probation. (See N.T. Hearing, at 2-3).
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This timely appeal followed, on November 7, 2014. After a court-
approved extension, Appellant timely filed a statement of errors on March
31, 2015. See Pa.R.A.P. 1925(b). The trial court filed an opinion on May
20, 2015. See Pa.R.A.P. 1925(a).
Appellant presents two questions for our review on appeal:
I. Was the one to two year sentence of incarceration
imposed manifestly excessive, unreasonable, and an abuse of
discretion where the court did not consider [Appellant’s]
rehabilitative needs or his nature and characteristics?
II. Does [Appellant] currently serve an illegal sentence, as
the [trial] court did not give him full credit for time served?
(Appellant’s Brief, at 5).
Appellant’s first issue challenges the discretionary aspects of his
sentence. This Court has concluded that a challenge to a discretionary
sentencing matter after revocation proceedings is within the scope of its
review. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013). Nevertheless,
“[T]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010); 42 Pa.C.S.
§ 9781(b). Rather, an “[a]ppeal is permitted only after this
Court determines that there is a substantial question that the
sentence was not appropriate under the sentencing code.”
Crump, supra at 1282. In determining whether a substantial
question exists, this Court does not examine the merits of the
sentencing claim. Commonwealth v. Tuladziecki, 513 Pa.
508, 522 A.2d 17 (1987).
In addition, “issues challenging the discretionary aspects of
a sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing
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proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Commonwealth v. Kittrell,
19 A.3d 532, 538 (Pa. Super. 2011). Furthermore, a defendant
is required to preserve the issue in a court-ordered Pa.R.A.P.
1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.
Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012).
Id. at 1042. Similarly,
Such a challenge to the discretionary aspects of a sentence is
not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
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; 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 Appellant’s attack on his
sentence is not an appeal as of right. Rather, he must
petition this Court, in his concise statement of reasons, to
grant consideration of his appeal on the grounds that there
is a substantial question. Finally, if the appeal satisfies
each of these four requirements, we will then proceed to
decide the substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)
(citations omitted); see also Commonwealth v. Kalichak, 943
A.2d 285, 289 (Pa. Super. 2008) (“[W]hen a court revokes
probation and imposes a new sentence, a criminal defendant
needs to preserve challenges to the discretionary aspects of that
new sentence either by objecting during the revocation
sentencing or by filing a post-sentence motion.”).
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015).
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Here, Appellant has filed a motion for reconsideration of sentence, and
a timely appeal. Appellant’s brief contains a Rule 2119(f) concise statement
of reasons. (See Appellant’s Brief, at 6-8). Therefore, he has nominally
complied with the first and third pre-review requirements. See Colon,
supra, at 1042-43.
However, we note that Appellant’s Motion to Reconsider raised only
the failure to consider rehabilitative needs and the claim of an excessive
sentence. (See Motion to Reconsider Sentence, at 1).
Therefore, Appellant has waived any claim to reconsideration based on
issues not timely presented to the trial court. Specifically, he has waived the
claims in his Rule 1925(b) statement that his sentence was contrary to the
Sentencing Code and violated fundamental norms underlying the sentencing
process, failed to consider the principles enunciated at 42 Pa.C.S.A.
§ 9721(b), (Sentencing Generally), and at 42 Pa.C.S.A. § 9781, (Appellate
Review of Sentence).5 (See Concise Statement, 3/31/15, at 2); see also
Colon, supra at 1042-43.6
For the same reason, Appellant has waived the claims in his Rule
2119(f) Statement that the sentencing court acted out of “personal
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5
We observe for clarity and completeness that the principles at section 9781
are guides for our appellate review, and as such cannot form a proper basis
for the assertion of trial court error.
6
Moreover, on independent review, we find no basis for any of these claims.
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frustration, bias and ill-will,” and that he posed a “minimal threat to the
public at large” (presumably as opposed to Ms. Starkey in particular). (Rule
2119(f) Statement, at 2 [see Appellant’s Brief, at 7]).7
Nevertheless, we conclude, as noted by the Commonwealth, that
Appellant’s assertion that the trial court failed to consider his rehabilitative
needs raises a substantial question. (See Commonwealth’s Brief, at 9); see
also Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013),
appeal denied, 86 A.3d 231 (Pa. 2014), (finding, inter alia, assertion that
trial court failed to account for appellant’s rehabilitative needs was
substantial question suitable for review). Accordingly, we will review
Appellant’s first question.
Appellant’s first claim does not merit relief. Our standard of review is
well-settled.
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.
Commonwealth v. Simmons, 56 A.3d 1280, 1283–84 (Pa.
Super. 2012).
In determining whether a sentence is manifestly
excessive, the appellate court must give great weight to the
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7
Moreover, we would find no support in the record for these claims.
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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).
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. 42 Pa.C.S.A.
§ 9771(b). “[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.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super.
2013) (internal quotation marks and citations omitted).
However, 42 Pa.C.S.A. § 9771(c) provides that once probation
has been revoked, a sentence of total confinement may only be
imposed if any of the following conditions exist:
(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.A. § 9771(c).
Colon, supra at 1043-44.
Here, Appellant concedes that he was convicted of new offenses and
that the trial court had the legal authority to impose a sentence of total
confinement. (See Appellant’s Brief, at 14). Furthermore, he admits that
he “made mistakes.” (Id. at 16). Nevertheless, Appellant maintains that
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his “sentence is one of such unreasonableness that fairness demands
remand to the lower court.” (Id. at 19). We disagree.
Appellant’s claim that the trial court did not consider his rehabilitative
needs is belied by the record. The court expressly noted at the hearing that
Appellant was an apparent long time drug user, who had not done anything
to rehabilitate himself, and in fact was in total technical non-compliance with
the terms of probation. (See N.T. Hearing, at 4). In context, the essential
implication of the court’s observations is that Appellant had failed to pursue
his rehabilitative needs while on probation by his total lack of compliance
with the terms of probation, and by his re-offending, against the same
victim, when released from incarceration.
Furthermore, Appellant offers no pertinent authority in support of his
claims. The caselaw he cites stands only for general principles, not in
dispute on this appeal. Instead of specific caselaw, Appellant presents a
largely self-serving, fact-oriented narrative, by which he concludes, without
properly developing an argument or the support of pertinent authority, that
his sentence was the product of the judge’s personal frustration with him.
(See Appellant’s Brief, at 15).
He suggests, again without pertinent argument or authority, that even
though he was a repeat violator, and totally non-compliant with the
conditions of probation, he was taking steps to improve himself, and that he
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should receive yet another term of probation.8 (See id. at 16-18).
Appellant fails to develop an argument that supports his assertions, or
shows an abuse of discretion.
In particular, Appellant’s attribution of personal frustration to the
sentencing judge as the motivation for her sentence is sheer unsupported,
self-serving speculation, which lacks any foundation in the record. On
independent review, we discern no basis on which to disturb the discretion of
the trial court. Appellant’s first claim fails.
In his second claim, Appellant argues that the trial court did not give
him full credit for time served. (See id. at 19-21). He maintains that he
should receive an additional credit for thirty-five days of time served, from
September 4, 2014 to October 9, 2014. (See id. at 20). At sentencing, the
trial court granted credit for time served but only until September 4, 2014,
“because that’s when something happened, but I don’t know what.” (N.T.
Hearing, at 5). Appellant, too, professes ignorance for the basis of the
alleged discrepancy. (See Appellant’s Brief, at 20-21).
Accordingly, we remand this case to the trial court for a hearing
limited solely to review of whether Appellant is entitled to additional credit of
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8
Notably, as evidence of his ability to rehabilitate himself on probation,
Appellant cites the class he took while incarcerated. (See Appellant’s Brief,
at 15).
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thirty-five days for time served during the interval at issue, September 4,
2014 to October 9, 2014.
Judgment of sentence affirmed. Case remanded for hearing on credit
for time served. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2015
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