J-S10005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS VIERECK
Appellant No. 656 EDA 2015
Appeal from the Judgment of Sentence February 5, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004891-2012;
CP-51-CR-0014314-2010
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 08, 2016
Appellant, Thomas Viereck, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following
revocation of his probation. We affirm.
The trial court set forth the relevant facts and procedural history of
this case as follows:
On January 3, 2011, Appellant pled guilty to Aggravated
Assault and Possession of an Instrument of Crime (PIC)
before the [c]ourt and was sentenced to four to twenty-
three months[’] confinement followed by three years of
probation.[1] On February 16, 2011, a motion for parole
was filed and on March 14, 2011, the motion was granted.
Subsequently, Appellant left the jurisdiction and a warrant
for his arrest was issued. At the July 15, 2011 hearing,
Appellant’s parole was revoked and he was re-sentenced
to four to twenty-three months[’] confinement followed by
three years of probation to run concurrently on both
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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convictions and he was ordered to be supervised under the
Mental Health Unit. On October 11, 2012, Appellant pled
guilty to Assault by Prisoner[2] before the [c]ourt and was
sentenced to eleven and one half to twenty-three
months[’] incarceration followed by two years of probation.
At the hearing, Appellant was also found in direct violation
of probation on his original case and was sentenced to
eleven and one half to twenty-three months[’] confinement
followed by two years of probation to run concurrently with
credit for time served on both convictions and was
immediately paroled to a treatment facility. He was also
formally entered into Mental Health Court (MHC). As is the
procedure in MHC, Appellant was scheduled for status of
mental health and treatment hearings at regular intervals
to monitor his compliance and progress.
1
18 Pa.C.S.[A.] § 2702(a), 18 Pa.C.S.[A.] § 907(a);
the first conviction was graded as [an] F2 and the
second as [an] M1.
2
18 Pa.C.S.[A.] § 2703(a); the conviction was
graded as an F2.
At the June 27, 2013 hearing, it was reported that on May
25, 2013, Appellant absconded from his treatment
program at Girard Medical Center and was arrested for
absconding on June 7, 2013. The [c]ourt ordered the
detainer to remain and the case was continued. At the
July 18, 2013 hearing, Appellant’s probation was revoked
on both cases and he was sentenced to eleven and one
half to twenty-three months[’] confinement to run
concurrently with credit for time served followed by three
years of probation on each conviction. On February 19,
2014, Appellant was transported to yet another treatment
facility, Gaudenzia New Beginnings. At the June 10, 2014
hearing, it was reported that Appellant absconded from his
treatment program on April 12, 2014, a mental health
evaluation was ordered and the case was continued
pending the outcome of the evaluation. At the July 10,
2014 hearing, Appellant was found to be competent per
the report, but the hearing was continued to allow time to
determine if additional placements were available. From
July 31, 2014 to September 25, 2014, three hearings were
continued pending the results of [an] FIR evaluation. On
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October 30, 2014, a violation of probation hearing was
conducted and Appellant was found to be in technical
violation for absconding from the program. Appellant’s
probation was revoked on both cases and he was
sentenced to eleven and one half to twenty-three
months[’] confinement with credit for time served followed
by eight years of probation on the Aggravated Assault and
Assault by Prisoner convictions[,] and was sentenced to
five years of probation to run concurrently on the PIC
conviction. He was immediately paroled to yet another
treatment facility, Gaudenzia Together House. At the
December 11, 2014 hearing, Appellant failed to appear and
it was reported that he once again absconded from his
program on November 27, 2014. At the December 23,
2014 hearing, the [c]ourt ordered a forthwith mental
health evaluation for the purposes of determining a
diagnosis, a treatment plan and whether Appellant was
competent. At the January 8, 2015 hearing, it was
reported that…Appellant was competent, but the case was
continued. On February 5, 2015, after a violation hearing,
Appellant’s probation was revoked on both cases and he
was sentenced to [terms of] four [(4)] to ten [(10)]
year[s’] confinement on the Aggravated Assault and
Assault by Prisoner convictions to run concurrently with
credit for time served.[1] On February 17, 2015, Appellant
filed a motion to reconsider sentence and it was denied on
February 20, 2015.
(Trial Court Opinion, filed May 8, 2015, at 1-3). Appellant filed a timely
notice of appeal on March 6, 2015. On March 26, 2015, the court ordered
Appellant to file a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(b). The court entered a new order on April 20, 2015,
extending the time for Appellant to file a Rule 1925(b) statement until April
24, 2015. Appellant timely filed a Rule 1925(b) statement that same day.
____________________________________________
1
The court imposed no further penalty for Appellant’s PIC conviction.
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Appellant presents the following issues for our review:
DID THE [TRIAL] COURT VIOLATE THE TENETS OF THE
SENTENCING CODE, WHICH MANDATE INDIVIDUALIZED
SENTENCING, AND IMPOSE AN EXCESSIVE SENTENCE OF
FOUR TO TEN YEARS[’] TOTAL CONFINEMENT FOR A
TECHNICAL VIOLATION OF PROBATION?
BECAUSE OF PRIOR SENTENCES IMPOSED ON THE SAME
INFORMATIONS, DID NOT THE [TRIAL] COURT IMPOSE[] A
MAXIMUM SENTENCE—TEN YEARS—THAT EXCEEDS THE
STATUTORY MAXIMUM—TEN YEARS?
(Appellant’s Brief at 3).
In his first issue, Appellant argues the court failed to impose an
individualized sentence with consideration of all relevant sentencing factors.
Appellant contends the court failed to order a pre-sentence investigation
(“PSI”) report and to consider Appellant’s rehabilitative needs in light of his
history of mental health and substance abuse issues. Appellant asserts the
court’s sentencing decision was based on nothing more than Appellant’s
repeated technical violations of parole and probation. Appellant concludes
his revocation sentence was excessive, and this Court should vacate his
judgment of sentence and remand for resentencing. Appellant’s challenge is
to the discretionary aspects of his sentence. See Commonwealth v.
Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013) (stating claim that sentencing
court erred when it imposed sentence without ordering PSI report challenges
discretionary aspects of sentence); Commonwealth v. Lutes, 793 A.2d
949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive
challenges discretionary aspects of sentencing); Commonwealth v. Cruz-
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Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676
A.2d 1195 (1996) (stating claim that court did not consider certain
mitigating factors challenges discretionary aspects of sentencing).
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)
(en banc) (explaining appellate review of revocation sentence includes
discretionary sentencing challenges). Challenges to the discretionary
aspects of sentencing do not entitle an appellant to an appeal as of right.
Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). When
appealing the discretionary aspects of a sentence, an appellant must invoke
the appellate court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). A substantial question
exists “only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Sierra, supra at 913.
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
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sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. Bald allegations of excessiveness, however, do not raise a substantial
question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,
a substantial question exists “only where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process….” Id. See, e.g., Carrillo-Diaz, supra (stating defendant’s
contention that court failed to order PSI report, or alternatively to give
reason on record for not ordering report, presented substantial question);
Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super. 2006) (stating
defendant raised substantial question with respect to claim that revocation
sentence was excessive in light of underlying technical probation violations).
An allegation that the sentencing court failed to consider a specific mitigating
factor, however, generally does not raise a substantial question.
Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (holding claim
that sentencing court ignored appellant’s rehabilitative needs failed to raise
substantial question).
“In general, 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. Hoover, 909 A.2d 321 (Pa.Super. 2006). Following the
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revocation of probation, the court may impose a sentence of total
confinement if any of the following conditions exist: the defendant has been
convicted of another crime; the conduct of the defendant indicates it is likely
he will commit another crime if he is not imprisoned; or, such a sentence is
essential to vindicate the authority of the court. See 42 Pa.C.S.A. §
9771(c). The Sentencing Guidelines do not apply to sentences imposed
following a revocation of probation. Commonwealth v. Ferguson, 893
A.2d 735 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196
(2006). “[U]pon sentencing following a 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.
Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).
Pursuant to Section 9721(b), “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.A. § 9721(b). “[T]he
court shall make as 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.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence….”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal
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denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole
must reflect the sentencing court’s consideration of the facts of the crime
and character of the offender.” Id. See also Carrillo-Diaz, supra
(explaining where revocation court presided over defendant’s no-contest
plea hearing and original sentencing, as well as his probation revocation
hearing and sentencing, court had sufficient information to evaluate
circumstances of offense and character of defendant when sentencing
following revocation).
Instantly, to the extent Appellant complains the court did not
adequately consider specific mitigating factors, such as Appellant’s mental
health issues, substance abuse, and rehabilitative needs, this allegation fails
to raise a substantial question. See Berry, supra. Nevertheless,
Appellant’s claim that his sentence was excessive in light of his technical
violations of probation does present a substantial question warranting
review. See Malovich, supra. To the extent Appellant argues the court
failed to order a PSI report without explanation, that claim also raises a
substantial question. See Carrillo-Diaz, supra.
At sentencing, the court provided the following rationale for the
revocation sentence imposed:
[J]ust the need to really emphasize the number of
opportunities that you’ve been given in this program,
particularly for an individual. You did wait quite a long
time for a program. And as that individual who waits for a
long period, that I truly expect will take full advantage of
the opportunities of the services of their resources. But
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what I don’t expect is that you will leave and you did that
time and time again.
Yeah, there may have been a couple of times when you
were on target, but generally speaking, four previous
violations hearings, this is the fifth. I asked for one case.
Certainly, there are opportunities where I could have sent
you to the state sooner, yet I continued to give you
chances to want to work with you. And, again, by your
actions, you’ve indicated that you don’t want the services.
And, consequently, I think services will be better provided
for you in a state facility.
So in order to vindicate the authority of this [c]ourt, the
fact that this is the fifth violation on one case and the third
violation, I think, on the other matter—you have been
given other sanctions. I think, previously in this program,
you failed to appear in this [c]ourt, but I will not do a
separate contempt hearing for that. I will incorporate all
that into one sentence—so as to each of these cases
today, where I found you to be in violation, I will sentence
you to 4 to 10 years of incarceration.
(N.T. Sentencing, 2/5/15, at 15-16). In its Rule 1925(a) opinion, the court
further stated:
The [c]ourt sentenced Appellant to four to ten years[’]
incarceration to run concurrently with credit for time
served, which was far shorter than the possible 25 years[’]
incarceration to which…Appellant was exposed.
Furthermore, the evidence at the revocation hearing
showed that Appellant absconded from the Gaudenzia
program on November 27, 2014 and…Appellant failed to
appear at the December 11, 2014 hearing[,] which
resulted in a bench warrant. Appellant’s probation [o]fficer
also reported that Appellant had four prior violations of
probation on his first case and two prior violations on his
second case. The [c]ourt noted that Appellant was given
numerous opportunities to avail himself of the services
provided while under the supervision of Mental Health
Court, but chose not to participate. In total, Appellant
absconded from three different treatment facilities while
under the [c]ourt’s supervision. Therefore, considering
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that the sentence was far less than the maximum penalty
available,… Appellant’s history of non-compliance with
conditions of his supervision and the [c]ourt’s
consideration of…Appellant’s lack of interest in the services
provided for his rehabilitative needs, the sentence was not
unreasonable.
* * *
Finally, the [c]ourt complied with Pa.R.Crim.P. 702, which
requires that a court order a PSI or state on the record its
reasons for not ordering one. …
Here, Appellant had been under the [c]ourt’s supervision
since January 3, 2011 and has been enrolled in MHC since
October 11, 2012. As part of MHC, Appellant was subject
to regular status hearings where reports concerning his
progress in treatment were provided. Furthermore, the
[c]ourt was in possession of mental health evaluations
conducted on June 30, 2014 and December 31, 2014 as
well as 19 reports from Appellant’s probation officer dating
back to June[] 2011. This information enabled the [c]ourt
to make a determination of the circumstances of
Appellant’s offense and character, and give individualized
consideration to Appellant’s needs at sentencing.
Therefore, the [c]ourt had sufficient information to
substitute for the PSI when fashioning an individualized
sentence for Appellant.
(Trial Court Opinion at 4-6). We see no reason to disturb the revocation
court’s sentencing decision on the grounds stated. The court also presided
over Appellant’s guilty plea hearings, original sentencing, and previous
resentencing hearings. The court supervised Appellant in MHC and was
aware of Appellant’s individual needs and circumstances, which obviated the
need for a PSI report. The court repeatedly gave Appellant opportunities to
take advantage of rehabilitative services and avoid incarceration. Appellant,
however, repeatedly rejected those opportunities and failed to comply with
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the terms of his probation or parole. The record as a whole makes clear the
court was aware of and considered the relevant sentencing factors, and the
sentence imposed was not excessive. See Carrillo-Diaz, supra; Crump,
supra. Therefore, Appellant is not entitled to relief on his discretionary
aspects of sentencing claim. See Hoover, supra.
In his second issue, Appellant argues his concurrent sentences for the
aggravated assault and assault by prisoner convictions exceed the statutory
maximum of ten years applicable to each of those offenses. Appellant
contends the ten-year term of incarceration he received for each conviction
rises above the statutory maximum when combined with the time he spent
incarcerated for previous parole or probation violations on the same
offenses. Appellant concludes the court imposed an unlawful sentence. We
disagree.
The issue of whether a sentence is illegal is a question of law and our
scope of review is plenary. Crump, supra. An illegal sentence is subject to
correction and must be vacated. Commonwealth v. Watson, 945 A.2d
174, 178-79 (Pa.Super. 2008). Assuming proper jurisdiction, the legality of
a sentence is a non-waivable claim, and this Court can raise the issue sua
sponte. Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001).
When determining the lawful maximum allowable on a split
sentence, the time originally imposed cannot exceed the
statutory maximum. Thus, where the maximum is ten
years, a defendant cannot receive a term of incarceration
of three to six years followed by five years[’] probation.
However, in a situation where probation is revoked on a
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split sentence, …a defendant is not entitled to credit for
time spent on probation. Nor is a defendant automatically
granted credit for time served while incarcerated on the
original sentence unless the court imposes a new sentence
that would result in the defendant serving time in prison in
excess of the statutory maximum.
Crump, supra at 1283-85 (internal citations omitted). Upon revocation of
probation, “the sentencing alternatives available to the court shall be the
same as were available at the time of initial sentencing, due consideration
being given to the time spent serving the order of probation.” 42 Pa.C.S.A.
§ 9771(b). “As long as the new sentence imposed does not exceed the
statutory maximum when factoring in the incarcerated time already served,
the sentence is not illegal.” Crump, supra at 1285.
Aggravated assault is a felony of the second degree under subsections
(a)(3)-(a)(8) of the aggravated assault statute. See 18 Pa.C.S.A. § 2702(b)
Assault by prisoner is also a second-degree felony. See 18 Pa.C.S.A. §
2703. The statutory maximum term of imprisonment for a second-degree
felony is ten years. See 18 Pa.C.S.A. 106(b)(3).
Instantly, as a preliminary matter, Appellant did not raise his illegal
sentence issue in his Rule 1925(b) statement. See Commonwealth v.
Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (stating any issue not raised in
Rule 1925(b) statement will be deemed waived for appellate review).
Nevertheless, Appellant’s illegal sentence claim is nonwaivable. See
Edrington, supra. Therefore, we will address it on the merits.
Following Appellant’s most recent probation violation, the court
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resentenced Appellant to concurrent terms of four (4) to ten (10) years’
incarceration for his aggravated assault and assault by prisoner convictions.
Appellant previously spent time incarcerated for those offenses. The court,
however, gave Appellant credit for time served while incarcerated.
Additionally, Appellant was not automatically entitled to credit for the time
he spent on parole or probation. See Crump, supra. Both aggravated
assault and assault by prisoner were graded as second-degree felonies.
Factoring in Appellant’s credit for time served, neither of Appellant’s new
sentences exceeded the ten-year statutory maximum applicable to each
offense. See 18 Pa.C.S.A. 106(b)(3). Therefore, Appellant’s sentence is
lawful in its entirety. See Crump, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2016
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