J-S13016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRE RON ARNEZ JACKSON
Appellant No. 597 WDA 2015
Appeal from the Judgment of Sentence entered March 11, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0007336-2014
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 13, 2016
Appellant, Tre Ron Arnez Jackson, appeals from the judgment of
sentence imposed on March 11, 2015 in the Court of Common Pleas of
Allegheny County following revocation of his probation. Following review, we
affirm.
The trial court provided the following factual and procedural
background:
[Appellant] was charged with Rape, Sexual Assault, Aggravated
Indecent Assault and Terroristic Threats.[1] On October 6, 2014,
[Appellant] appeared before this [c]ourt and, pursuant to a plea
agreement with the Commonwealth, the Rape charge was
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 3125(a)(1), and 2706(a)(1).
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amended to an Indecent Assault charge[2] and [Appellant] pled
guilty to that new charge. The remaining charges were
withdrawn. [Appellant] was immediately sentenced to a term of
probation of two (2) years. No Post-Sentence Motions were filed
and no direct appeal was taken.
[Appellant] next appeared before this [c]ourt on November 5,
2014 for a review hearing. At the conclusion of that hearing,
[Appellant] was sentenced to a new term of probation of two (2)
years, [and] ordered to take a denial polygraph. Additionally,
other special conditions were imposed, including a zero tolerance
condition. Again, no post-sentence motions were filed and no
direct appeal was taken.
[Appellant] next appeared before this [c]ourt on March 11, 2015
for a review hearing. At the conclusion of the hearing, upon
determining that [Appellant] had failed to report and to comply
with the special conditions of his probation and that he was also
charged with a new offense, this [c]ourt revoked his probation
and imposed a term of imprisonment of one (1) to two (2) years.
A timely Post-Sentence Motion to Modify Sentence was filed and
was denied on May 18, 2015. This appeal followed.
Trial Court Rule 1925(a) Opinion, 9/22/15, at 1-2 (footnotes omitted).
Appellant and the trial court both complied with Pa.R.A.P. 1925.
Appellant presents two issues for this Court’s consideration:
I. Whether the trial court abused its discretion in sentencing
[Appellant] to the maximum period of total confinement
when none of the required factors pursuant to 42 Pa.C.S.A.
§ 9771(c) was applicable?
II. Whether the trial court abused its sentencing discretion
when it failed to consider relevant sentencing criteria,
including the protection of the public, the gravity of the
underlying offenses and violation, and the character,
personal history, and rehabilitative needs of [Appellant], as
required by 42 Pa.C.S.A. § 9721(b)?
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2
18 Pa.C.S.A. § 3126(a)(1).
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Appellant’s Brief at 5. Appellant’s issues involve the discretionary aspects of
sentencing.3 In Commonwealth v. Allen, 24 A.3d 1058 (Pa. Super. 2011),
this Court stated:
Our review of discretionary aspects of sentencing claims
implicates the following principles:
[T]he proper standard of review when considering whether
to affirm the sentencing courts determination is an abuse
of discretion. . . . [A]n abuse of discretion is more than a
mere error of judgment; thus, a sentencing court will not
have abused its discretion unless the record discloses that
the judgment exercised was manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will. . . . An
abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion,
but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support
so as to be clearly erroneous. . . . The rationale behind
such broad discretion and the concomitantly deferential
standard of appellate review is that the sentencing court is
in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
(2007) (internal citations omitted). Challenges to the
discretionary aspects of sentencing do not entitle an appellant to
review as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa. Super. 2000).
Id. at 1064.
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3
“[T]his Court’s scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). The issue
must have been preserved, however. Id. at 1042. Here, Appellant
preserved the issue in his post-sentence motion and filed a timely notice of
appeal.
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When a challenge to the discretionary aspects of a sentence is raised,
an appellant must provide a separate statement specifying where the
sentence falls in the sentencing guidelines, what provision of the sentencing
code has been violated, what fundamental norm the sentence violates, and
the manner in which it violates the norm. Pa.R.A.P. 2119(f). Appellant has
provided a statement that complies with the requirements of Rule 2119(f).
Appellant’s Brief at 12-17. In his statement, he contends the trial court
ignored 42 Pa.C.S.A. § 9771(c), which imposes limitations on sentences of
total confinement upon revocation of a probation order. Id. In Sierra, this
Court recognized that the 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” and, as such, presents a substantial question. Sierra, 752 A.2d at
913 (citation omitted). See also Commonwealth v. Malovich, 903 A.2d
1247, 1253 (Pa. Super. 2006).
In his Rule 2119(f) statement, Appellant also argues that the trial
court failed to consider relevant sentencing criteria required by 42 Pa.C.S.A.
§ 9721(b), such as protection of the public, gravity of the offense, and
Appellant’s character and rehabilitative needs. Appellant’s Brief at 13-15.
In Commonwealth v. Riggs, 63 A.3d 780 (Pa. Super. 2012), this Court
determined the appellant raised a substantial question by asserting that the
trial court failed to consider the § 9721(b) criteria. Id. at 786.
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We find Appellant has raised a substantial question in each of his two
issues.4 Therefore, we shall consider the merits of his claims.
In his first issue, Appellant argues the trial court abused its discretion
by imposing a sentence of total confinement because none of the § 9771(c)
factors were applicable. 42 Pa.C.S.A. § 9771(c) provides:
Limitation on sentence of total confinement.--The court
shall not impose a sentence of total confinement upon revocation
unless it finds that:
(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.
Although Appellant was charged with an additional crime, he was not
convicted. Consequently, subsection (1) does not apply. Therefore, we turn
to subsections (2) and (3).
At Appellant’s March 11, 2015 revocation hearing, his counsel argued
that Appellant had made mistakes but, as a young man with a one-year-old
daughter, he had reasons to clean up his behavior. Notes of Testimony,
Hearing, 3/11/15, at 4. He noted that Appellant was working for his
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4
The Commonwealth concedes Appellant has raised a substantial question in
each issue. Commonwealth Brief at 6. However, the Commonwealth
disputes Appellant’s contention that the trial court abused its discretion with
respect to either § 9771(c) or § 9721(b). Id. at 6-11.
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grandfather—earning $10 per hour—and anticipated the grandfather would
increase Appellant’s work hours if necessary to keep Appellant out of
trouble. Id.
The trial court responded:
Well, that would be fine except in November, I already had a
hearing, and he did – he was in noncompliance for the exact
same things that he’s in noncompliance for.
So from November on, he was not in compliance in fact, and I
already had the zero tolerance hearing and he was smoking
marijuana then. He’s smoked marijuana since. He was in jail. I
lifted the detainer. He’s failed with treatment. He was arrested
for the charges that were mentioned by the [probation officer].
Although I recognize it was a summary.
He was finally put in jail for testing positive for marijuana
throughout the term of his probation. He has not done any
treatment. He’s continued to use drugs. He hasn’t taken the
polygraph.
Id. at 4-5.
Appellant complains that the trial court failed to address the § 9771(c)
factors specifically and, therefore, the sentence must be vacated. We
disagree. This Court rejected a similar argument in Malovich, announcing:
We also disagree with Appellant’s assertion that the record does
not show a consideration of the sentencing factors under 42
Pa.C.S.A. § 9771(c). The transcript from the sentencing hearing
shows that Appellant was found in possession of marijuana while
on probation. Possessing marijuana is a crime. The record thus
reveals not just that Appellant was likely to commit another
offense, but also that he had in fact done so by illegally
possessing a controlled substance.
....
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Additionally, the tenor of the transcript convinces us that the
sentencing court believed state incarceration was necessary to
vindicate the court’s authority: Appellant had not complied with
previous judicial efforts such as Drug Court, probation and prior
revocations. He had not been putting anything into the court-
imposed rehabilitation efforts. It was important that Appellant
begin to appreciate the seriousness of the situation. The
foregoing comments by the court support total confinement
under 42 Pa.C.S.A. § 9771(c). Appellant was not responding to
the court’s authority; incarceration was necessary.
We understand that the court did not quote from the statute in
question or mention it by citation. However, the record as a
whole reflects the court’s reasons and its consideration of the
code, the circumstances of the offense and the character of the
offender. We are persuaded that the sentencing court
considered the appropriate factors.
Id., 903 A.2d at 1254 (internal quotations and citations to record omitted).
Similarly, the trial court’s statements suggest the likelihood that
Appellant is likely to commit another crime if not imprisoned—and, in fact,
already had in the intervening period between his November 2014 and
March 2015 hearings. Further, Appellant’s disregard for his previous
probationary terms supports a finding that the sentence was essential to
vindicate the authority of the trial court. Therefore, just as in Malovich, we
are persuaded that the sentencing court considered the appropriate factors
and did not abuse its discretion in imposing a sentence of confinement.
Appellant’s first issue fails.
In his second issue, Appellant complains that the trial court abused its
discretion by imposing a sentence without following the general principle
that the confinement should be “consistent with the protection of the public,
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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). We disagree.
Section 9721(b) directs that when imposing a sentence 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.” 42 Pa.C.S.A. § 9721(b). However, as
our Supreme Court has clarified:
At initial sentencing, all of the rules and procedures designed to
inform the court and to cabin its discretionary sentencing
authority properly are involved and play a crucial role. However,
it is a different matter when a defendant reappears before the
court for sentencing proceedings following a violation of the
mercy bestowed upon him in the form of a probationary
sentence. For example, in such a case, contrary to when an
initial sentence is imposed, the Sentencing Guidelines do not
apply, and the revocation court is not cabined by Section
9721(b)’s requirement 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. See
Commonwealth v. Reaves, 592 Pa. 134, 150, 923 A.2d 1119,
1129 (2007) (citing 204 Pa.Code. § 303.1(b) (Sentencing
Guidelines do not apply to sentences imposed as result of
revocation of probation)).
Upon revoking 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. § 9771(b).
Thus, upon revoking probation, the trial court is limited only by
the maximum sentence that it could have imposed originally at
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the time of the probationary sentence, although once probation
has been revoked, the court shall not impose a sentence of total
confinement unless [authorized under 42 Pa.C.S. § 9771(c)].[5]
Moreover, 42 Pa.C.S. § 9721(b) specifies that in every case
following the 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.” See also Pa.R.Crim.P. 708(C)(2) (indicating
at the time of sentence following the revocation of probation,
“[t]he judge shall state on the record the reasons for the
sentence imposed.”).
[F]ollowing revocation, a sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or
specifically reference the statutes in question. Simply put, since
the defendant has previously appeared before the sentencing
court, the stated reasons for a revocation sentence need not be
as elaborate as that which is required at initial sentencing. The
rationale for this is obvious. When sentencing is a consequence
of the revocation of probation, the trial judge is already fully
informed as to the facts and circumstances of both the crime and
the nature of the defendant[.]
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). Further,
where the revocation sentence was adequately considered and
sufficiently explained on the record by the revocation judge, in
light of the judge’s experience with the defendant and awareness
of the circumstances of the probation violation, under the
appropriate deferential standard of review, the sentence, if
within the statutory bounds, is peculiarly within the judge’s
discretion.
Id. at 28-29.
Here, Appellant does not suggest the sentence fell outside the
statutory bounds. Further, the trial judge was fully aware of the facts and
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5
In disposing of Appellant’s first issue, we explained that 42 Pa.C.S.A.
§ 9771(c)(2) and (3) authorized a sentence of total confinement in this case.
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circumstances of Appellant’s case and Appellant’s actions, having presided
over earlier proceedings, including his original sentencing and his first review
hearing in November 2014. Moreover, as reflected above, the trial judge
explained on the record the reasons for imposing Appellant’s sentence of
confinement following revocation of his probation. We find no abuse of
discretion with respect to 42 Pa.C.S.A. § 9721(b). Appellant’s second issue
lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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