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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC WHITHERS,
Appellant No. 1195 EDA 2015
Appeal from the Judgment of Sentence Entered March 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0306711-1998
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 14, 2016
Appellant, Eric Whithers, appeals from the judgment of sentence of 5
to 10½ years’ imprisonment, imposed after the trial court anticipatorily
revoked his term of probation and resentenced him. Appellant solely
challenges the discretionary aspects of his sentence. We affirm.
In July of 1997, Appellant shot 20-year-old Horace White in the head
with a shotgun. White was pronounced dead the following day. Appellant
subsequently confessed to his involvement in the shooting. On July 19,
1999, Appellant pled guilty to third-degree murder and the court imposed a
‘split sentence’ of 7½ to 20 years’ incarceration, followed by 10 years’
probation, for that offense.
In May of 2008, while Appellant was on parole for his murder
conviction, he was arrested and charged with possession of a firearm in
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violation of 18 Pa.C.S. § 6105 (Persons not to possess, use, manufacture,
control sell or transfer firearms). Following a trial in October of 2014,
Appellant was convicted of that offense, and was sentenced by the
Honorable Steven R. Geroff to serve 5 to 10 years’ imprisonment.
Additionally, based on the firearm conviction, Appellant was recommitted by
the state parole board on his third-degree murder sentence of incarceration,
and was ordered to serve 24 months of ‘back time’ remaining on that
sentence. Judge Geroff’s sentence was ordered to run consecutively to
Appellant’s 24 months of ‘back time.’
Thereafter, on March 31, 2015, the trial court in the present case
anticipatorily revoked Appellant’s term of probation for his third-degree
murder conviction, and sentenced him to a term of 5 to 10½ years’
imprisonment. The court ordered that this sentence be served consecutively
to Judge Geroff’s sentence for Appellant’s firearm offense. Appellant filed a
timely post-sentence motion, which was denied. He thereafter filed a timely
notice of appeal, and timely complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) statement. Herein, Appellant presents one question for
our review:
Did not the lower court err, abuse its discretion, and violate
general sentencing principles when, following the anticipatory
revocation of probation, the court imposed a consecutive five (5)
to ten and a half (10½) years of incarceration, where this
sentence was manifestly excessive and unreasonable, far
surpassed what was required to protect the public, went well
beyond what was necessary to foster [A]ppellant’s rehabilitation,
and the lower court failed to state adequate reasons for
imposing such a lengthy sentence on the record?
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Appellant’s Brief at 3.1
Appellant’s claim clearly constitutes a challenge to the discretionary
aspects of his sentence.
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. When challenging the
discretionary aspects of the sentence imposed, an appellant
must present a substantial question as to the inappropriateness
of the sentence. 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. That is, [that] 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. We
examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
determine whether a substantial question exists. Our inquiry
must focus on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)
(citations, quotation marks and footnote omitted; emphasis in original).
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1
Appellant raised several other claims in his Rule 1925(b) statement,
including a challenge to the court’s ability to anticipatorily revoke his term of
probation and sentence him to another term of incarceration for his third-
degree murder conviction. However, Appellant has abandoned those claims
on appeal, and even concedes that “the lower court did have the authority to
anticipatorily revoke his probation and impose a new period of incarceration
given the [probation] violation.” Appellant’s Brief at 13.
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Here, Appellant has presented a Rule 2119(f) statement in his brief, in
which he avers that this Court “should grant allowance of appeal from the
discretionary aspects of sentence because the lower court violated the
express provisions of the Sentencing Code, imposed an excessive sentence,
and failed to state the reasons for the sentence on the record, contrary to
the fundamental norms which underlie the sentencing process.” Appellant’s
Brief at 6 (citing Commonwealth v. Mouzon, 812 A.2d 617, 624, 627 (Pa.
2002) (holding that, while this Court is not required to accept “bald
allegations of excessiveness[,]” a claim that a sentence is excessive is not
“per se precluded from receiving appellate review” and will be reviewed
where the “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”)). After reviewing Mouzon, and other
cases cited by Appellant, we conclude that he has presented a substantial
question for our review. See Mouzon, supra; Commonwealth v.
Williams, 69 A.3d 735, 740 (Pa. Super. 2013) (citing Mouzon in concluding
that a substantial question existed where Williams claimed the court
imposed a sentence that was unreasonably disproportionate to her crimes
and was unduly excessive); Commonwealth v. Parlante, 823 A.2d 927,
929 (Pa. Super. 2003) (finding a substantial question was raised where
Parlante claimed the court imposed a “grossly disproportionate” sentence
and failed to “provide adequate reasons on the record for the sentence”).
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The thrust of Appellant’s argument is that the court imposed an
excessive sentence, mainly because it ordered its sentence of 5 to 10½
years to run consecutively to Judge Geroff’s 5 to 10 year sentence, and to
the 24 months of ‘back time’ that remained on Appellant’s initial sentence of
incarceration for third-degree murder. Appellant also contends that the
court failed to state adequate reasons on the record for imposing his
sentence, and that the court erred by not considering his rehabilitative
needs.
In reviewing this claim, we apply the following, well-settled standard
of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (quoting
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)).
We also note that,
contrary to when an initial sentence is imposed, the Sentencing
Guidelines do not apply [when sentencing a defendant following
revocation of probation], 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.
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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 the time of the probationary sentence, although
once probation has been revoked, the court shall not impose a
sentence of total confinement 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.
42 Pa.C.S. § 9771(c).
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.”
However, following 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, particularly where, as here, the trial judge had the
benefit of a PSI during the initial sentencing proceedings.
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (internal
citations and footnote omitted).
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Having reviewed the record of the revocation/resentencing hearing in
Appellant’s case, and keeping in mind the legal principles set forth in
Pasture, we ascertain no abuse of discretion in the court’s fashioning of
Appellant’s sentence. Notably, as the court pointed out in its opinion, it had
the benefit of a presentence report, which outlined Appellant’s lengthy
criminal history. See Trial Court Opinion, 7/27/15, at 7 n.3. The court also
discussed other factors it considered in sentencing Appellant, stating:
Defense counsel pointed out that [Appellant] got his GED in
custody, and has always worked when he was out of custody
([N.T. 3/31/15,] at 9). [Appellant] had low level drug use in the
past, and some minor prison infractions (id. at 9-10).
This [c]ourt explained that [Appellant], on state parole for
third[-]degree murder, should not have a gun (N.T. 3/31/15, p.
24). He could have been statutorily sentenced to up to 40 years
in prison for the murder conviction (id. at 18-19). This court
explained that a 5 to 10½ year prison sentence consecutive to
all other sentences would be “an individualized sentence that
takes into consideration [Appellant’s] possibility of being
rehabilitated. And that has to be balanced against [the court’s]
duty to protect the public” (id. at 25). What was very clear to
this court at the [violation of probation] hearing is that
[Appellant] is in no way rehabilitated. His actions demonstrate
that he has no intention of leading a crime free life outside of
incarceration. [Appellant] has taken no ownership of his
[firearm offense]; he denied the crime in the Presentence Report
and mentioned at the [violation of probation] hearing that he is
still seeking to overturn that conviction (N.T. 3/31/15, p. 23).
The probationary sentence given by [the prior trial court] for
[Appellant’s] murder conviction was structured for this exact
scenario -- [Appellant] was given a generous sentence despite
killing a 20 year-old man by shooting him in the head. Instead
of reforming himself, he chose to go back out on the streets …
with several other males[,] and armed with a gun that he is not
permitted to carry[,] to one of the worst crime intersections in
America -- these facts are strikingly similar to the dynamics that
occurred when [Appellant] committed the underlying murder
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with a group of males in a car armed with guns. [Appellant] is
not a reformed felon, but rather demonstrates that he is likely to
be involved in another murder statistic in Philadelphia. The
probationary sentence given by [the initial trial court judge] for
murder was structured consecutive to [Appellant’s] 7 ½ to 20
years[’] incarceration sentence so the court could increase the
incarceration portion of the sentence to protect society from
[Appellant] should he choose not to change his criminal
behavior. We are in that exact scenario now.
Therefore, contrary to [Appellant’s] claim, the [violation of
probation] sentence imposed by the court was not error or an
abuse of discretion. The sentence imposed was not manifestly
excessive and unreasonable, and this court did examine
[Appellant’s] background, character and rehabilitative needs.
And, as cited above, this court did disclose in open court at the
time of sentencing a statement of the reasons for the sentence
imposed.
Id. at 7-9 (footnotes and internal quotation marks omitted).
Based on the revocation court’s explanation for its sentence, and the
record of the revocation/resentencing hearing conducted on March 31, 2015,
Appellant has not convinced us that the court abused its discretion by
imposing a 5 to 10½ year sentence, or in ordering that sentence to run
consecutively to his other terms of incarceration. The court’s decision to
order its sentence to run consecutively to Appellant’s other sentences was
reasonable. Appellant’s act of possessing a gun constituted a violation of his
probation that was separate and distinct from his conviction under section
6105 before Judge Geroff. Moreover, the conduct triggering the probation
violation was completely unrelated to his third-degree murder offense, for
which 24 months of ‘back time’ remained to be served. Thus, it was not an
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abuse of discretion for the court to require Appellant to serve a consecutive
sentence for his probation violation.
Additionally, contrary to Appellant’s claim, the record of the sentencing
hearing, as a whole, demonstrates that the court stated sufficient reasons
for imposing the sentence that it did, as discussed by the court in its
opinion. We also conclude that Appellant’s claim that the court abused its
discretion by failing to consider his rehabilitative needs is meritless. Initially,
Appellant did not mention this claim in his Rule 2119(f) statement;
therefore, he has not demonstrated that a substantial question exists to
warrant our review. Nevertheless, Appellant’s argument in this regard is
meritless. As clarified by the Pasture Court, the revocation court was not
bound by section 9721(b)’s requirement that it consider the rehabilitative
needs of Appellant. In any event, the court did examine this factor, and
reasonably concluded that Appellant’s conduct exhibited an unwillingness to
rehabilitate himself or change his criminal behavior.
Finally, we note that Appellant contends, for the first time on appeal,
that the court abused its discretion by “consider[ing] inappropriate factors in
imposing [its] sentence….” Appellant’s Brief at 18. This claim was not
raised in Appellant’s post-sentence motion, or in his Rule 1925(b)
statement. Therefore, it is waived. See Commonwealth v. Bromley, 862
A.2d 598, 603 (Pa. Super. 2004) (“It is well settled that an [a]ppellant’s
challenge to the discretionary aspects of his sentence is waived if the
[a]ppellant has not filed a post-sentence motion challenging the
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discretionary aspects with the sentencing court.”) (citations omitted);
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2016
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