J-A18037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY MICHAEL FLOWERS :
:
Appellant : No. 35 WDA 2017
Appeal from the Judgment of Sentence December 22, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0002589-2012
BEFORE: BOWES, LAZARUS and OTT, JJ.
MEMORANDUM BY OTT, J.: FILED OCTOBER 17, 2017
Anthony Michael Flowers appeals, nunc pro tunc, from the judgment of
sentence imposed on December 22, 2015, in the Westmoreland County Court
of Common Pleas. The trial court sentenced Flowers to an aggregate term of
two and one-half to five years’ imprisonment and two years’ consecutive
probation, after the revocation of his sentence of intermediate punishment
imposed following Flowers’ guilty plea to charges of attempted rape, unlawful
restraint and simple assault (two counts).1 On appeal, Flowers contends the
court’s reasons for revoking his intermediate punishment sentence, as well as
the new sentence imposed, constitute cruel and unusual punishment, and,
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1 See 18 Pa.C.S. §§ 901/3121(a)(1), 2902(a)(1), and 2701(a)(1), (a)(3),
respectively.
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alternatively, argues the trial court abused its discretion in imposing the new
sentence. For the reasons below, we affirm.
The facts underlying Flowers’ guilty plea are as follows.2 On June 25,
2012, at approximately 1:00 p.m., the victim was walking along the Five Star
Trail in Greensburg, Pennsylvania, when a man, later identified as Flowers,
approached her and asked if she had a cell phone. The victim replied in the
negative and continued walking. Thereafter, Flowers grabbed her hand and
“started dragging her off the trail to a gravel parking lot[.]” Criminal
Complaint, 6/25/2012, Affidavit of Probable Cause at 1. The victim began
kicking and screaming, and briefly escaped Flowers’ grip. However, Flowers
then grabbed her leg and continued to try to drag her off the trail. He
eventually let go, and asked the victim if she “wanted to have sex with [him].”
Id. When she replied no, Flowers asked her why. At that point, the victim
ran away. She later identified Flowers as her attacker.
Flowers was charged with attempted rape, unlawful restraint, and two
counts of simple assault. On November 1, 2012, pursuant to a defense
request, the trial court ordered Flowers to undergo a competency evaluation
at Torrence State Mental Hospital. He remained at the hospital until at least
early 2013. Thereafter, on November 21, 2013, Flowers entered a guilty plea
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2We note the transcript from the guilty plea hearing was not included in the
certified record. Therefore, we have gleaned these facts from the probable
cause affidavit attached to the criminal complaint. See Criminal Complaint,
6/25/2012, Affidavit of Probable Cause at 1.
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to all charges. His sentencing was deferred pending a SORNA3 assessment.4
Subsequently, on February 18, 2014, the trial court sentenced Flowers as
follows: (1) on the count of attempted rape, a term of two years county
intermediate punishment with electronic home monitoring; and (2) on the
count of unlawful restraint, a term of two years consecutive probation.
Flowers was also required to continue sex offender treatment. No further
punishment was imposed on the simple assault charges.5
A bench warrant was issued for Flowers on June 10, 2014, asserting (1)
he was unsuccessfully discharged from his sex offender treatment program on
April 29, 2014; and (2) he had a “violent episode” on May 16, 2014, while on
electronic home monitoring, which resulted in “a 302 commitment.” 6 See
Order for Warrant of Arrest and To Detain, 6/10/2014. Flowers appeared for
a revocation hearing on June 24, 2014.
At the hearing, the Commonwealth presented the testimony of Dawn
Smitley, Flowers’ therapist at the sex offender treatment center. Smitley
testified that she met with Flowers three times per week for 30 days, from
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3 See Sexual Offenders Registration and Notification Act, 42 Pa.C.S. §§
9799.10-9799.41.
4 The trial court released Flowers on electronic home monitoring pending his
sentencing hearing. See Order, 11/21/2013.
5 It appears from the record that Flowers was not found to have met the
criteria for classification as a sexually violent predator under SORNA. See
Order, 2/18/2014. See also 42 Pa.C.S. § 9799.24 (Assessments).
6 See 50 P.S. § 7302 (providing for 120-hour involuntary commitment of
severely mentally disabled person in need of immediate treatment).
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March 27, 2014, until April 29, 2014. Smitley noted that while Flowers was
receptive to treatment, he was dismissed from the program because “his
mental health and low IQ prohibit [him] from learning abstract concepts.”
N.T., 6/24/2014, at 9. She explained:
So he’s not able to process beyond I did this. And when it’s why
did you do this, it’s I don’t know why I did that, I wasn’t thinking.
He can’t process the abstract of I did this because there was a
sexual[] motivation behind it or any of the other reasons that we
might hear.
Id. Smitley conceded Flowers’ discharge was through no fault of his own,
stating “I believe he’s hindered by things that are – some of the things are
outside of his control, yes.” Id. at 13. Smitley further explained that due to
Flowers’ mental health issues, which include anger outbursts, he would better
benefit from “an in-patient setting where he has repetitive reinforcement of
concepts because he seems to learn better with repetition and reminders
regularly.” Id. at 9. However, she admitted she was not aware of a program
that could meet Flowers’ specific needs. See id. Similarly, Flowers’
Westmoreland County case manager, Nancy Packe, testified she was also
unaware of any inpatient or outpatient programs that could address Flowers’
issues. See id. at 18.
With regard to the alleged May 2014 violent episode, the
Commonwealth called Flowers’ county probation officer, Dawn Miletics.
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Miletics testified the incident was explained to her by Flowers’ mother as
follows:7
She just said that the evening that it occurred that because he
was not on his medication at the time, he became out of control.
He threw an iron at this elderly uncle that lives with him, he got
into a physical altercation with his younger brother who lives there
where there was a broom involved with [Flowers] hitting him with
the broom, and that they had to call the police on two occasions
that evening. The second time [the police] finally took him away.
Id. at 21. Miletics further testified that Flowers was not charged with any
crimes as a result of the incident, and voluntarily submitted to his commitment
when he was taken to the hospital. See id. at 22.
At the conclusion of the testimony, the trial court continued the detainer
so that defense counsel could determine if any outpatient programs were
available that could benefit Flowers. See id. at 26-27. Moreover, the court
specifically directed Miletics to speak with Flowers’ mother “and find out what
the circumstances are there, whether [Flowers] can be returned to the home
on electronic monitoring.” Id. at 26. In addition, the trial court vacated the
requirement that Flowers participate in sex offender treatment. See id. at
25.
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7 Miletics informed the trial court that Flowers’ mother told her she would be
present at the hearing. N.T., 6/24/2014, at 20-21. However, his mother
failed to appear. The trial court acknowledged that Milectis’s testimony did
not “rise to the level of evidence,” but the court considered it for “context.”
Id. at 21.
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In February of 2015, Flowers was, once again, committed to Torrence
State Hospital for a forensic evaluation. His 60-day commitment was
extended in March 2015, and again, in June 2015.
On November 13, 2015, the trial court conducted a revocation/re-
sentencing hearing. During the hearing, the court recognized that Flowers
was wearing a yellow uniform, which indicated he had a discipline issue.
Flowers told the court that he had threatened to “slice [the] throat” of a deputy
warden in the jail. N.T., 11/13/2015, at 7. Moreover, he stated he was taking
his medication at the time of that incident. See id. at 7-8. Flowers’
caseworker, Packe, testified she had been unable to locate a supervised
“mental health placement” that would accept “a person who has to register
with Megan’s Law.” Id. at 10. Both Packe and Flowers’ counsel indicated the
difficulty in finding appropriate treatment for Flowers was a combination of his
conviction of sexual offenses and the lack of funding. See id. at 11-12.
At the conclusion of the hearing, the trial court revoked Flowers’
sentence of intermediate punishment and re-sentenced him to an aggregate
term of two and one-half to five years’ imprisonment, followed by two years’
probation.8 The court also re-imposed the requirement that Flowers attend
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8 The court imposed the prison term for the charge of attempted rape, and
the probationary term for the charge of unlawful restraint. It merits mention
that the two and one-half year minimum sentence fell within the mitigated
range of the sentencing guidelines. See N.T., 11/13/2015, at 5.
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sex offender treatment.9 Flowers filed a timely post-sentence motion
asserting the trial court abused its discretion by (1) requiring him to “continue
with sex offender’s treatment when he already had been discharged through
no fault of his own[;]” and (2) sentencing him “to state prison when the only
credible admissible evidence presented to the Court in support of revocation”
was that he was discharged from sex offender treatment because he lacked
the mental capacity to benefit from it. Post Trial Motions, 11/23/2015, at ¶¶
11-12. As a result, Flowers argued his sentence constituted cruel and unusual
punishment under the Eighth Amendment. See U.S. Const. amend. VIII. By
order dated November 25, 2015, the trial court granted Flowers’ motion and
vacated his sentence. A re-sentencing hearing was scheduled for December
22, 2015.
At the re-sentencing hearing, Miletics updated the trial court regarding
an incident involving Flowers in prison, namely, that on December 17, 2015,
Flowers punched another inmate in the face. Counsel attempted to mitigate
Flowers’ behavior by explaining he was provoked when the other inmate spit
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9 We note that, for reasons that do not appear in the record, Flowers’
revocation/re-sentencing hearing was reassigned to Judge Christopher
Feliciani, although President Judge Richard McCormick, Jr., had presided over
Flowers’ guilty plea and June 2014 detainer hearing. With regard to the
requirement that Flowers participate in sex offender treatment, counsel
informed Judge Feliciani that Flowers’ was unable to benefit due to his mental
health issues, but the judge stated “he’ll have to try again,” noting “[m]aybe
they have another program at SCI that can help with the sex offender
treatment.” Id. at 15.
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on him. See N.T., 12/22/2015, at 4-5. Counsel further informed the court
that Flowers’ parents “want him in treatment.” Id. at 6. Thereafter, the trial
court re-imposed the sentence of two and one-half to five years’
imprisonment, and a consecutive two years’ probation. However, the court
omitted the requirement that Flowers participate in sex offender treatment.10
On December 31, 2015, Flowers filed another post-sentence motion
seeking reconsideration of his sentencing. Specifically, he claimed his
sentence was violative of the Eighth Amendment because he was punished for
violating a condition it was impossible for him to fulfill. Further, he argued
the sentence of imprisonment was excessive and disproportionate to his
original sentence which included intermediate punishment and electronic
home monitoring. The court denied Flowers’ motion that same day. This nunc
pro tunc appeal followed.11
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10 The court also ordered Flowers receive 1091 days’ credit for time-served.
11 On February 18, 2016, the trial court ordered Flowers to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Flowers complied with the court’s directive, and filed a concise statement on
March 9, 2016.
On December 2, 2016, a panel of this Court quashed Flowers’ appeal
because it was untimely filed. See Commonwealth v. Flowers, ___ A.3d
___ [165 WDA 2016] (Pa. Super. 2016). Indeed, counsel had filed the notice
of appeal one day late, on January 22, 2016. Thereafter, Flowers petitioned
the trial court for permission to appeal nunc pro tunc. The court granted the
motion on December 7, 2016, and this appeal follows.
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In his first issue on appeal, Flowers argues the revocation of his
intermediate punishment sentence violated his constitutional right against
cruel and unusual punishments. See Flowers’ Brief at 12. He explains:
The sentence from its outset imposed a condition of compliance
which was not possible for Flowers to ever achieve despite his best
efforts. The establishment of a sentencing condition that can
never be fulfilled and which is neither possible nor within a
defendant’s ability to satisfy is exacting a punishment which is in
its very essence cruel.
Id. at 13. Flowers emphasizes he was discharged from sex offender treatment
not because he failed to participate, but rather, because he was “not
sufficiently intelligent to ‘benefit’ from the program.” Id. Accordingly, Flowers
insists he is entitled to reinstatement of a sentence of intermediate
punishment. See id. at 14.
Pursuant to 42 Pa.C.S. § 9773, a trial court may “revoke a sentence of
county intermediate punishment upon proof of a violation of specific conditions
of the sentence.” 42 Pa.C.S. § 9773(b). Furthermore, subsection (c)
mandates that before doing so, the trial court must conduct a hearing “at
which the court shall consider the record of the initial sentencing proceeding
as well as the conduct of the defendant while serving a sentence of county
intermediate punishment.” 42 Pa.C.S. § 9773(c).
Here, Flowers argues the court’s revocation of his intermediate
punishment sentence constituted cruel and unusual punishment. Both the
Eighth Amendment of the United States Constitution and Article 1, Section 13
of the Pennsylvania Constitution, forbid the imposition of “cruel and unusual
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punishments.” U.S. Const., amend. VIII; Pa. Const., Art. 1, Sec. 13. See
Commonwealth v. Spells, 612 A.2d 458, 461 (Pa. Super. 1992) (the
guarantee against cruel punishment in the state and federal constitutions is
coextensive), appeal dismissed as improvidently granted, 643 A.2d 1078 (Pa.
1994). This Court has explained that a punishment is cruel and unusual if it
is “wholly and irrationally disproportionate to the crime,” 12 or, in other words,
“so greatly disproportionate to an offense as to offend evolving standards of
decency or a balanced sense of justice.” Commonwealth v. Ehrsam, 512
A.2d 1199, 1210 (Pa. Super. 1986) (mandatory minimum five year sentence
for offenses committed with firearm did not violate Eighth Amendment),
appeal denied, 527 A.2d 535 (Pa. 1987), cert. denied, 439 U.S. 932 (1989).
The underlying premise of Flowers’ argument is that the trial court
revoked his intermediate punishment sentence solely on the basis of his
inability to benefit from sex offender treatment. See Flowers’ Brief at 13.
However, our review of the record reveals the court’s revocation order was
not so limited. Rather, in revoking the intermediate punishment sentence,
the court considered the facts that: (1) there were no outpatient mental
health programs available that could address Flowers’ special needs, and (2)
even when Flowers took his medication (which he frequently ran out of) he
still experienced violent outbursts. See N.T., 6/24/2014, at 4-5, 9-10,18, 21-
22; N.T., 11/13/2015, at 7-9, 10-11. Based upon these facts, we do not find
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12Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa. Super. 2008),
appeal denied, 980 A.2d 111 (Pa. 2009).
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the court’s revocation of Flowers’ intermediate punishment sentence
constituted cruel and unusual punishment. It was clear from the testimony at
all three sentencing/re-sentencing hearings that Flowers was unable to adhere
to the conditions of his electronic home monitoring release. Accordingly, his
first issue fails.
Second, in a related claim, Flowers insists that the court’s imposition of
a sentence of state incarceration constituted cruel and unusual punishment as
it was inherently disproportional to the original sentence, county intermediate
punishment, thereby violating his Eighth Amendment rights. See Flowers’
Brief at 15. Flowers notes the original sentence “allows for rehabilitation and
a home residence,” while the new sentence “requires placement in a state
prison for several years.” Id. Moreover, he repeats his assertion that the
“only change in circumstance” was his intellectual inability to complete sex
offender treatment. Id.
We note that a challenge to the constitutionality of a sentence “on a
claim that it violates [a defendant’s] right to be free from cruel and unusual
punishment raises a legality of sentencing claim since he is challenging the
trial court’s authority in imposing the sentence.” See Yasipour, supra, 957
A.2d at 740. The focus of an Eighth Amendment challenge is whether the
sentence imposed is “grossly disproportionate to a crime.” Spells, supra,
612 A.2d at 463, quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991).
However, successful Eighth Amendment challenges are “extremely rare where
the penalty is something other than capital punishment.” Yasipour, supra,
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957 A.2d at 743. See id. (imposition of 20 to 40 year sentence for third-
degree murder, following guilty but mentally ill verdict, did not violate Eighth
Amendment).
As noted above, Flowers focuses on the purported disproportionality
between his original intermediate punishment sentence and his subsequent
term of incarceration. However, the trial court, in its opinion, determined the
prison sentence was not disproportionate “in light of [Flowers’] charges,
current mental health, and the surrounding circumstances.” Trial Court
Opinion, 3/23/2016, at 5. We find no reason to disagree.
Here, Flowers pled guilty to attempted rape. Indeed, he tried to drag
the victim, against her will, from a walking trail in order to have sex with her.
Accordingly, Flowers committed a serious offense. Moreover, while the court
initially permitted Flowers to serve his sentence in a less restrictive
environment (i.e., county intermediate punishment), it soon became apparent
that Flowers needed structured mental health treatment and more constraints
on his liberty due to his continued violent outbursts. As explained above, the
court considered much more than Flowers’ inability to benefit from sex
offender treatment. Therefore, we find the court’s imposition of a mitigated
range sentence following revocation of Flowers’ intermediate punishment
sentence did not violate his constitutional right to be free from cruel and
unusual punishment.
Lastly, Flowers contends the trial court abused its discretion when it
failed to consider the factors listed in 42 Pa.C.S. § 9771(c) before imposing a
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sentence of total confinement, and, in doing so, relied upon an impermissible
factor, namely Flowers’ inability to complete sex offender treatment. See
Flowers’ Brief at 16-17. This issue challenges the discretionary aspects of his
sentence.
A challenge to the discretionary aspects of a sentence is not absolute,
but rather, “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (quotation
omitted). In order to reach the merits of such a claim, this Court must
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.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(quotation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Flowers complied with the procedural requirements for this appeal by
filing a timely post-sentence motion for modification of sentence, and
subsequent notice of appeal, and by including in his appellate brief a
statement of reasons relied upon for appeal pursuant to Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we
must determine whether he has raised a substantial question justifying our
review.
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A substantial question exists when an appellant sets forth “a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted). An allegation that the trial court failed to consider the
requirements of Section 9771(c) before imposing a sentence of total
confinement raises a substantial question that the sentence imposed was
“inconsistent with a specific provision of the Sentencing Code.” Id.
Accordingly, we proceed to an evaluation of Flowers’ claim on appeal.
The Sentencing Code provides that, similar to the revocation of a
probationary sentence, when a trial court revokes a county intermediate
punishment sentence, “the sentencing alternatives available to the court shall
be the same as the alternatives available at the time of initial sentencing.” 42
Pa.C.S. § 9773(b). Moreover, Section 9771(c) precludes a trial court from
imposing a sentence of total confinement upon revocation of probation unless
the court finds one or more of the following:
(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.
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42 Pa.C.S. § 9771(c). Flowers maintains that “[n]one of the factors set forth
in Section 9771(c) are present in this case.” Flowers’ Brief at 17. We
disagree.
We recognize the trial court did not explicitly apply the Section 9771(c)
factors before imposing Flowers’ sentence. Nevertheless, we do not agree
with Flowers that none of the factors were present under the facts of his case.
See Flowers’ Brief at 17. While it is true he was not convicted of another
crime, his mental health impairments, coupled with his violent outbursts,
make it likely he would commit another crime if he were not imprisoned.
Indeed, after reciting the “instances of aggression” Flowers exhibited following
his intermediate punishment sentence, the trial court opined:
Due to the nature of the charges and Mr. Flower[s’] violent
history this Court is of the opinion that the sentence imposed was
appropriate and within the sentencing guidelines. Additionally,
the court ordered the state correctional institution to take notice
of Mr. Flowers’ mental health condition and make every attempt
to place him in a high impact mental health treatment facility.
N.T. 12/22/15 at 9.
Trial Court Opinion, 3/23/2016, at 5.
Considering Flowers’ continued violent outbursts both while on and off
his medication, as well as the lack of suitable outpatient mental health
treatment for him despite the court’s diligent efforts to find an appropriate
placement, we find the trial court did not err or abuse its discretion in imposing
a mitigated range sentence of incarceration following the revocation of his
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intermediate punishment sentence.13 Therefore, Flowers’ final claim is
meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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13 Our review of the record reveals that Packe and defense counsel researched
at least 15 placements for Flowers, none of which could accommodate his
special needs. See N.T., 11/13/2015, at 10-11. Indeed, Flowers’s case
presents a perfect storm of (1) serious charges which require him to register
as a sex offender, (2) violent behavior which remains largely untreatable, (3)
a lack of capacity to conceptually change his behavior due to mental
impairments, and (4) the lack of funding which would afform him placement
in certain facilities outside of prison. We share the frustration evidenced by
the trial court that the sentence imposed may still not address the underlying
mental health issues that appear to be the impetus of Flowers’s behavior.
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