J-S03036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MICHAEL JOYNER :
: No. 1101 EDA 2017
Appellant
Appeal from the Judgment of Sentence February 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0713981-2001
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 23, 2018
Appellant Michael Joyner appeals the judgment of sentence entered by
the Court of Common Pleas of Philadelphia County after the revocation of his
probation and parole. Appellant claims he was denied a prompt revocation
hearing and asserts that the lower court abused its discretion in imposing his
third revocation sentence. We affirm.
On November 28, 2001, following a bench trial, Appellant was convicted
of Possession of a Controlled Substance with Intent to Deliver (PWID). On
January 25, 2002, Appellant was sentenced to 11½ to 23 months incarceration
to be followed by three years’ reporting probation. After Appellant was paroled
on August 8, 2002, he immediately absconded from court supervision.
On March 18, 2003, Appellant was arrested and again charged with
PWID. In this new case, on May 29, 2003, he was convicted of PWID. On
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S03036-18
August 28, 2003, Appellant appeared for his first probation/parole violation
(VOP) hearing, was found in direct violation of his probation/parole, and was
sentenced to serve his back time in addition to a consecutive three years’
probation. On May 4, 2004, Appellant was paroled to Wedge Medical Center.
On August 16, 2004, Appellant again absconded from supervision. Wanted
cards were issued for his arrest.
Thereafter, Appellant was subsequently arrested in New Jersey for four
new drug related charges. On June 7, 2005, Appellant was arrested and
charged in New Jersey for possession of a controlled substance. On December
13, 2005, Appellant was arrested and charged again in New Jersey for
possession of a controlled substance. On January 30, 2006, Appellant was
convicted of both of these charges and sentenced to three years’ probation.
On August 30, 2006, Appellant was arrested and charged in New Jersey with
two counts of possession of a controlled substance. On April 3, 2007,
Appellant was convicted on both counts and sentenced to five years’
probation. On July 28, 2010, a New Jersey court revoked his probation and
sentenced him to four years’ incarceration on the first three charges and five
years’ incarceration on his fourth charge. On May 23, 2013, the New Jersey
Department of Corrections paroled Appellant.
On July 12, 2013, in a second VOP hearing, the Philadelphia Court of
Common Pleas found Appellant in direct and technical violation of his
probation/parole due to his New Jersey convictions and his absconding from
supervision in 2004. The revocation court sentenced Appellant to 11½ to 23
-2-
J-S03036-18
months incarceration to be followed by three years’ probation with the
recommendation that he be sent to Hoffman Hall. The revocation court also
imposed sentencing conditions such as drug treatment, parenting classes,
anger management counseling as well as to maintain employment and pay
mandatory court costs and supervision fees. Inexplicably, on April 3, 2014,
Appellant was again paroled from Hoffman Hall.
Appellant attended two subsequent status hearings. On July 22, 2014,
Appellant admitted he had not paid anything towards his fines and costs,
claimed that he was attempting to further his education, and was granted
permission to attend community college. On October 24, 2014, Appellant
appeared at another status hearing, again admitting that he had not paid
anything towards his costs and fees, did not enroll in community college, but
was employed at McDonald’s. The lower court ordered Appellant to pay $175
towards his costs and fees before his next status hearing.
On December 15, 2014, after Appellant failed to appear at his scheduled
status hearing, a bench warrant was issued for his arrest. Thereafter, on
January 23, 2015, Appellant was again arrested and charged in New Jersey
for Possession of a Controlled Substance. On November 23, 2015, Appellant
was convicted of this new charge. He remained in New Jersey custody until
he was returned to Philadelphia on February 6, 2017.
Twenty-two days later, on February 28, 2017, Appellant proceeded to
his third VOP hearing and was found in direct and technical violation of his
probation and parole. The lower court revoked his probation and parole and
-3-
J-S03036-18
resentenced him to 2½ to 5 years’ imprisonment. On March 7, 2017,
Appellant filed a post-sentence motion. On March 28, 2017, he filed this
appeal while his post-sentence motion was still pending.1
Appellant raises two issues for our review on appeal:
1. Was not [Appellant] denied his right to a speedy revocation
hearing in violation of Pa.R.Crim.P. 708, when his hearing was
delayed for 15 months after his conviction in the criminal case
constituting a direct violation of his probation, and [A]ppellant
was substantially prejudiced by the delay?
2. Does not the sentence of 2½ to 5 years total confinement
represent an abuse of discretion in that it was manifestly
excessive and unreasonable, inconsistent with the Sentencing
Code and fundamental norms underlying the sentencing
process, not necessary to vindicate the authority of the court,
and contrary to what was necessary to foster the rehabilitative
needs of [A]ppellant, a drug addict and nonviolent offender
who already served substantial time in New Jersey and was
successfully engaged in rehabilitative programs there?
Appellant’s Brief, at 3.
Appellant first claims his right to a prompt revocation hearing was
violated when his violation hearing was scheduled more than fifteen months
after the New Jersey conviction that served as the basis for the revocation.
As an initial matter, we must determine whether Appellant waived this issue
for review. “[T]he failure to make a timely and specific objection before the
____________________________________________
1 “An appellant whose revocation of probation sentence has been imposed
after a revocation proceeding has 30 days to appeal [the] sentence from the
day [the] sentence is entered, regardless of whether or not [he or] she files a
post-sentence motion.” Commonwealth v. Parlante, 823 A.2d 927, 929
(Pa.Super. 2003) (citing Pa.R.Crim.P. 708(D)).
-4-
J-S03036-18
trial court at the appropriate stage of the proceedings will result in waiver of
the issue.” Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016).
This Court has held that a speeding revocation hearing claim must be raised
and preserved at the revocation proceeding, or it will be deemed waived.
Commonwealth v. Collins, 492 Pa. 405, 407, 424 A.2d 1254, 1254 (1981).
Upon review of the transcript from the third revocation hearing, it is
clear that Appellant did not object to the delay of which he now complains of
on appeal. Instead, Appellant waited to raise this claim in his post-sentence
motion, which the revocation court did not rule on before Appellant filed this
appeal. As a result, we find Appellant has waived his challenge to the
timeliness of his revocation hearing by failing to properly preserve it with a
timely objection in the lower court.
Second, Appellant raises various challenges to the trial court’s discretion
in imposing his revocation sentence.2 When reviewing such a challenge, we
adhere to the following standard:
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. Raybuck, 915 A.2d 125, 128 (Pa.Super. 2006).
____________________________________________
2 Appellant concedes on appeal that he violated the terms and conditions of
his probation.
-5-
J-S03036-18
Appellant's challenge to the discretionary aspects of his sentence does
not entitle him to appellate review as of right. Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super. 2011). Prior to addressing such a challenge, this
Court engages in a four-part analysis to determine whether: the appeal is
timely; Appellant preserved his issue; Appellant's brief contains a concise
statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f); and the statement raises a substantial question that
the sentence is inappropriate under the Sentencing Code. Commonwealth
v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013), appeal denied, 621 Pa. 692,
77 A.3d 1258 (2013); see also Pa.R.A.P. 2119(f).
In this case, Appellant filed a timely notice of appeal and preserved
several claims in a timely motion for reconsideration of his sentence.
However, not all of those issues were also raised in his Statement of Reasons
for Allowance of Appeal pursuant to Rule 2119(f). Our review of the record
reveals that the only issue properly preserved in both Appellant’s post-
sentence motion and his 2119(f) statement was his claim that the trial court
“failed to consider relevant sentencing criteria, including the protection of the
public, the gravity of the underlying offense, and the rehabilitative needs of
Appellant.” See Petition to Vacate and Reconsider Sentence, 3/7/17, at 1, 3;
Appellant’s Brief, at 11.
Thus, we proceed to consider whether Appellant has presented a
substantial question that his sentence is not appropriate under the Sentencing
Code. In doing so, we are mindful that “[t]he determination of what
-6-
J-S03036-18
constitutes a substantial question must be evaluated on a case-by-case basis.”
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015), appeal
denied, 633 Pa. 774, 126 A.3d 1282 (2015) (citation omitted). In addition,
[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.
Id. Appellant’s argument that the trial court, in imposing sentence, failed to
consider the protection of the public and Appellant’s rehabilitative needs,
raises a substantial question. See Commonwealth v. Derry, 150 A.3d 987,
992 (Pa.Super. 2016) (concluding a claim the trial court failed to consider the
protection of the public, the gravity of the underlying offense, and the
appellant’s rehabilitative needs raises a substantial question in typical cases).
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 that appellate review of a revocation sentence includes
discretionary sentence challenges). “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, 322 (Pa.Super.
2006). Following the revocation of probation, the trial court may impose
a sentence of total confinement if any of the following conditions exist: the
-7-
J-S03036-18
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. Id. at
323. See also 42 Pa.C.S.A. § 9771(c).
The Sentencing Guidelines do not apply to sentences imposed following
a revocation of probation, and when imposing its sentence 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 42 Pa.C.S.A. § 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 or specifically
reference the statute in question, but the record as a whole must reflect
the sentencing court's consideration of the facts of the crime and character of
the offender.” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.
2010) (citation omitted), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010).
-8-
J-S03036-18
At the revocation hearing, the lower court expressed frustration at
Appellant’s failure to take advantage of its repeated attempts to help Appellant
work towards rehabilitation by sending him to drug-treatment programs
instead of state prison:
This sentence is absolutely necessary because I’ve been
trying to help this defendant with all his drug-related issues since
2001. It is now 2017 and actually, nothing I did ever helped. I
allowed him to go to three different programs in the county and
none of those helped because he was still picked up in New Jersey
for the same thing in 2015, so this sentence is necessary.
I think that maybe he might do better in state prison, but if
he doesn’t have the desire to kick his habit and stay out of trouble,
then there is nothing that I would ever be able to do to help that
situation, so I think this sentence is appropriate under the
circumstances.
VOP Hearing, 2/28/17, at 27-28.
In addition, in its Opinion filed pursuant to Pa.R.A.P. 1925(a), the lower
court provided further detail of its decision to impose the sentence in this case:
Here, this Court considered all relevant information about
[Appellant] that was available to this Court. [The court] reviewed
[Appellant’s] criminal history on the record, reviewed the
probation department report, listened to the recommendation of
the Commonwealth and defense counsel, and heard what
[Appellant] had to say when finding him in violation of his
probation. As stated above, there is no requirement that this
Court impose the minimum possible sentence. Rather, based
upon [Appellant’s] repeated and continuing drug violations, this
Court found it appropriate to sentence [Appellant] to 2½ to 5
years state incarceration, with credit for time served.
VOP Hearing, 2/28/17, at 27-28.
In light of the foregoing, Appellant’s claim that the trial court did not
consider the relevant sentencing factors is belied by the record. Appellant
-9-
J-S03036-18
essentially asks this Court to reweigh the significance of each sentencing
factor found at Section 9721(b); we will not substitute our judgment in place
of the sentencing court's discretion. See Commonwealth v. Macias, 968
A.2d 773, 778 (Pa.Super. 2009).
To the contrary, we agree that Appellant's repeated refusal to abide by
the conditions of his probation evinced a prison sentence that was essential
to vindicate the authority of the court and for the protection of the public.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/18
- 10 -