J-S66005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JASON EDWARD JACKSON,
Appellant No. 1433 WDA 2016
Appeal from the Judgment of Sentence August 25, 2016
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos.: CP-02-CR-0017785-2013
CP-02-CR-0017787-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 18, 2018
Appellant, Jason Edward Jackson, appeals from the judgment of
sentence entered on August 25, 2016, following the revocation of his
probation. On appeal, Appellant contends that the trial court relied on
impermissible factors in sentencing him and that the sentence was grossly
disproportionate to his crimes. For the reasons discussed below, we affirm
the judgment of sentence.
We take the underlying facts and procedural history in this matter from
the trial court’s April 6, 2017 decision and our independent review of the
certified record.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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[Appellant] was charged with one (1) count of [s]imple
[a]ssault [each in two separate criminal informations] in relation
to two (2) incidents wherein he bit his girlfriend . . . on the left
wrist and right arm (CC 201317787) and punched her in the face,
leaving a bruise under her eye (CC 201317785). He appeared
before [the trial c]ourt on May 7, 2014[,] and entered a general
plea with an agreement for probation. He was sentenced to a
term of imprisonment of 146 days (time served), plus a term of
probation of two (2) years, with special conditions including the
Batterers Intervention Program and no violent contact with the
victim. No [p]ost-[s]entence [m]otions were filed and no direct
appeal was taken.
[Appellant] next appeared before [the trial c]ourt on July
17, 2014[,] for a review hearing. At that time[,] it was revealed
that [Appellant] had so far failed to enroll in the required Batterers
Intervention Program. He was reminded of his requirement to do
so and his probation was continued.
[Appellant] next appeared before [the trial c]ourt on July
30, 2015[,] for a probation violation hearing. Again, it was
revealed that [Appellant] had still failed to enroll in the required
Batterers Intervention Program and had failed to pay his assessed
court costs. It was also noted that [Appellant] had been arrested
on two (2) additional cases involving the same victim with charges
including [t]erroristic [t]hreats, [h]arassment, [s]imple [a]ssault,
[p]ersons [n]ot to [p]ossess and [r]ecklessly [e]ndangering
[a]nother [p]erson, and on a third case of [s]imple [a]ssalt
involving a different victim. At the conclusion of that hearing, [the
trial c]ourt revoked [Appellant’s] probation and imposed a term of
restrictive intermediate punishment of nine (9) to 18 months, with
a concurrent term of probation of two (2) years. Again, no [p]ost-
[s]entence [m]otions were filed and no direct appeal was taken.
[Appellant] next appeared before [the trial c]ourt on August
25, 2016[,] for a probation violation hearing. After finding that
[Appellant] had cut off his ankle bracelet and absconded from
electronic monitoring, that he had failed to comply with the
technical conditions of probation including failing to complete the
Batterers Intervention Program, using drugs and failing to report
for drug testing, [the trial c]ourt revoked [Appellant’s] probation
and imposed two consecutive terms of imprisonment of one (1) to
two (2) years, for an aggregate term of imprisonment of two (2)
to four (4) years. A timely [p]ost-[s]entence [m]otion to
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[r]econsider [s]entence was filed and was denied on September
7, 2016. This appeal followed.[1]
(Trial Court Opinion, 4/06/17, at 1-2) (footnote omitted).
On appeal, Appellant raises the following question for our review.
I. Did the trial court abuse its discretion in improperly relying
on four cases that had been dismissed or withdrawn and
discounting mitigating evidence when it issued a maximum
sentence of total confinement even though [Appellant] had
no new convictions?
(Appellant’s Brief, at 5) (unnecessary capitalization omitted).
In his only issue, Appellant challenges the discretionary aspects of his
sentence.2 In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013)
(en banc), this Court held that “thus [our] scope of review in an appeal from
a revocation sentencing includes discretionary sentencing challenges.”
Cartrette, supra at 1034. Appellant’s claim is properly before us.
The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
____________________________________________
1 On October 4, 2016, the trial court directed Appellant to file a concise
statement of errors complained on appeal. After being granted two extensions
of time, Appellant filed a timely Rule 1925(b) statement on January 31, 2017.
On April 6, 2017, the trial court issued an opinion. See Pa.R.A.P. 1925.
2 We note that Appellant filed a timely post-sentence motion for
reconsideration of sentence. (See Post-Sentence Motion, 9/01/16, at
unnumbered page 2); see also McAfee, infra at 275.
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challenges the discretionary aspects of the sentence imposed, he must present
“a substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005) (en
banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If an
appellant’s Rule 2119(f) statement meets these prerequisites, we determine
whether a substantial question exists. See Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.
2000). “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.” Id. (emphases in original).
[T]he 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. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013) (citations omitted).
Here, Appellant contends that the trial court abused its discretion by
relying on four withdrawn cases to justify the imposition of sentence. (See
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Appellant’s Brief, at 23-28). Appellant bases his claim on the following
discussions, which occurred prior to and after the imposition of sentence.
THE COURT: Well, I’m thinking I’ve already given you five chances
because this is our sixth hearing.
I reviewed your [p]re-[s]entence [r]eport, which I have
considered in this case. You have pled guilty before me on two
separate simple assaults; of course with the same victim. You
allegedly threatened to kill [the victim] and her unborn baby. You
assaulted her when she was pregnant. You were lodged at the
Allegheny County Jail. You were — you absconded from electronic
monitoring. You were arrested for new charges, which were
later dismissed. There was a review. You were in violation at
the time of the review. You failed to report. You failed to attend
Batterers Intervention and absconded from intermediate
punishment.
You also failed to report for regular drug testing and failed
to make any payment toward court costs in this case. You were
cited for failure to comply with special conditions, again, Batterers
Intervention program. You violated the no victim contact order
by choking and biting [the victim] and taking her cell phone.
She did fail to appear for those charges.
At the domestic violence curt [sic] case, you were ordered
to pass all drug tests, but, oh, no, the next day you tested
positive. You failed to notify your probation officer of a change of
address. Your whereabouts were unknown.
You failed to be of good behavior and were arrested four
times since I placed you on probation; three of these arrests
involve the same victim.
You are also in violation of a probation in front of Judge
Mariani. You, as I said, failed to abstain from the use of drugs,
and your excuse for doing all of these things wrong is that you
smoke marijuana.
Your history involves being adjudicated delinquent two
separate times, pleading guilty to a gun and a simple [assault]
charge as an adult, pleading guilty to a criminal conspiracy as an
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adult, having one, two, three — four assault charges [that] were
dismissed at the preliminary hearing. You have no
employment history whatsoever.
As a result, this [c]ourt concludes that you never did well on
supervision. I see no indication that you wished to rehabilitate
yourself. The [c]ounty can no longer supervise you and I feel that
you are a danger due to the combination of guns, drugs and
violence.
(N.T. Sentencing Hearing, 8/25/16, at 3-6) (emphases added). The court
then revoked Appellant’s probation and imposed the at-issue sentences.
Immediately thereafter, the court had the following exchange with a man in
the courtroom named Reverend Martin:
THE COURT: Yes, sir? Are you his father?
REVEREND MARTIN: No, ma’am. Not at all. My name is Reverend
Martin. I run a program —
THE COURT: I’m sorry, Reverend, step forward a little bit. I can’t
hear you.
REVEREND MARTIN: I run a program called Strength
Incorporated. We put guys like this into treatment.
We started in drug court with Judge Nauhaus years ago. So
drug court is about guys just like him that keeps coming in front
of you repeating, repeating, repeating, and one of the things —
he’s never seen me before. His mother is back there.
One of the things that I know is you can’t lock up a disease.
You know, get him some kind of treatment because it’s the same
thing over and over and over.
I never talked to this kid before, but I don’t want to see him
go down this road without him understanding that he has a
disease. It’s addiction.
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THE COURT: Yes. But, you know, I can’t lock him up because of
his disease. I can lock him up because he continues to beat
women.
REVEREND MARTIN: Correct.
THE COURT: Because he continues to carry a firearm. He is a
danger to everybody.
REVEREND MARTIN: I agree with you 150 percent, but —
THE COURT: I respect you and I heard Judge Nauhaus talk of you.
I hope that we can get actively involved, and maybe the next kid
that comes down the road, we'll divert him to you.
REVEREND MARTIN: Okay. Thank you very much.
THE COURT: Thank you for speaking up.
REVEREND MARTIN: Yes, ma'am.
Id. at 6-8.
Prior to reviewing the merits of this claim, we must determine if it is
properly before us. We note, “[i]ssues challenging the discretionary aspects
of sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
McAfee, supra at 275 (citations and internal quotations marks omitted). In
addition, Pennsylvania Rule of Criminal Procedure 708 provides that a motion
to modify sentence must be filed within ten days of the imposition of sentence
following the revocation of probation. See Pa.R.Crim.P. 708(E). As the
comment to Rule 708 explains:
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Issues properly preserved at the sentencing proceeding
need not, but may, be raised again in a motion to modify sentence
in order to preserve them for appeal. In deciding whether to move
to modify sentence, counsel must carefully consider whether the
record created at the sentencing proceeding is adequate for
appellate review of the issues, or the issues may be waived.
Pa.R.Crim.P. 708 cmt (citation omitted). Thus, an objection to a discretionary
aspect of a sentence is waived if not raised in a post-sentence motion or during
the sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745,
752 (Pa. Super. 2004) (holding challenge to discretionary aspect of sentence
was waived because appellant did not object at sentencing hearing or file post-
sentence motion).
Here, Appellant did not raise any objections to the sentence at
sentencing. (See N.T. Sentencing, at 6-8). While Appellant did file a post-
sentence motion for reconsideration, he did not allege the trial court relied on
impermissible factors in imposing sentence but only challenged the alleged
excessiveness of the sentence because of the trial court’s failure to consider
his rehabilitative needs. (See Motion to Reconsider Sentence, 9/01/16, at
unnumbered page 2). It is settled that an appellant waives any discretionary
aspects of sentence issue not raised in a post-sentence motion; also, an
appellant cannot raise an issue for the first time on appeal. See
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal
denied, 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put
sufficient reasons to justify sentence on record waived where issue was not
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raised in post-sentence motion); see also Pa.R.A.P. 302(a); Pa.R.Crim.P.
708(E). Thus, Appellant has waived this claim.
Moreover, although a claim that a trial court relied on improper factors
in imposing sentence raises a substantial question, see Commonwealth v.
Downing, 990 A.2d 788, 792 (Pa. Super. 2010), the claim here lacks merit.
It is settled law that a sentencing court can “consider a defendant’s prior
arrests which did not result in conviction, as long as the court recognizes the
defendant has not been convicted of the charges.” Commonwealth v. Fries,
523 A.2d 1134, 1136 (Pa. Super. 1987), appeal denied, 531 A.2d 427 (Pa.
1987) (citation omitted); see also Commonwealth v. P.L.S., 894 A.2d 120,
129-33 (Pa. Super. 2006), appeal denied, 906 A.2d 542 (Pa. 2006) (affirming
sentence where court considered uncharged allegations of sexual abuse).
Here, the sentencing court specifically acknowledged that it was aware
that the criminal conduct it discussed did not result in convictions. (See N.T.
Sentencing, at 4-5). The sentencing court’s later comment that Appellant
posed a danger because of “guns, drugs and violence” and its exchange with
Reverend Martin in no way vitiated its earlier remarks or in any way indicated
that the court improperly believed that Appellant had been convicted of the
offenses in question. (Id. at 6). The record supported this statement. (See
id. at 4-6). Moreover, this Court does not believe that it is proper to consider
the off-the-cuff remarks made after sentencing, particularly when those
remarks simply repeated the court’s earlier comments. (See id. at 7-8). In
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addition, the court never contradicted its earlier observations that the
subsequent charges against Appellant did not result in conviction. (See id.).
Further, even if we were to find that the sentencing court considered an
improper factor, we would still affirm because, even absent consideration of
that factor, the sentence is reasonable. See Commonwealth v. Smith, 673
A.2d 893, 896-97 (Pa. 1996) (upholding sentence despite trial court’s
consideration of improper factor where factor did not implicate “exercise of a
fundamental constitutional right[,]” and sentence was otherwise reasonable.).
Here, the sentencing court had the benefit of a Pre-Sentence Investigation
Report, and it detailed Appellant’s dismal record on probation. (See N.T.
Sentencing, at 3-6). Specifically, it noted that this was the sixth hearing in
this case, and pointed to Appellant’s failed and missed drug tests; his
absconding to avoid a drug test, failure to attend the Batterers Intervention
Program, lack of any payments on court costs, violating the no-contact order,
and other technical violations. (See id.). Thus, the sentence was reasonable
and “essential to vindicate the authority of court.” Edwards, supra at 327
(citations omitted).
Appellant also contends that the sentence was unreasonable because
the court failed to consider mitigating circumstances. (See Appellant’s Brief,
at 29-32). We disagree.
We note that a bald claim of an excessive sentence does not generally
raise a substantial question. See Commonwealth v. Dodge, 77 A.3d 1263,
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1269 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014). However,
this Court has held that a claim of excessiveness in conjunction with a claim
that the sentencing court did not consider mitigating factors presents a
substantial question. See Commonwealth v. Zeigler, 112 A.3d 656, 662
(Pa. Super. 2015). As discussed above, the record reflects that Appellant’s
sentence was both reasonable and necessary to vindicate the trial court’s
authority in light of Appellant’s repeated violations of probation. See
Edwards, supra at 327. Thus, Appellant’s claim lacks merit.
Accordingly, we find that Appellant’s claims are either waived or lack
merit.
Judgment of sentence affirmed.
Judge Dubow joins the Memorandum.
President Judge Emeritus Bender files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2018
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