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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIC ELROD, : No. 2634 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, July 22, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0011460-2011
BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 18, 2018
Eric Elrod appeals the judgment of sentence entered by the Court of
Common Pleas of Philadelphia County following revocation of probation as a
result of his conviction for robbery, conspiracy to commit robbery,
possession of a firearm with an altered manufacturer number, prohibited
possession of a firearm, and for violation of his probation.1 After careful
review, we affirm.
The pertinent facts and procedural history, as recounted by the trial
court, are as follows:
On March 30, 2015, [appellant] entered into a
negotiated guilty plea and was immediately
sentenced, in accord with the plea agreement[.]
[Appellant] was sentenced to a period of
1 18 Pa.C.S.A. §§ 3701(a)(I)(ii), 903(c), 6110.2(a), and 6105(a)1),
respectively.
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confinement in a county correctional facility of 11½
to 23 months followed by 10 years[’] probation on
the Possession of a Firearm with altered serial
number charge. On the remaining charges he was
sentenced to concurrent periods of probation of
10 years on the Conspiracy charge, 8 years on the
Possession of a Firearm Prohibited and 10 years on
the Robbery charge. Thus, [appellant] was
sentenced to an aggregate sentence of confinement
of 11½ to 23 months followed by 10 years[’]
probation.
At his VOP [“Violation of Probation”] hearing
held on May 11, 2016, [appellant] stipulated to his
being in direct violation of his probation, requesting
that a Pre-Sentence Investigation (PSI) report be
ordered in advance of sentencing. On July 22, 2016,
[appellant] was sentenced to a period of confinement
in a state correctional facility of 5 to 10 years on the
Conspiracy charge. On each of the remaining
charges, [appellant] was also sentenced to
concurrent periods of probation of 10 years, to be
served consecutively to his period of confinement,
for an aggregate sentence of confinement of 5 to
10 years followed by 10 years[’] probation. On
July 27, 2016, the Defender Association of
Philadelphia (“Defender”) filed a “Petition to Vacate
and Reconsider Sentence” on behalf of [appellant],
which the Court denied without a hearing on
August 30, 2016.
On August 17, 2016, [appellant] timely filed
the instant pro se appeal to the Superior Court of
Pennsylvania, attaching his “Statement of Facts on
Appeal.”[2] On September 7, 2016, this Court filed
and served on [appellant] an Order, pursuant to
Rule 1925(b) of the Pennsylvania Rules of Appellate
2 We note that appellant’s pro se notice of appeal was prematurely filed, as
appellant filed that notice prior to the trial court’s disposition of appellant’s
counseled petition to vacate and reconsider sentence. Because the trial
court denied appellant’s petition to vacate and reconsider sentence and
because appellant is represented by counsel on appeal, we will excuse the
procedural irregularity and address appellant’s appeal on the merits.
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Procedure, directing [appellant] to file and serve a
Statement of Errors Complained of on Appeal, within
21 days of the Court’s Order. On September 28,
2016, both Mr. Damian M. Sammons, Esq., and the
Defender simultaneously filed statements of error on
behalf of [appellant]. On March 23, 2017, the
Defender filed a “Supplemental Statement of Errors
Complained of on Appeal,” on behalf of [appellant].
On April 13, 2017, the Court, after a hearing,
ordered that Mr. Sammons be removed as counsel
and that the Defender continue it[s] representation.
Mark Cichowicz, Esq., representing the Defender[3]
advised the Court that they wished to proceed on
their supplemental statement of errors.
Trial court opinion, 5/1/17 at 2-3. The trial court filed its opinion pursuant
to Pa.R.A.P. 1925(a).
The trial court explained its reasoning for the sentence:
The original charges leading to [appellant’s]
plea arose out of his planning and participating in the
gun point robbery of a pizza shop. As a result of his
plea agreement, he was placed on immediate parole
subject to eight years[’] probation. The record
reveals that [appellant] was arrested in Dauphin
County on June 22, 2015, less than ninety days after
his plea, and charged with numerous PWID
[(“Possession with Intent to Deliver”)] related
charges. He entered into a negotiated plea to these
charges on April 19, 2016, resulting in a direct
violation of his probation.
Prior to imposing sentence, the Court reviewed
[appellant’s] criminal history, his PSI, heard
argument of counsel and considered [appellant’s]
allocution. The PSI report specifically stated[:]
“Given [appellant’s] lengthy criminal history, the
nature of his offenses, and apparent inability to stay
arrest free, he does not appear to be a good
candidate for community supervision at the present
3 Mark Cichowicz, Esq., works for Defender.
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time.” In considering [appellant’s] criminal history,
the Court noted for the record: “If I do not send him
to prison for a considerable amount of time, what
message does that send to the community? That --
I mean, he’s a one-man crime wave. He just has no
boundaries, whether it’s children, whether it’s
women. If I don’t send him to prison for a
considerable amount of time, I have to be concerned
about what that says to the community. . . Also, I
think the community deserves some respite from
your client, some period of time when he’s not going
to be preying upon them in various ways . . . when
we were here in March of last year, he was given a
second chance. You know, despite your prior record,
despite the seriousness of these charges, a little bit
of county time and then just, please, try to stay out
of trouble, and he couldn’t do it.” ([Notes of
testimony], 7/22/16 [at] 23, [2]4[.])
Immediately prior to imposing sentence the
Court noted for the record, “I can’t reinstate your
probation, I mean, I just can’t do it because of your
criminal history and a direct violation. I mean, you
pled guilty to that Dauphin County case. Whatever
your reason was, you pled guilty, so . . . But I do
think you’re well spoken, you’re intelligent, and I’m
not going to put you away for as long as I originally
intended. But you are going to state prison.” ([Id.
at] 31[.])
Trial court opinion, 5/1/17 at 6-7.
Appellant raises the following issue for this court’s review:
Did not the court err by imposing an unduly harsh,
manifestly excessive and unreasonable punishment,
in contravention of the general standards set forth
by 42 Pa.C.S.A. § 9721, when it sentenced
[appellant] to a term of total incarceration in a state
institution for an aggregate term of 5 to 10 years,
with a consecutive 10-year term of probation, after
failing to adequately examine and consider
[appellant’s] background, character and
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rehabilitative needs, and the circumstances of his
violation?
Appellant’s brief at 3.
Our standard of review is well settled:
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. An abuse
of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015), quoting
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015). See also Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of
review in an appeal from a revocation sentencing includes discretionary
sentencing challenges).
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.[A.]
§ 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
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(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.[A.] § 9771(c).
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note
that the sentencing guidelines do not apply to sentences imposed as the
result of probation revocations. Id. at 27 (citations omitted).
An appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no
absolute right to do so but, rather, must petition this
Court for permission to do so. [Commonwealth v.
Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
42 Pa.C.S.A. § 9781(b). Specifically, the appellant
must present, as part of the appellate brief, a
concise statement of the reasons relied upon for
allowance of appeal. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f). In that statement, the appellant
must persuade us there exists a substantial question
that the sentence is inappropriate under the
sentencing code. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f).
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).
In general, an appellant may demonstrate the
existence of a substantial question by advancing a
colorable argument that the sentencing court’s
actions were inconsistent with a specific provision of
the sentencing code or violated a fundamental norm
of the sentencing process. Malovich, 903 A.2d at
1252. While this general guideline holds true, we
conduct a case-specific analysis of each appeal to
decide whether the particular issues presented
actually form a substantial question. Id. Thus, we
do not include or exclude any entire class of issues
as being or not being substantial. Id. Instead, we
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evaluate each claim based on the particulars of its
own case. Id.
Id. at 289-290.
Appellant included a statement of reasons for allowance of appeal from
discretionary aspects of sentence. Appellant avers that the trial court
violated the express provisions of the Sentencing Code and imposed a
manifestly excessive and unreasonable sentence contrary to the
fundamental norms that underlie the sentencing process. Commonwealth
v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Specifically, appellant alleges
that the trial court failed to adequately consider the steps he has made
toward his rehabilitation and that he was actually innocent of the offense
that constituted his direct violation of probation but he pled guilty as part of
a plea agreement that would keep him out of jail. (Appellant’s brief at 12.)
Appellant does not deny that he was convicted of the crimes in Dauphin
County.
The trial court stated that it received a pre-sentence investigation
report. (Trial court opinion, 5/1/17 at 6.) “[W]here the trial court is
informed by a pre-sentence report, it is presumed that the court is aware of
all appropriate sentencing factors and considerations[.]” Commonwealth
v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009). As a result, the trial
court was aware of any steps appellant had undertaken toward his
rehabilitation. The only possible violation of the Sentencing Code mentioned
by appellant is the court’s failure to consider appellant’s character and
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background. It is presumed that the trial court did so. In fact, the trial
court stated that it imposed a lesser sentence than it originally considered
because appellant was “well-spoken and intelligent.” (Notes of testimony,
7/22/16 at 31.) Further, allegations that a sentencing court failed to
consider certain factors do not constitute a substantial question.
Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa.Super. 2000),
overruled on other grounds by Commonwealth v. Mouzon, 812 A.2d
617 (Pa. 2002). Additionally, while appellant claims that he was innocent of
the crime that violated his probation, he pled guilty to it. Therefore, he has
been convicted of a crime and is eligible for total confinement. 42 Pa.C.S.A.
§ 9771(c)(1).
This court concludes that appellant failed to establish a substantial
question that the trial court’s decision violated the Sentencing Code or a
fundamental norm of the sentencing process. As a result, this court need
not consider the merits of appellant’s argument.4
Judgment of sentence affirmed.
4 Where the appellant claims the trial court failed to consider certain factors
and impose an individualized sentence, it can raise a substantial question.
See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015).
On the other hand, “this court has held on numerous occasions that a claim
of inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Matroni, 923 A.2d 444, 455
(Pa.Super. 2007).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/18
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