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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEITH M. MILLS :
:
Appellant : No. 3476 EDA 2017
Appeal from the Judgment of Sentence, September 28, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005653-2016
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 29, 2019
Keith Mills appeals from the judgment of sentence imposed following
revocation of his parole and probation. Mills contends that his sentence
exceeded the remaining time he had left to serve on his original sentence,
i.e., back time, and as a result, the trial court abused its discretion in
sentencing him. Upon review, we affirm.
The trial court summarized the pertinent facts and procedural history of
this case as follows:
On May 11, 2017, [Mills] pled guilty to one count each of
Alteration of Destruction of Vehicle Identification Number [18
Pa.C.S.A. § 7703], Disposition of Vehicle or Vehicle Part with
Altered Vehicle Identification Number [18 Pa.C.S.A. § 7704] and
Receiving Stolen Property [18 Pa.C.S.A. § 3925]. In accordance
to the negotiated plea, a concurrent sentence of nine (9) to
twenty-three (23) months of incarceration to be served on house
arrest followed by one year of probation was imposed on each
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* Former Justice specially assigned to the Superior Court.
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charge. One Thousand Five Hundred ($1,500.00) Dollars
restitution was also ordered. No appeal was taken.
On August 24, 2017, this [c]ourt granted [Mills’] motion to
modify house arrest thereby permitting [Mills] to leave the house
for work Monday through Friday from 8:00 am to 5:00 pm. On or
about August 28, 2017, this Court was notified that [Mills] had
violated probation [by testing positive for illegal drugs on four
separate occasions and by failing to provide required
documentation about his businesses]. Following a hearing on
September 28, 2017, [Mills] was found to be in violation of parole
and probation. [Mills’ parole was revoked.] Probation was [also]
revoked and [Mills] was sentenced to [concurrent terms] of two
(2) to five (5) years of incarceration followed by two (2) years of
probation [for disposition of a vehicle or vehicle part with altered
vehicle serial number and theft by receiving stolen property; no
sentence was imposed for alteration or destruction of vehicle
identification number].
***
On October 6, 2017, a Petition to Reconsider Sentence was
filed. On October 18, 2017, the motion for reconsideration was
denied. On October 23, 2017, [Mills] filed a timely notice of
Appeal. A Statement of Errors Complained of on Appeal pursuant
to Pa.R.A.P. Rule 1925(b) was ordered on October 30, 2017. On
November 16, 2017, a Statement of Errors Complained of on
Appeal was filed.
Trial Court Opinion, 6/12/18, at 1-2 (footnotes omitted). The trial court issued
an opinion in accordance with Pa.R.A.P. 1925(a).
On appeal, Mills raises the following issue:
I. Whether Mills’ sentence for violation of probation which
exceeded his backtime constitutes an abuse of discretion.
See Mills’ Brief at 4.
Mills contends that the trial court’s sentence imposed following the
revocation of his parole and probation, “was illegal, excessive, and an abuse
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of discretion.” Mills’ Brief at 7. His claim concerns both the legal and
discretionary aspects of his sentence. We first address the legality of Mills’
sentence.
“A claim that implicates the fundamental legal authority of the court to
impose a particular sentence constitutes a challenge to the legality of the
sentence.” Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010)
(en banc ). “If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence must be
vacated.” Id. (quoting Commonwealth v. Watson, 945 A.2d 174, 178–79
(Pa. Super. 2008)). Likewise, a sentence that exceeds the statutory
maximum is illegal. Commonwealth v. Bradley, 834 A.2d 1127 (Pa. Super.
2003). If a court “imposes a sentence outside of the legal parameters
prescribed by the applicable statute, the sentence is illegal and should be
remanded for correction.” Commonwealth v. Vasquez, 744 A.2d 1280,
1284 (Pa. 2000). “Issues relating to the legality of a sentence are questions
of law . . . .” Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super.
2008), appeal denied, 955 A.2d 356 (2008). As with all questions of law on
appeal, our “standard of review is de novo and our scope of review is plenary.”
Id.
In support of the claim that his sentence was illegal, Mills argues that at
the time of his violation, he was on parole. As a result, the trial court should
only have recommitted Mills for the time remaining on his original sentence,
nine (9) to twenty-three (23) months, for violating his parole. Mills’ Brief at
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8. Because the court sentenced him to more than that, he claims his sentence
was illegal.1 Mills’ Brief at 6. We disagree.
Mills correctly argues that, upon revocation of parole, the only option
available to the court is recommitment to serve the balance of the term initially
imposed. Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super.
2008); Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999).
There is no authority for imposing a new sentence with a minimum and
maximum. Ware, 737 A.2d at 253 (citing Commonwealth v. Mitchell, 632
A.2d 934, 936 (Pa. Super. 1993)). However, as in Ware, this matter did not
involve only revocation of Mills’ parole. Importantly, the sentence imposed
here was based also upon the revocation of Mills’ probation.2
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1 In parole revocation cases, our standard of review is limited to whether the
revocation court erred, as a matter of law, in deciding to revoke parole and,
therefore, to recommit the defendant to confinement. Commonwealth v.
Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008). We, note, however, that
Mills does not challenge the revocation of his parole, but only the length of his
sentence. In fact, Mills conceded that he violated his supervision.
2 Generally, the imposition of a sentence following the revocation of probation
is vested with the sound discretion of the trial court. Absent an abuse of
discretion this Court will not disturb its conclusion. Commonwealth v.
Hoover, 909 A.2d 321, 322 (Pa. Super. 2006). Following probation violation
proceedings, this Court's scope of review is limited to verifying the validity of
the proceeding and the discretionary and legal aspects of the sentence
imposed. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.
2013).
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Mills argues, however, that he could not have violated his probation
because the violation occurred while he was on parole; he had not yet started
serving his probation. Mills’ Brief at 9. He further argues, without citation to
any authority, that even under a theory of anticipatory revocation of
probation, he must have been in direct violation of probation, i.e. committed
a new offense, and not merely in violation for technical reasons. Id. Again,
we disagree.
Although the violation occurred during Mills’ parole period, and he had
not yet begun to serve the probationary portion of his sentence, the court,
nonetheless, had the authority to revoke his probation. In Ware, this Court
reasoned:
[F]or revocation purposes the term of probation include[s] the
time beginning when probation was granted . . . . If, at any time
before the defendant has completed the maximum period of
probation, or before he has begun service of his probation,
he should commit offenses of such nature as to demonstrate to
the court that he is unworthy of probation and that the granting
of the same would not be in subservience to the ends of justice
and the best interests of the public, or the defendant, the court
could revoke or change the order of probation. A defendant on
probation has no contract with the court. He is still a person
convicted of crime, and the expressed intent of the [c]ourt to have
him under probation beginning at a future time does not ‘change
his position from the possession of a privilege to the enjoyment of
a right.’ Burns v. United States, 287 U.S. 216, 222 (1932).
Ware, 737 A.2d at 253-54 (quoting Commonwealth v. Dickens, 475 A.2d
141 (Pa. Super. 1984)) (emphasis in original).
Moreover, contrary to Mills’ argument, the type of violation need not be
a direct violation, i.e., a criminal offense. It is well settled that probation may
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be revoked for conduct that does not constitute criminal behavior. See
Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010). Rather,
“‘[a] probation violation is established whenever it is shown that the conduct
of the probationer indicates the probation has proven to have been an
ineffective vehicle to accomplish rehabilitation and not sufficient to deter
against future antisocial conduct.’” Id. Taking these principles, in conjunction
with the principles espoused in Dickens, we conclude that Mills did not need
to commit a crime for the trial court to revoke his probation prior to its
commencement.
We reached a similar conclusion in Hoover, supra. There, this Court
rejected the defendant’s argument that, in order for the court to revoke his
probation before it commenced, he must have been committed a new criminal
offense. Instead, the trial court properly revoked the defendant’s probation
for being intoxicated while on work release, which was prohibited under the
terms of his probation. Although the defendant did not violate the law, he
violated the conditions of his probation. Hoover, 909 A.2d at 324.
Likewise, contrary to Mills’ contention, his behavior was sufficient to
justify revocation of his probation even though it had not yet started.
Although Mills was not charged or convicted of any new crimes, he tested
positive for marijuana on several occasions and failed to provide required
documentation of his business activities, both of which violated the terms of
his probation.
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Furthermore, the trial court found that Mills “has shown that probation
was an ineffective vehicle and of no deterrence to him” and specified the
reasons for its finding. Trial Court Opinion, 6/12/18, at 8. Therefore, the trial
court did not abuse its discretion when it revoked Mills’ probation.
Once the court revoked Mills’ probation, the court had the same
sentencing options available that existed at the time of the original sentencing.
Ware, 737 A.2d at 254 (citing Commonwealth v. Smith, 669 A.2d 1008,
1011 (Pa. Super. 1996). The trial court stated:
For the crimes of Alteration or Destruction of Vehicle Identification
Number, Disposition of Vehicle or Vehicle Part with Altered Vehicle
Identification Number and Receiving stolen Property, each of
which carries an offense gravity score of five (5), the maximum
penalty under the statute is seven (7) years. Here, [Mills] was
sentenced under the maximum sentence allowed under the law.
Trial Court Opinion, 6/12/18, at 6. The court clearly had the authority to
impose the sentence it did. The trial court noted: Mills “having violated the
conditions of his parole/probation, was placed in the same position that he
was in at the time of his original conviction, and this [c]ourt had the statutory
authority to sentence [Mills] to a term of total confinement up to seven
years on each of the charges to which he had plead guilty.” Id. at 7
(emphasis added). The sentence imposed by the trial court was well within
the parameters permitted under the law.
We observe, however, as we did in Ware, the procedure employed by
the court was to sentence Mills directly on the revocation of probation. We
observe, however, as we did in Ware, that the better approach would have
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been to specify that the sentence imposed required Mills to serve the
remainder of his back time on the parole violation, followed by a consecutive
sentence for revocation of probation which, when added to the back time
remaining from the original sentence, would equal or fall within the statutory
maximum. See Ware, 737 A.2d at 254. However, the trial court’s failure to
specify Mills’ sentence in these exact terms did not render the sentence illegal.
See id. The court’s statements and sentencing scheme indicate that it
intended to impose a lengthier sentence of imprisonment for Mills’ probation
violation. Based on Mills’ behavior, the court had the authority to do so and
the resentencing was not illegal. Consequently, as in Ware, we need not
remand for a clarification of Mills’ sentence because the intended result is
apparent.
Next, we address Mills’ challenge to the discretionary aspect of his
sentence. Mills argues that his sentence was unreasonably excessive
considering the circumstances surrounding his violation. Specifically, Mills
argues that he was not convicted of another crime, but rather was only found
to be in technical violation of his probation for positive drugs tests. According
to Mills, rehabilitation through a drug treatment or other rehabilitative
program would be more appropriate for such a minor offense instead of
incarceration. Mills’ Brief at 8.
An appellant challenging the discretionary aspects of a probation-
revocation sentence “has no absolute right to do so but, rather, must petition
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this Court for permission to do so.” Kalichak, 943 A.2d at 289. This Court
has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, Pa.R.A.P. 902 and 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
(3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f);
and (4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42
[Pa.C.S. § 9781(b)].
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
Here, as argued by the Commonwealth, Mills’ brief did not include a
concise statement of the reasons relied upon for allowance of appeal pursuant
to Pa.R.A.P. 2119(f). See Commonwealth’s Brief at 7, 9-10. Where an
appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth
objects, the issue is waived for purposes of review. Commonwealth v.
Montgomery, 861 A.2d 304, 308 (Pa. Super. 2004). Accordingly, Mills has
waived this issue for review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/19
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