J-A11026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS JAMES KOLLIAS :
:
Appellant : No. 1463 MDA 2018
Appeal from the Judgment of Sentence Entered August 3, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002330-2003
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 13, 2019
Appellant, Thomas James Kollias, appeals from the judgment of
sentence entered on August 3, 2018. We affirm.
On August 18, 2003, Appellant pleaded guilty to receiving stolen
property and criminal attempt to commit criminal trespass.1 That day, the
trial court sentenced Appellant to serve a term of one to two years in prison
for the receiving stolen property conviction, followed by a term of five years
of probation for the attempted criminal trespass conviction.
On April 1, 2010, April 16, 2013, and December 1, 2016, the trial court
revoked Appellant’s probation and, each time, the trial court resentenced
Appellant to serve a term of probation for the underlying attempted criminal
trespass conviction. See Probation Order, 4/1/10, at 1 (sentencing Appellant
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1 18 Pa.C.S.A. §§ 3925(a) and 901(a), respectively.
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to serve seven years of probation); Special Probation Order, 4/16/13, at 1
(sentencing Appellant to serve seven years of probation); Probation Order,
12/1/16, at 1 (sentencing Appellant to serve a term of four years of
probation).
On July 3, 2018, while Appellant was still on probation, the Court of
Common Pleas of Delaware County sentenced Appellant to serve a term of
four to 23 months in jail for a simple assault conviction. See N.T. Revocation
Hearing, 8/3/18, at 2. As a result of Appellant’s arrest and conviction, the
Commonwealth began revocation of probation proceedings against Appellant.
During the August 3, 2018 violation of probation hearing, Appellant
stipulated to violating his probation and the trial court resentenced Appellant
to serve a term of 20 months to five years in prison for the underlying
attempted criminal trespass conviction. Id. at 11.
On August 8, 2018, Appellant filed a timely motion to modify sentence.
In relevant part, Appellant’s motion to modify sentence declared:
6. [At the sentencing hearing,] the Adult Probation Office
recommended [that the trial court sentence Appellant to
serve] two to seven years in [a State Correctional Institution
(“SCI”)], with time credit of 405 days.
7. [Appellant] requested a county sentence, with 405 days
credit, followed by probation as the [trial] court deemed
appropriate.
8. [The trial] court then sentenced [Appellant] to a term of
imprisonment of 20 months to [five] years SCI, with 405 days
credit. . . .
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9. [Appellant] is requesting probation to follow the probation
that he already will be serving in Delaware [County], or in
the alternative, a county sentence followed by probation.
...
11. [Appellant] requests that the [trial] court consider the
following factors in regard to sentencing:
a. [Appellant] will be on supervision for an extended
amount of time in Delaware County due to the sentence
on the new charges, and the . . . [sentences at other
docket numbers].
b. [Appellant] has significant mental health issues that
require treatment and medication and if [Appellant] is
sent to state prison, he will likely decompensate and not
receive the treatment that he would be able to obtain on
county supervision.
c. [Appellant] is required to enroll in treatment within 10
days of release from Delaware County and will also have
drug and alcohol, psychological and psychiatric
evaluations as part of his Delaware County supervision.
WHEREFORE, [Appellant] prays that [the trial court] consider
his petition requesting a modification of the sentence
imposed upon him, and that [the trial court] reduce and
modify the sentence imposed upon him.
Appellant’s Motion to Modify Sentence, 8/8/18, at 2-3 (emphasis and some
capitalization omitted).
On August 27, 2018, the trial court denied Appellant’s motion to modify
sentence. Trial Court Order, 8/27/18, at 1. Appellant filed a timely notice of
appeal on August 31, 2018. Appellant raises the following claims in his brief:
A. Appellant’s re-sentence of [20] months to [five years’]
incarceration was a manifest abuse of discretion due to the
overall excessiveness of his sentence from a 2003 conviction.
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1. The trial court failed to comply with 42 Pa.C.S.A.
§ 9771(b) when imposing sentence.
2. Using the factors in 42 Pa.C.S.A. § 9781(d), [the
Superior] Court should vacate the sentence because the
specific circumstances make this sentence manifestly
unreasonable.
a. Under 42 Pa.C.S.A. § 9781(d)(1), the
circumstances of the case and Appellant’s history of
severe mental illnesses merit considerable weight in
overturning his sentence.
b. The [trial] court’s findings pursuant to 42 Pa.C.S.A.
§ 9781(d)(3) were insufficient to justify the sentence
imposed.
3. Appellant’s re-sentence was disproportional and
contrary to fundamental sentencing norms.
4. Appellant asks this [Court] to consider the controversy
surrounding perpetual probation as a factor in finding
abuse of discretion.
Appellant’s Brief at i-ii (emphasis omitted).
Appellant’s claims challenge the discretionary aspects of his sentence.
See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the
trial court erred in imposing an excessive sentence is a challenge to the
discretionary aspects of a sentence). We note that, in an appeal following the
revocation of probation, our scope of review includes discretionary aspects of
sentencing claims. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc). With respect to our standard of review, we have held
that “sentencing is a matter vested in the sound discretion of the sentencing
judge, whose judgment will not be disturbed absent an abuse of discretion.”
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).
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Moreover, pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
As this Court has explained:
[t]o 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,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
Pa.R.Crim.P. [708(E)]; (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); see also
Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of
a sentence [following the revocation of probation] 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”); Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a
new sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a [motion to modify] sentence”).
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The claims Appellant advances in his brief were not raised at the
resentencing hearing or in Appellant’s motion to modify his sentence. 2 See
N.T. Revocation Hearing, 8/3/18, at 11-12; Appellant’s Motion to Modify
Sentence, 8/8/18, at 1-3; N.T. Motion to Modify Sentence Hearing, 8/27/18,
at 1-5; Pa.R.Crim.P. 708(E). Therefore, Appellant waived the discretionary
aspects of sentencing claims he currently raises on appeal. Cartrette, 83
A.3d at 1042.
Moreover, even if Appellant had properly preserved his current claims
(which he did not), the claims would fail. Since Appellant was sentenced
following the revocation of probation, the sentencing guidelines do not apply
to Appellant's sentence. 204 Pa.Code § 303.1(b); Commonwealth v.
Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). Nevertheless, in sentencing
Appellant, the trial court was required to “consider the general principles and
____________________________________________
2 We note that, in both Appellant’s brief and motion to modify sentence,
Appellant premised a claim for relief upon his “significant mental health
issues.” However, the claims are materially distinct. Specifically, in
Appellant’s brief, Appellant argued that his sentence is manifestly excessive
(in part) because his “mental health condition[s] clearly inhibit his ability to
adhere to probation conditions” and his recidivism “indicate[s] a legitimate
mental disability that is beyond Appellant’s ability to change or control.”
Appellant’s Brief at 23-24. Appellant did not raise this mens rea claim in his
motion to modify sentence. Rather, within Appellant’s motion to modify
sentence, Appellant argued only that his mental health issues favored
probation because his mental health issues “require treatment and medication
and if [Appellant] is sent to state prison, he will likely decompensate and not
receive the treatment that he would be able to obtain on county supervision.”
Appellant’s Motion to Modify Sentence, 8/8/18, at 2. Therefore, the claim
raised in Appellant’s motion to modify sentence did not preserve the claim
Appellant raised in his brief to this Court.
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standards of the Sentencing Code.” Commonwealth v. Russell, 460 A.2d
316, 322 (Pa. Super. 1983). Section 9721 expresses these general principles
in the following manner:
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).
Further, as we have held:
In addition to issuing a sentence 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,” a [violation of
probation (“VOP”)] court must also consider, for example,
whether the sentence imposed is “essential to vindicate the
authority of the court,” and must give “due consideration . .
. to the time spent serving the order of probation.”
Commonwealth v. Derry, 150 A.3d 987, 994 (Pa. Super. 2016) (corrections
omitted), quoting 42 Pa.C.S.A. §§ 9721(b) and 9771.
“The determination of whether a particular case raises a substantial
question is to be evaluated on a case-by-case basis. Generally, however, in
order to establish that there is a substantial question, the appellant must show
actions by the sentencing court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing process.”
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted). “When considering the merits of a discretionary aspects of
sentencing claim, we analyze the sentencing court's decision under an abuse
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of discretion standard.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.
Super. 2015). “An abuse of discretion is more than just an error of judgment
and, on appeal, a trial court will not be found to have abused its discretion
unless the record discloses that the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.”
Commonwealth v. Lane, 424 A.2d 1325, 1328 (Pa. 1981) (quotations
omitted).
Appellant claims: 1) “the new sentence was manifestly unreasonable
considering the circumstances of this case,” as the trial court failed to give
adequate weight to Appellant’s “severe mental health issues;” 2) the trial
court “failed to consider 42 Pa.C.S.A. § 9771(b) when imposing total
confinement,” in that the trial court failed to give “due consideration . . . to
the time [Appellant] spent serving the order of probation;” 3) the “re-sentence
violates the general sentencing principles in 42 Pa.C.S.A. § 9721(b) because
it was disproportional to the violations;” and, 4) the trial court’s “findings
pursuant to 42 Pa.C.S.A. § 9781(d)(3) were insufficient to justify the sentence
imposed.”3 See Appellant’s Brief at 15-31.
____________________________________________
3 Appellant’s final numbered sub-claim – requesting that this Court “consider
the controversy surrounding perpetual probation as a factor in finding abuse
of discretion” – reiterates his claim that the trial court “failed to consider 42
Pa.C.S.A. § 9771(b) when imposing total confinement,” in that the trial court
failed to give “due consideration . . . to the time [Appellant] spent serving the
order of probation.” See Appellant’s Brief at 30.
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Even if the claims were preserved and presented substantial questions
for our review, the claims would fail. We will consider the first three numbered
claims together.
First, at sentencing, the trial court was well aware of – and thoroughly
considered – Appellant’s mental health issues and the time Appellant spent
serving the prior orders of probation. See N.T. Sentencing, 8/3/18, at 5-6
(Appellant’s attorney informed the trial court of Appellant’s mental health
problems); N.T. Sentencing, 8/3/18, at 3-4 (the Commonwealth noted
Appellant’s prior time serving probation); c.f. Commonwealth v. Rhoades,
8 A.3d 912, 919 (Pa. Super. 2010) (holding that, when “the sentencing court
had the benefit of a pre-sentence investigation report, we can assume the
sentencing court was aware of relevant information regarding the defendant's
character and weighed those considerations”). Further, the trial court
meticulously weighed the facts and considered the necessary statutory factors
when it sentenced Appellant to serve a term of 20 months to five years in
prison. As the trial court explained:
Considering the procedural history, the recommendation of
both Commonwealth and [Appellant], the allocution of
[Appellant] and his background, as well as balancing the
punitive needs of the Commonwealth with the rehabilitative
needs of [Appellant] and his inability to succeed with the
lesser restrictions of probation, the sentence imposed is not
manifestly excessive nor grossly disproportionate to the
crime and is supported by the record. It should [] be noted
that the sentence imposed was a lesser minimum sentence
than requested by the supervising probation officer. The
sentence was also imposed concurrently with [Appellant’s]
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new Delaware County conviction in light of the court's
concern with the potential issue of aggregation of sentences.
The court is permitted to revoke an order of probation upon
proof of the violation of specified conditions and has available
all the sentencing alternatives that existed at the time of
initial sentencing. While due consideration should be given
to the time spent serving the order of probation, it is one of
many factors to consider. Although not required, the court
considered the traditional sentencing factors, including the
likelihood that probation with its lesser restrictions could
rehabilitate [Appellant]. 42 Pa.C.S.A. § 9771(c) permits total
confinement upon probation revocation. It lists three factors
that indicate the appropriateness of incarceration. The
existence of any one of them shows the appropriateness of
the type of sentence imposed on [Appellant]. In this case,
all the listed factors existed on some level for him, weighing
in favor of total confinement. First, [Appellant] was convicted
of a new crime. Second, the conduct of [Appellant] over the
time since August of 2003 shows that it is likely that he will
commit another crime if he is not imprisoned, having three
new convictions in addition to technical violations.
[Appellant] himself stated that he wasn't sure he could ever
finish a term of probation. Third, total incarceration is
appropriate when such a sentence is essential to vindicate
the authority of the court. [Appellant] was given four
opportunities to comply with a probationary sentence before
incarceration was imposed. He was given repeated
opportunities to comply and was unable to comply with the
conditions of probation, most importantly to remain crime
free. To impose another term of probation would undermine
the authority of the court. [At sentencing, the] trial court
noted, “I have cut you some amazing breaks already with
regard to this docket. And nevertheless, you have kept
getting into difficulties, so I don't see any choice but to in fact
impose a state sentence this time around.”
The trial court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of
the individual circumstances before it. This is the basis for
the broad discretion afforded to trial court judges. When
considering the nature and circumstances of the offense and
the history and characteristics of [Appellant] and the multiple
opportunities the sentencing court had to observe [him],
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there is no basis to conclude there was an abuse of discretion.
The sentence entered in this case is not manifestly excessive
nor grossly disproportionate to the actions of [Appellant].
Sufficient reasons for the imposition of the sentence were
placed on the record. The court's exercise of judgment was
not manifestly unreasonable when contrasted to the facts,
the guidelines, and the history of violations by [Appellant].
The age of the original docket or the probation previously
imposed were not ignored in this case. [Appellant’s]
allocution was carefully considered. [Appellant] indicated his
belief that he could never complete a term of probation;
indicating that probation would essentially be setting him up
for additional failure. A sentence of incarceration was
appropriate.
Trial Court Opinion, 7/5/19, at 4-6 (some citations omitted).
The trial court’s careful analysis demonstrates that it carefully weighed
the totality of the facts and the necessary statutory factors prior to imposing
sentence. The sentence the trial court imposed was not “manifestly
unreasonable” – and it certainly cannot be said that the sentence was “the
result of partiality, prejudice, bias or ill-will.” See Lane, 424 A.2d at 1328.
As such, the trial court did not abuse its discretion when it sentenced Appellant
to serve a term of 20 months to five years in prison.
Finally, Appellant claims that the trial court abused its discretion when
it provided a “terse” and “insufficient” reason for his sentence during the
sentencing hearing. See Appellant’s Brief at 25-26. This claim fails.
During the sentencing hearing, the trial court declared:
I had the sheet that had the docket for the Delaware County
[conviction]. . . . The sentence in this matter takes into
consideration all of the information provided, as well as the
history of this charge. [Appellant,] there [are] two problems
that I have. One would be the problem of aggregation if I
gave you even a county sentence, it would probably
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aggregate into a state sentence. The second is I have cut
you some amazing breaks already with regard to this docket.
And[,] nevertheless, you have kept getting into difficulties so
I don’t see any choice but to in fact impose a state sentence
this time around.
Sentence will be based upon the violations of the prior
probation and the history. The sentence is that you shall be
committed for a period of not less than 20 months, no more
than five years to the Bureau of Corrections for confinement
in a state correctional facility. . . . This sentence will be
effective today, and will be concurrent with the sentence
imposed at [the Delaware County docket].
N.T. Sentencing Hearing, 8/3/18, at 11.
As our Supreme Court explained:
At initial sentencing, all of the rules and procedures designed
to inform the court and to cabin its discretionary sentencing
authority properly are involved and play a crucial role.
However, it is a different matter when a defendant reappears
before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a
probationary sentence.
...
42 Pa.C.S. § 9721(b) specifies that in every case following
the revocation of probation, “the court shall make as a 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.” See also Pa.R.Crim.P. 708(C)(2)
(indicating at the time of sentence following the revocation of
probation, “[t]he judge shall state on the record the reasons
for the sentence imposed.”).
However, following revocation, a sentencing court
need not undertake a lengthy discourse for its reasons
for imposing a sentence or specifically reference the
statutes in question. Simply put, since the defendant
has previously appeared before the sentencing court,
the stated reasons for a revocation sentence need not
be as elaborate as that which is required at initial
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sentencing. The rationale for this is obvious. When
sentencing is a consequence of the revocation of probation,
the trial judge is already fully informed as to the facts and
circumstances of both the crime and the nature of the
defendant, particularly where, as here, the trial judge had the
benefit of a PSI during the initial sentencing proceedings.
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (emphasis
added) (footnote omitted).
It is true that, during Appellant’s sentencing hearing, the trial court’s
record statement for imposing the sentence was not as detailed and elaborate
as it might have been for an initial sentence. However, under our Supreme
Court’s precedent, it did not need to be. Id. Here, the trial court complied
with 42 Pa.C.S.A. § 9721(b) by placing “a statement of the reason or reasons
for the sentence imposed” on the record. See 42 Pa.C.S.A. § 9721(b);
Pasture, 107 A.3d at 27-28. Appellant’s claim that the statement was “terse”
or “insufficient” fails under our Supreme Court’s holding in Pasture.
We thus conclude that, even if Appellant had not waived his claims on
appeal, the claims would have failed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2019
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