J-S35021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RASHON LYLES
Appellant No. 1289 EDA 2018
Appeal from the Judgment of Sentence Entered March 29, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0012088-2009
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2019
Appellant, Rashon Lyles, appeals from the March 29, 2018 judgment of
sentence of 2½ to 5 years of incarceration imposed after his violation of
probation (“VOP”). We affirm.
The trial court recited the pertinent factual and procedural history:
On May 22, 2013, [Appellant] appeared before this [c]ourt
and entered into an open plea agreement on the charges of
possession with intent to deliver a controlled substance (PWID);
one violation of the Uniform Firearms Act (VUFA), § 6106:
carrying a firearm without a license; and criminal conspiracy. The
matter was demandatorized and [Appellant] was sentenced to 5
years reporting probation on each charge, to run concurrently with
one another. [Appellant] was ordered to find employment, stop
selling drugs, and pay costs and fees at a rate of $35 per month.
On August 21, 2013, [Appellant] appeared before this
[c]ourt for a status hearing. [Appellant] did not have a job and
had not made any payments toward his costs and fees.
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* Retired Senior Judge assigned to the Superior Court.
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[Appellant] was attending drug treatment at Wedge. Although
[Appellant] was in technical violation, this [c]ourt scheduled
another status hearing for November 25, 2013.
On November 25, 2013, [Appellant] appeared for a second
status hearing. [Appellant] was still attending drug treatment at
Wedge, but was testing positive for drugs. Although [Appellant]
was in technical violation, this [c]ourt ordered [Appellant] to earn
his GED, receive job training, find a fast food job to start, and pay
costs and fees. This [c]ourt warned [Appellant] that he needed to
get into compliance or he would go to jail.
On January 26, 2014, [Appellant] appeared before this
[c]ourt for a third status hearing. [Appellant] stated that he was
testing positive for drugs because his mother gave him Percocets.
Although [Appellant] was in technical violation, this [c]ourt
ordered [Appellant] to get a legitimate job, work on his GED,
receive job training, and pay costs and fees at a rate of
$35/month. This [c]ourt warned [Appellant] that he could not test
positive for any drug use and allowed his probation to continue.
On April 17, 2014, [Appellant] appeared before this [c]ourt
for another hearing. This [c]ourt found him in technical violation
for continued drug use and failure to comply with any of the terms
and conditions of his probation. This time, the [c]ourt revoked his
probation and sentenced him to 11½ to 23 months [of] county
incarceration plus 5 years [of] reporting probation, with a
stipulation that he serve his time at Hoffman Hal. This [c]ourt
ordered [Appellant] to receive drug treatment, earn his GED,
enroll in a job training program, seek and maintain employment,
and undergo random urinalysis. [Appellant] was further ordered
to pay applicable costs and fines at a rate of $35 per week. This
[c]ourt warned [Appellant] that he would receive a state sentence
if he violated again. On March 17, 2015, this [c]ourt granted
[Appellant] work release, effective immediately.
On March 29, 2018, [Appellant] appeared before this [c]ourt
for another violation of probation hearing. First, this [c]ourt
reviewed [Appellant’s] conduct and behavior since his original
open guilty plea before this court in 2013. This [c]ourt also
reviewed the probation department’s summary report, which
indicated that [Appellant] tested positive for marijuana
throughout 2016 and 2017, that he remained unemployed, and
that he last reported to his probation officer on October 18, 2017.
[Appellant] absconded thereafter and wanted cards were issued
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on December 18, 2017. The probation report recommended
revocation and a period of incarceration.
Trial Court Opinion, 10/17/18, at 1-3.
At the conclusion of the March 29, 2018 VOP hearing, the trial court
imposed sentence as set forth above. Appellant filed a timely motion for
reconsideration on April 5, 2018, but the trial court never addressed it.
Appellant filed this timely appeal on April 27, 2018. He raises a single issue:
Did not the trial court abuse its discretion and violate the
Sentencing Code by sentencing [Appellant] to 2½ to 5 years of
state incarceration, a manifestly excessive sentence for technical
violations of his probation?
Appellant’s Brief at 3.
Before we address the merits, we must determine whether Appellant
has preserved a challenge to the trial court’s sentencing discretion.
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-
part test: (1) whether appellant has filed a timely notice of
appeal, see 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, see Pa.R.Crim.P. [720]; (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.
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Appellant
filed a timely motion for reconsideration presenting his issue to the trial court,
and he filed a timely notice of appeal. His brief contains the requisite
statement of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P.
2119(f). This Court has treated the issue Appellant presents as a substantial
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question. Commonwealth v. Parlante, 823 A.2d 927, 929-30 (Pa. Super.
2003). We therefore turn to the merits.
Upon revoking probation, the trial court may choose any sentencing
option that existed at the time of the original sentencing. 42 Pa.C.S.A.
§ 9771(b). Instantly, the trial court found that total confinement was
necessary to vindicate its authority, as per § 9771(c)(3) of the Judicial Code.
42 Pa.C.S.A. § 9771(c)(3).
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. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015).
Appellant relies on Commonwealth v. Cottle, 462 A.2d 598 (Pa.
1981), in which our Supreme Court concluded that a VOP sentence of total
confinement was not warranted where the defendant, on his own initiative,
had obtained gainful employment and completed an alcohol rehabilitation
program. His only violation was technical, a failure to report for several years.
Id. at 599. The Supreme Court reasoned as follows:
To ignore [the defendant’s] efforts in his own behalf and act
solely on the basis of his failure to comply with the court’s
directive, would place form over substance. It would ignore the
ultimate objective that has been achieved and the fact that, that
accomplishment resulted from the efforts of the offender himself.
We are here faced with a man who has demonstrated that he is
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now able to live successfully in the community. The imposition of
the maximum sentence at this point in [the defendant’s] life would
be more punitive than corrective in nature. Moreover, it may very
well destroy that which has already been accomplished, i.e., his
readjustment. We cannot conclude that the legislature, in
subparagraph (c), intended that a court should place a greater
emphasis upon a perceived offense to its dignity than the basic
objectives of the sentencing process.
Id. at 602.
We find Cottle distinguishable on its facts. Here, Appellant consistently
failed to find suitable employment and consistently failed drug tests over a
period of nearly five years. At an earlier VOP proceeding, the trial court
sentenced Appellant to county incarceration and warned him that a state
sentence would follow if he continued to fail to comply with the terms of his
probation. Appellant absconded from probation after his then-girlfriend filed
a complaint with the probation department. Unlike the defendant in Cottle,
Appellant has never demonstrated that he is now able to live successfully in
the community. The trial court imposed the current state sentence only after
progressing from probation to county incarceration without successfully
achieving rehabilitation. We discern no abuse of discretion in the trial court’s
decision to impose incarceration in order to vindicate its authority.
Appellant also claims that, even if incarceration is warranted, the trial
court abused its discretion in imposing an excessive sentence, and that the
court “failed to consider or even mention a single way in which this sentence
addressed the protection of the public, the gravity of the offense or
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[Appellant’s] rehabilitative needs.” Appellant’s Brief at 17. The applicable law
is well settled:
In determining whether a sentence is manifestly excessive,
the appellate court must give great weight to the sentencing
court’s discretion, as he or she is in the best position to measure
factors such as the nature of the crime, the defendant’s character,
and the defendant’s display of remorse, defiance, or indifference.
Colon, 102 A.3d at 1043. In addition, the trial court must state on the record
the reasons for its resentencing after a VOP proceeding. Id. at 1044. The
trial court’s rationale need not be as detailed as it would be for an original
sentence, because the “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 [Presentence Investigation]
during the initial sentencing proceedings.” Commonwealth v. Pasture, 107
A.3d 21, 28 (Pa. 2014).
The record belies Appellant’s claim. At the VOP proceeding, the trial
court explained that its sentence was considerably lower than the statutory
maximum (27 years), and that Appellant’s repeated course of conduct
warranted it. N.T. VOP Hearing, 3/29/18, at 12-14. The court explained that
at first it allowed Appellant to remain on probation despite evidence at status
hearings that Appellant repeatedly violated the conditions of his probation.
Id. The court progressed to a county sentence with a warning that further
violations would result in a state sentence. Id. at 12-13. In the trial court’s
estimation, Appellant “never took this Court’s sentence seriously from the very
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beginning.” Id. at 14. We conclude that the trial court’s justification was
more than sufficient. As the Supreme Court noted in Pasture, a VOP court is
familiar with a defendant’s history and the facts and circumstances of the
offense.
Appellant also relies on Parlante, in which this Court held that a VOP
sentence was excessive. There, the defendant was sentenced in November
1998 to one year of probation for forgery and drug possession. In February
of 2001, after numerous technical violations, the trial court resentenced her
to 4 to 8 years of incarceration. This Court concluded that some period of
incarceration was warranted, but that the sentence was excessive because the
trial court failed to consider her age, family history, rehabilitative needs, her
presentence report, and the fact that her offenses were nonviolent. Id. at
930. We conclude that Parlante is distinguishable for several reasons.
Appellant’s pattern of misconduct and flouting the court’s authority had
persisted for nearly five years, whereas the trial court in Parlante imposed
its sentence just over two years after the defendant started serving probation.
Appellant had failed to avail himself of opportunities to rehabilitate after nearly
five years of repeated warnings from the trial court. Appellant’s sentence is
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considerably shorter than the sentence issued in Parlante, and well below the
applicable statutory maximum.1 We discern no abuse of discretion.
In summary, Appellant has failed to offer any argument to overcome
the great weight we must afford a VOP court’s sentencing discretion. We
therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/19
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1 The sentence at issue in Parlante was less than the statutory maximum,
but the opinion does not specify how far below the maximum. Grading of
forgery varies based on the circumstances of the offense. 18 Pa.C.S.A.
§ 4101(c).
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