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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IMANUEL Y. FORBES,
Appellant No. 3024 EDA 2015
Appeal from the Judgment of Sentence of September 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005264-2011
BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 25, 2017
Appellant appeals from the judgment of sentence entered on
September 4, 2015 in the Court of Common Pleas of Philadelphia County.
We affirm.
Briefly stated, the relevant factual and procedural history in this case
is as follows. On July 25, 2011, Appellant entered a negotiated guilty plea to
possession with intent to deliver (PWID) and driving under the influence
(DUI).1 Thereafter, the court sentenced Appellant to 11½ to 23 months’
incarceration followed by two years’ probation for PWID. Appellant also
received a concurrent sentence of 72 hours to six months’ incarceration for
DUI. On April 30, 2014, while still serving his probationary sentence,
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1
35 P.S. § 780-113(a)(30) and 75 Pa.C.S.A. § 3802(a)(1), respectively.
*Retired Senior Judge assigned to the Superior Court
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Appellant was found guilty in Delaware County of burglary, robbery, and
conspiracy.2 He received an aggregate sentence of 13 to 26 years’
incarceration for those offenses.
In response, the trial court in this case convened a violation of
probation (VOP) hearing on September 4, 2015. At the conclusion of the
VOP hearing, the court revoked Appellant’s probation and sentenced him to
four to eight years’ incarceration to run consecutively to the Delaware
County sentence. Appellant filed a timely motion to reconsider his sentence,
but the trial court never ruled on the motion. This timely appeal followed.3
Appellant raises a single question for our review:
Was the sentence imposed by the [trial] court after probation
was revoked manifestly excessive in light of the fact that the
sentencing court made literally no effort at all to comply with the
Sentencing Code?
Appellant’s Brief at 4.
In his brief, Appellant contends that the trial court abused its
discretion in imposing a manifestly excessive sentence without considering
the factors identified in 42 Pa.C.S.A. § 9721(b). Appellant also argues that
the court did not impose an individualized sentence, failed to offer adequate
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2
There is some indication in the record that Appellant committed PWID in
Delaware County approximately two months before committing the robbery
and burglary. See N.T. VOP Hearing, 9/4/15, at 5 (stating that Appellant
received a two- to four-year sentence for a Delaware County PWID offense).
3
Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
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reasons for its sentence, and abused its discretion in failing to state why it
did not order a pre-sentence investigation report pursuant to Pa.R.Crim.P.
702. These claims do not challenge the revocation of Appellant’s probation
or the imposition of a sentence of total confinement. Rather, Appellant’s
claims challenge the discretionary aspects of his sentence. Commonwealth
v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), appeal denied, 25 A.3d
328 (Pa. 2011).
“Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion.” Commonwealth v. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013) (citation omitted). 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:
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, 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.A.] § 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when
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a court revokes probation and imposes a new sentence, a criminal defendant
needs to preserve challenges to the discretionary aspects of that sentence
either by objecting during the revocation sentencing or by filing a
post-sentence motion”). In this case, Appellant filed a timely notice of
appeal and properly preserved his claims in a post-sentence motion.
Appellant’s brief also contains a statement pursuant to Pa.R.A.P. 2119(f).
Thus, we turn to whether the appeal presents a substantial question.4
As we have explained:
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).
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4
The Commonwealth argues that Appellant waived his claim that the trial
court violated 42 Pa.C.S.A. § 9721(b) by not giving adequate consideration
to whether confinement was “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.” See
Commonwealth Brief at 7, n.3. The Commonwealth maintains that Appellant
failed to include this claim in a post-sentence motion and in his concise
statement pursuant to Pa.R.A.P. 1925(b). Technically, the Commonwealth is
correct in that Appellant’s submissions alleged only a violation of 42
Pa.C.S.A. § 9771(c). Upon review, we shall treat Appellant’s references to
42 Pa.C.S.A. § 9771(c), rather than 42 Pa.C.S.A. § 9721(b), as an oversight
and caution defense counsel to use greater care in future filings. In any
event, as we shall discuss, the claim is meritless.
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In his Rule 2119(f) statement, Appellant contends that: 1) the trial
court “failed to consider and weigh all of the relevant factors set forth in 42
Pa.C.S.A. § 9721(b);” 2) the trial court failed to impose an individualized
sentence; 3) the trial court failed to place sufficient reasons for its sentence
on the record; and, 4) the trial court violated Pa.R.Crim.P. 702 by refusing
to obtain a pre-sentence investigation report without explaining the reasons
for its refusal on the record. Appellant’s Brief at 7-8. This Court recently
reaffirmed that a defendant presents a substantial question for review where
he challenges the revocation court’s failure to consider the factors found in
§ 9721(b). See Commonwealth v. Derry, 2016 WL 6776292, *6 (Pa.
Super. Nov. 15, 2016); see also Commonwealth v. Cartrette, 83 A.3d
1030, 1042-1043 (Pa. Super. 2013) (en banc) (in appeal from VOP
sentence, substantial question presented by claim that sentencing court did
not consider appropriate sentencing factors found in § 9721(b)). Moreover,
this Court has held that a substantial question is raised where the trial court
fails to consider a defendant’s individualized needs. Commonwealth v.
Serrano, 2015 WL 6776287, *2 (Pa. Super. Nov. 15, 2016). Lastly, we
have said that a sentencing court’s failure to state adequate reasons for
dispensing with a pre-sentence report raises a substantial question. See
Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011).
Accordingly, we now turn to the merits of Appellant's sentencing claims.
In sentencing Appellant, the trial court was required to “consider the
general principles and standards of the Sentencing Code.” Commonwealth
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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). In addition, 42 Pa.C.S.A. § 9771(c) permits the
trial court to impose a sentence of total confinement in order to vindicate its
authority. 42 Pa.C.S.A. § 9771(c).
Here, the trial court offered the following explanation for the sentence
imposed in this case:
The facts are clear that since his original conviction, [Appellant]
engaged in further unlawful behavior. In addition to his burglary
case, Appellant was convicted of PWID in Delaware County. The
fact that [Appellant] has been wholly unable to behave within
the confines of the law, and that he committed new, increasingly
violent offense[s] while on [probation], evidences that he is a
danger to the community and that a period of confinement is
necessary both to vindicate the authority of the [trial court] and
to protect the public.
Trial Court Opinion, 91/26/16, at 3.
Based upon the transcript of the VOP hearing and the foregoing
reasons for Appellant’s sentence, we discern no abuse of the trial court’s
discretion. Before imposing a sentence of total confinement, it is evident
that the trial court carefully considered the need to protect the public, the
gravity of Appellant’s conduct and its potential impact on the community,
and Appellant’s rehabilitative needs. Ultimately, the trial court concluded
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that Appellant’s continued involvement with criminal activity and his
progression toward more violent offenses showed that a more lenient
sentence would fail to ensure that Appellant received the rehabilitative
programming that he needs. The record firmly supports these assessments.
Accordingly, we see no reason to disturb the sentence imposed in this case.
We are not persuaded by the arguments Appellant offers in support of
relief. Initially, Appellant contends that the trial court offered no explanation
for its sentence and ignored the relevant sentencing factors set forth in 42
Pa.C.S.A. § 9721(b). Citing Commonwealth v. Parlante, 823 A.2d 927
(Pa. Super. 2003) (four to eight year confinement term manifestly excessive
where VOP court failed to consider defendant’s age, family history,
rehabilitative needs, and pre-sentence report), Appellant argues that the
court’s failure to consider Appellant’s background, mental health status, and
rehabilitative needs supports reversal of the revocation sentence.
Although Appellant is correct that § 9721(b) directs the trial court to
consider certain factors and place the reasons for its sentence on the record,
our Supreme Court recently held that, following revocation, a sentencing
court need not undertake lengthy discourse regarding its punishment or
specifically mention the statutes in question. Commonwealth v. Pasture,
107 A.3d 21, 28 (Pa. 2014). Here, Appellant’s direct violations, as
established by his new (and increasingly violent) offenses, were clearly the
basis for the sentence imposed by the trial court. Under these
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circumstances, we see no reason to withdraw the deference traditionally
owed to the sentencing court or to vacate Appellant’s revocation sentence.
Parlante does not compel a different result. In that case, we held
that the trial court abused its discretion in sentencing the defendant to four
to eight years’ incarceration without considering that her violations were
mostly technical and that any new crimes were non-violent. Parlante, 823
A.2d at 931. Here, by contrast, Appellant’s violations included multiple
convictions involving violent conduct, which the trial court considered in
fixing its sentence.
Appellant next argues that the trial court failed to impose an
individualized sentence and violated Pa.R.Crim.P. 702(A)(2)(a) in refusing,
without explanation, to order a pre-sentence report prior to Appellant’s
revocation sentencing. See Pa.R.Crim.P. 701 (“The sentencing judge shall
place on the record the reasons for dispensing with the pre-sentence
investigation report if the judge fails to order a pre-sentence report” where
“incarceration for one year or more is a possible disposition under the
applicable sentencing statutes[.]”). Appellant argues that he is entitled to
resentencing because of this omission by the court.
Contrary to Appellant’s assertions, this Court has provided “some
latitude in how th[e requirement in Rule 702] is fulfilled.” Commonwealth
v. Carrillo–Diaz, 64 A.3d 722, 726 (Pa. Super. 2013). Indeed, our case
law does not require a pre-sentence report in all instances.
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Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (en banc).
Instead, the critical inquiry is whether the sentencing court was “[informed]
of comprehensive information to make the punishment fit not only the crime
but also the person who committed it.” Carrillo–Diaz, 64 A.3d at 725
(quotation omitted).
We are satisfied that the sentencing court was sufficiently aware of the
unique facts of the case to render an individually tailored punishment. The
sentencing court here demonstrated a working knowledge of Appellant's
character, background, and his response to supervisory programs. In
addition, the trial court’s familiarity with Appellant's past criminal conduct
and the progression of his criminal behavior rendered the court sufficiently
informed such that its sentence reflected the unique nature of Appellant’s
character and his direct probation violations. Under these circumstances,
and since Appellant presents no argument or evidence of changed
circumstances that warranted an updated report, we affirm the sentence
imposed by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
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