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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
HASSAN BURGESS FOLKES, :
:
APPELLANT :
: No. 1237 MDA 2016
Appeal from the Judgment of Sentence June 27, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001156-2015
CP-36-CR-0005789-2014
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED MAY 04, 2017
Appellant, Hassan Burgess Folkes, appeals from the Judgment of
Sentence of 2 to 5 years’ incarceration imposed following the revocation of
his probation. After careful review, we affirm.
The relevant facts and procedural history, as gleaned from the
Certified Record, are as follows. On May 22, 2015, Appellant entered a
guilty plea to Possession with Intent to Deliver and Possession of a
Controlled Substance (Heroin)1 at each of two criminal docket numbers.
Pursuant to a negotiated plea agreement, the court sentenced Appellant to
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 7800-113(a)(30) and 35 P.S. § 780-113(a)(16), respectively.
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two concurrent sentences of time-served to 23 months’ incarceration,
followed by 2 years’ probation.
On August 4, 2015, Appellant failed to report to a scheduled probation
appointment. In investigating Appellant’s failure to report, the probation
department learned that Appellant had provided false addresses.
Accordingly, the court issued a bench warrant for Appellant’s arrest on
August 7, 2015.
Police arrested Appellant on March 16, 2016. On April 18, 2016,
Appellant appeared before the trial court for a parole violation hearing, at
which he admitted to violating his parole, and represented to the court that
he had voluntarily surrendered to police.
Following his parole violation hearing, the court found Appellant in
violation of his supervision, ordered a Presentence Investigation (“PSI”)
Report, and directed that Parole Services verify whether Appellant had, in
fact, voluntarily turned himself in.
On June 27, 2016, the court held Appellant’s sentencing hearing. At
the hearing, the Commonwealth informed the court that Appellant had not
voluntarily surrendered to police; rather, that the Susquehanna Regional
Police Department had arrested him seven months after he had disappeared,
after finding him sleeping in an illegally-occupied apartment.
In addition, the PSI report revealed that in the 15 years prior to his
original plea on these charges, Appellant had been convicted of charges
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relating to the sale of illegal drugs, as well as theft crimes, resisting arrest,
and simple assault. Over the years, Appellant had been convicted of at least
25 felonies and misdemeanors.
Following the hearing, the court sentenced Appellant to 2 to 5 years’
incarceration with time-served credit from March 4, 2016 until the date of
sentencing.
On July 7, 2016, Appellant filed a Post-Sentence Motion, in which he
argued that his sentence was excessive for a first technical violation of
parole and that the court failed to consider mitigating circumstances in
sentencing him. The trial court denied Appellant’s Motion on July 11, 2016.
Appellant filed a timely appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
Was the trial court’s sentence of two (2) to five (5) years
of incarceration manifestly excessive under the
circumstances so as to constitute an abuse of discretion.
Appellant’s Brief at 5.
“Generally, in reviewing an appeal from a judgment of sentence
imposed after the revocation of probation, this Court’s scope of review
includes the validity of the hearing, the legality of the final sentence, and if
properly raised, the discretionary aspects of the appellant’s sentence.”
Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010) (citing
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)).
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Appellant claims on appeal that his revocation sentence is excessive
because the trial court failed to consider his turbulent upbringing, the gravity
of his first-time, technical parole violation, and his rehabilitative needs
before sentencing him. Appellant’s Brief at 16-15. He also alleges that his
revocation sentence exceeded his original sentence of two concurrent terms
of time served to 23 months’ incarceration, followed by 2 years’ probation.
Id. at 19. These issues implicate the discretionary aspects of Appellant’s
sentence. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013)
(en banc).
“Where an appellant challenges the discretionary aspects of a
sentence, there is no automatic right to appeal, and and appellant's appeal
should be considered a petition for allowance of appeal.” Commonwealth
v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007). As we observed in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of
his sentence must invoke this Court's jurisdiction by
satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (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, 42
Pa.C.S.A. § 9781(b).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)).
In the instant case, Appellant filed a timely Notice of Appeal, and
timely Post-Sentence Motion. He also included a separate Pa.R.A.P. 2119(f)
statement in his appellate brief. As to whether Appellant has presented a
substantial question, we must examine the specific sentencing issue raised
by Appellant.
In his Pa.R.A.P. 2119(f) Statement, Appellant alleges that his sentence
is manifestly excessive because his probation violations were merely
technical and the court failed to consider mitigating factors. Appellant’s Brief
at 10-11. He also alleges that his revocation sentence is excessive because
it exceeds his original aggregate sentence of time-served to 23 months’ with
a consecutive two-year term of probation. Id. at 12. He concludes,
therefore, that he has raised a substantial question as to the
appropriateness of his sentence under 42 Pa.C.S. §§ 9721 and 9781(c)(2).
Id.
We disagree with Appellant that his allegation that the court failed to
consider mitigating factors when resentencing him raises a substantial
question. See Commonwealth v. Matroni, 923 A.2d 444, 445 (Pa. Super.
2007) (“[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” (quotation and citation omitted)). However, we
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find that his claim that his revocation sentence, which was in excess of his
original sentence, does present a substantial question. See
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (finding a
substantial question exists when “a sentence of total confinement, in excess
of the original sentence, is imposed as a result of a technical violation of
parole or probation[]”).
Having determined that Appellant has raised a substantial question for
review, we turn to the merits of his claim.
“In reviewing a challenge to the discretionary aspects of sentencing,
we evaluate the court’s decision under an abuse of discretion standard.”
Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (citation
and quotation omitted). Additionally, this Court’s review of the discretionary
aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. §
9781(c) and (d).” Id. Section 9781(c) reads:
(c) Determination on appeal.—The appellate court shall
vacate the sentence and remand the case to the
sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence
within the sentencing guidelines but applied the
guidelines erroneously;
(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the guidelines
would be clearly unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.
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In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
We review a claim that a revocation sentence is excessive with the
following in mind:
The imposition of a 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) (citation
omitted). When imposing a sentence of incarceration after revocation of
probation, the sentencing court “is limited only by the maximum sentence
that it could have imposed originally at the time of the probationary
sentence.” Id. at 1044.
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“Our Supreme Court has determined that where 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, and that where the
court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(citing Commonwealth v. Devers, 546 A.2d 12, 18–19 (Pa. 1988)).
Appellant essentially argues that the trial court abused its discretion in
sentencing him to 2 to 5 years’ incarceration for a first-time, technical parole
violation, when it originally sentenced him to two concurrent terms of time-
served to 23 months’ incarceration, and 2 years’ probation. Appellant’s Brief
at 19. Appellant claims that he complied with the rules and regulations of
his parole, reported for his weekly appointments, and submitted to drug
testing. Id. He avers that he demonstrated a potential for rehabilitation
and compliance with court orders. Id. at 20-21. Therefore, he asserts that
the court’s revocation sentence was excessive and should be vacated. Id. at
21.
After a thorough review of the record, Appellant’s Brief, the applicable
law, and the comprehensive and well-reasoned Opinion of the trial court, we
conclude there is no merit to Appellant’s issue on appeal. Accordingly, we
affirm on the basis of the trial court’s Opinion. See Trial Ct. Op., 10/18/16,
at 5-7. The parties are instructed to attach the October 18, 2016 Opinion to
any future filings.
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Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2017
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Circulated 04/10/2017 12:04 PM
Com. v. Folkes, H.
Combined Opinion