J-A24030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LERIN JOVAN DUKES
Appellant No. 123 WDA 2017
Appeal from the Judgment of Sentence Dated December 15, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011439-2014
CP-02-CR-0013164-2013
CP-02-CR-0013166-2013
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 21, 2017
Appellant Lerin Jovan Dukes appeals from the judgments of sentence
imposed on the above three docket numbers following the revocation of his
sentences of probation. All three cases involve assaults by Appellant on the
same victim, his wife. We affirm.
On February 10, 2014, Appellant pleaded guilty to one count of simple
assault1 at docket number CP-02-CR-00013164-2013 and one count of
simple assault at docket number CP-02-CR-00013166-2013, pursuant to a
plea agreement with the Commonwealth. Appellant was sentenced to serve
two concurrent terms of two years’ probation. 2 Appellant filed no post-
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1 18 Pa.C.S. § 2701(a)(1).
2Pursuant to the plea agreement, Appellant’s other charges were withdrawn.
The conditions of Appellant’s probation included that he was to have no
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sentence motions or direct appeal. On December 15, 2014, Appellant
pleaded guilty to another count of simple assault at docket number CP-02-
CR-00011439-14 in accordance with a plea agreement. He was sentenced to
serve two years’ probation.3 Appellant filed no post-sentence motions or
direct appeal.4
On August 13, 2015, following a violation of his probation,5 Appellant
was resentenced on each docket. The court imposed concurrent sentences of
sixteen days’ incarceration (with credit for the sixteen days he had spent
incarcerated prior to sentencing), followed by two years’ probation on each
charge.6 The court stated “If you come back because you have assaulted this
woman again, I’m going to send you to the State.” N.T., 8/13/15, at 3.
Appellant filed no post-sentence motions or direct appeal.
(Footnote Continued) _______________________
violent contact with the victim and to successfully complete a batterer’s
intervention program.
3 Again, Appellant’s other charges were withdrawn, and again Appellant was
ordered to have no violent contact with the victim.
4 The record does not indicate that a pre-sentence investigation report was
completed or considered prior to any of Appellant’s initial sentences.
5 Appellant’s probation was revoked due to new allegations of abuse against
his wife and his consumption of alcohol while on probation.
6 In conjunction with his probation, Appellant was ordered to have no
contact with the victim; to undergo drug, alcohol, and mental health
evaluations; and to successfully complete a batterer’s intervention program.
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On December 15, 2016, after Appellant was convicted of again
assaulting his wife,7 a hearing was held regarding Appellant’s violations of
probation. Prior to the hearing, the court obtained a pre-sentence
investigation report. See N.T., 12/15/16, at 4, 12.8
At the hearing, a representative from Allegheny County Adult
Probation and Parole9 testified that in September 2015, that office had
received text messages from the victim, stating that she feared for her life;
she thereafter filed a police report, and a violation of probation warrant was
issued for Appellant. In October 2015, Appellant failed to appear before the
court for a domestic violence review hearing, and a bench warrant was
issued. Appellant was detained on both warrants in November 2015, and
was released to alternative housing at Renewal Center in December 2015.10
In February 2016, the victim reported that Appellant had raped her. Id. at
2-4. At his trial, however, the victim recanted the rape allegation, and, as a
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7 The convictions were adjudicated at Docket No. CP-02-CR-0003643-2016
and are not before us in this appeal. Appellant was convicted of both sexual
assault, 18 Pa.C.S. § 3424.1, and simple assault. He was found not guilty of
rape by forcible compulsion, unlawful restraint, and terroristic threats. He
was sentenced on November 8, 2016, to serve approximately one to two
years’ incarceration (with credit for 365 days’ served), five years’ probation,
and was required to enter “lifetime registration” as a sex offender. Appellant
has appealed these convictions to this Court at No. 1951 WDA 2016.
8 The report was not made part of the certified record.
9 The person who testified was not Appellant’s probation officer. N.T. at
12/15/16, at 2.
10The court signed an order granting transfer to alternative housing on
December 1, 2015.
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result, he was found not guilty of that charge. Through counsel at
Appellant’s probation violation hearing, the victim requested leniency from
the court in resentencing Appellant so that he could rejoin his family, and
stated that he has “job opportunities out there.” Id. at 4-9. Appellant
apologized to the court, admitted that he “messed up” being a husband, and
that he “put [the victim] through a lot.” Id. at 11. Appellant told the court
that he had a job while he was living at Renewal Center, and had been about
to start school before his incarceration. Id. at 12.
The court found that Appellant violated his probation. Prior to imposing
sentence, the court stated:
I think the only thing you can do for her is to leave her
alone. And I asked you to do that before, you violated my no
contact order and went and had sex with her. It is not like you
went and just hit her again, you -- I have been supervising you
since 2014. There are four cases with the same victim. There is
a no contact order.
You are totally in technical non-compliance. I mean, you
haven’t done anything right on that.[11]
I did give you a chance, I put you in Renewal. You were
there for a little while, you left and then sexually assaulted the
same woman. She did [state to a probation officer] that she
fears for her life, as she should, because I think eventually if I
let you out, you are going to kill her. . . .
I see no evidence of rehabilitation. I had you in treatment.
You are a convicted violator for sexual assault. You had been in
and out of jail before, you have never done well. And you
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11 As Appellant had been ordered to have no contact with the victim, the
incident underlying the new offense constituted a technical violation of the
terms of Appellant’s probation, as well as a new conviction.
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committed this last offense while you were in alternative
housing. . . .
You beat her every chance you can. How many times do
you get to beat the same woman? I have got you down for five.
Or get to assault the same woman? I mean, you know, one we
can kind-of overlook thinking maybe you lost your temper. But
five, I can't overlook that.
Id. at 11-14. Appellant’s probation was revoked and he was sentenced to
three consecutive terms of one to two years’ incarceration, 12 for an
aggregate of three to six years. Id. at 15.13
On December 16, 2016, Appellant filed a motion to reconsider the
sentences on the basis that they were excessive, that the court failed to
consider his rehabilitative needs, and that his wife had recanted her
allegations of rape at the violation hearing and in the presentence
investigation report. The court denied the motion on January 5, 2017.14
On January 13, 2017, Appellant filed notice of appeal, and raises the
following issue:
Did the trial court fail to adequately consider and apply all of the
relevant sentencing criteria, including the protection of the
public, the gravity of the offense/violation, and especially
[Appellant’s] character and rehabilitative needs, as required
under 42 Pa.C.S.A. § 9721(b) (Sentencing Generally; General
Standards)[?]
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12The maximum sentence allowable on each count for which Appellant was
convicted is two years’ incarceration. See 18 Pa.C.S. §§ 2701(b), 1104(b).
13 He was also ordered to have no contact with the victim.
14 The order was dated January 4, 2017.
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Appellant’s Brief at 6. To the extent that Appellant’s argument on appeal
raises issues that he did not raise before the trial court in his post-sentence
motion, they are waived. See Pa.R.A.P. 302 (issues cannot be raised for the
first time on appeal). We therefore consider only Appellant’s argument that
the trial court failed to adequately consider his rehabilitative needs, and that
this resulted in an excessive sentence. See Commonwealth v. Tejada,
107 A.3d 788, 799 (Pa. Super.), appeal denied, 119 A.3d 351 (Pa. 2015).
Appellant challenges only the discretionary aspects of his sentence.15
Initially, we note that “this Court’s scope of review in an appeal from a
revocation sentencing includes discretionary sentencing challenges.”
Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en
banc). Nevertheless, “[c]hallenges to the discretionary aspects of sentencing
do not entitle an appellant to an appeal as of right.” Commonwealth v.
Solomon, 151 A.3d 672, 676 (Pa. Super. 2016), appeal denied, 168 A.3d
1265 (Pa. 2017). “Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for
allowance of appeal.” Commonwealth v. Haynes, 125 A.3d 800, 806-07
(Pa. Super. 2015) (citation omitted), appeal denied, 140 A.3d 12 (Pa.
2016). We will exercise our discretion to consider such a petition only if (1)
the appellant has filed a timely notice of appeal; (2) he has preserved the
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15 Appellant does not argue that his sentences’ length exceeded the
statutory maximum.
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sentencing issue at the time of sentencing or in a motion to reconsider and
modify his sentence; (3) he presents the issue in a properly framed
statement in his brief under Rule 2119(f) of the Rules of Appellate
Procedure, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.
1987); and (4) in the words of Section 9781(b) of the Sentencing Code, 42
Pa.C.S. § 9781(b), “it appears that there is a substantial question that the
sentence imposed is not appropriate under this chapter.” See, e.g.,
Haynes, 125 A.3d at 807.
Here, Appellant has satisfied the first three requirements of the four-
part test: Appellant filed a timely appeal, preserved the issue in a motion to
reconsider, and included in his appellate brief a concise statement of the
reasons for which he seeks allowance of an appeal, in compliance with Rule
2119(f) of the Rules of Appellate Procedure. See Appellant’s Brief at 16-21.
Thus, we must next determine whether Appellant has raised a substantial
question requiring us to review the discretionary aspects of the trial court’s
sentence. See Haynes, 125 A.3d at 807. “The determination of whether
there is a substantial question is made on a case-by-case basis, and this
Court will grant the appeal only when the appellant advances a colorable
argument that the sentencing judge's actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.”
Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa. Super. 2000).
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Appellant argues that the court failed to consider that Appellant took
responsibility for the underlying offenses and his family support, his
employment, and his educational history; according to Appellant, “[t]hese
factors lend themselves to promoting rehabilitation and help to identify
[Appellant’s] rehabilitative needs.” Appellant’s Brief at 19-20. Appellant
claims that the trial court’s failure to consider his rehabilitative needs as
mandated by 42 Pa.C.S.A. § 9721(b) presents a substantial question. Id. at
20. Appellant also claims that the imposition of consecutive one-to-two year
sentences (the maximum sentences) was excessive in light of the criminal
conduct at issue, and that this excessiveness also raises a substantial
question. Id. at 19-21.
We have previously held that “the failure to consider Section 9721(b)
factors . . . present[s] a substantial question for our review of the
discretionary aspects of sentences imposed for violations of probation.”
Commonwealth v. Derry, 150 A.3d 987, 999 (Pa. Super. 2016); id. at
992-95 (interpreting Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014)
and reconciling with Cartrette, 83 A.3d 1030 (Pa. Super. 2013)). We have
also stated that “[a] claim that a sentence is manifestly excessive such that
it constitutes too severe a punishment raises a substantial question.” Id. at
995 (quotation marks and citation omitted). Moreover, we have found that a
claim that a sentence is excessive in conjunction with a claim that a court
failed to consider rehabilitative needs presents a substantial question. See
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Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015).
Accordingly, we address the merits of Appellant’s claims.
We review Appellant’s sentence pursuant to the following standard:
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.
Sierra, 752 A.2d at 913 (quotation marks and citations omitted).
Appellant argues that —
. . . the [t]rial [c]ourt was made aware that [Appellant] took
responsibility for his actions leading to his technical violations[16]
and that he wanted to be a better father. . . . [Appellant] had
significant support within the community from his family, his job
opportunities, and pledged his compliance. These factors are
key: his family support and employment history indicate that
[Appellant] can succeed in rehabilitation. They also gave the
[t]rial [c]ourt a framework for [Appellant’s] rehabilitative needs.
Nonetheless, the [t]rial [c]ourt apparently did not consider any
of these facts, as no discussion appears on the record, even
though all of these facts show [Appellant] has the tools to be a
productive member of society.
Appellant’s Brief at 27 (citation to the record omitted). Appellant also
complains that his sentence was unreasonably harsh, because “[t]he point of
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16 Appellant suggests that he should have been sentenced only for his
technical violations, and not with consideration of his new conviction, as that
conviction is under appeal. Appellant admits that he has waived this
argument by failing to raise it in his Rule 1925(b) statement. See
Appellant’s Brief at 29 n.6. Because of the waiver, we do not address this
issue.
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probation revocation is not to punish a defendant who the [t]rial [c]ourt
believes received too light of a punishment previously.” Id. at 28.
Revocation of probation is governed by Section 9771 of the Sentencing
Code, which states in pertinent part:
(b) Revocation.—The court may revoke an order of probation
upon proof of the violation of specified conditions of the
probation. Upon revocation the sentencing alternatives available
to the court shall be the same as were available at the time of
initial sentencing, due consideration being given to the time
spent serving the order of probation.
(c) Limitation on sentence of total confinement.—The court
shall not impose a sentence of total confinement upon revocation
unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that
he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of
the court.
42 Pa.C.S. § 9771(b), (c). Unlike an originally imposed sentence, a sentence
following a revocation of probation need not consider the ranges suggested
by the sentencing guidelines, but only the statutory maximum. Derry, 150
A.3d at 993. However, a sentence following a revocation of probation must
also reflect a consideration of the factors set forth in Section 9721(b)
(including a defendant’s rehabilitative needs), see id. at 994–95, 17 and
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17 Under Section 9721(b) of the Sentencing Code,
the court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with the
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those factors set forth in Section 9725. Commonwealth v. Schutzues, 54
A.3d 86, 93 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).18
Ultimately, “The focus of a probation violation hearing, even though
prompted by a subsequent arrest, is whether the conduct of the probationer
indicates that the probation has proven to be an effective vehicle to
accomplish rehabilitation and a sufficient deterrent against future antisocial
conduct.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007)
(citation omitted).
(Footnote Continued) _______________________
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. § 9721(b).
18 Section 9725 provides:
The court shall impose a sentence of total confinement if, having
regard to the nature and circumstances of the crime and the
history, character, and condition of the defendant, it is of the
opinion that the total confinement of the defendant is necessary
because:
(1) there is undue risk that during a period of probation or
partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can
be provided most effectively by his commitment to an
institution; or
(3) a lesser sentence will depreciate the seriousness of the crime
of the defendant.
42 Pa.C.S. § 9725.
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Although the record must reflect that the sentencing court considered
the appropriate factors when fashioning a sentence, the court “need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question.” Commonwealth v. Crump,
995 A.2d 1280, 1283 (Pa. Super.), appeal denied, 13 A.3d 475 (Pa. 2010).
Moreover, “[w]here pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa. Super. 2009). As long as the appropriate factors were considered
by the trial court, an appellate court is not permitted to re-weigh the
sentencing factors in the trial court’s stead and decide the sentence anew.
See Commonwealth v. Williams, 69 A.3d 735, 742 (Pa. Super. 2013),
appeal denied, 83 A.3d 415 (Pa. 2014).
Regarding a sentence’s length, “a trial court does not necessarily
abuse its discretion in imposing a seemingly harsher post-revocation
sentence where the defendant received a lenient sentence and then failed to
adhere to the conditions imposed on him.” Pasture, 107 A.3d at 28. Nor
does the court necessarily abuse its discretion when imposing consecutive
sentences, because a defendant “is not entitled to a volume discount for his
crimes.” Swope, 123 A.3d at 341.
Here, the trial court stated that it “clearly placed ample reasons for its
sentence on the record” and that the sentence did not violate the guidelines
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“either due to its length or the reasons contained in the record for its
imposition.” Trial Ct. Op., 5/5/17, at 5. We agree.
The record reflects that the court duly considered Appellant’s
rehabilitative needs pursuant to Section 9721(b), both by its consideration of
the pre-sentence investigation report and through its remarks during the
sentencing hearing. Nor can we conclude that Appellant’s sentence was
excessively harsh, given the recurring assaults by Appellant and his previous
lenient sentences. We cannot alter the weight given by the court to this
factor in relation to the other factors considered by the court, including, for
example, the protection of the public, the gravity of the offense, and
vindication of the court’s authority. Despite Appellant’s alleged potential and
ongoing need for rehabilitation, the trial court aptly concluded that probation
had not proven to be an effective vehicle to accomplish rehabilitation or a
sufficient deterrent against future antisocial conduct, and it revoked
Appellant’s probation accordingly. We defer to the discretion of the trial
court and affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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