J-S72006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALVIN AUSTIN,
Appellant No. 327 EDA 2017
Appeal from the Judgment of Sentence Entered December 16, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0006068-2008
CP-51-CR-0106211-2005
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 09, 2018
Appellant, Alvin Austin, appeals from the judgment of sentence of an
aggregate term of 2½ to 5 years’ incarceration, imposed on December 16,
2016, after his term of probation was revoked. On appeal, Appellant raises
one issue challenging the discretionary aspects of his revocation sentence.
After careful review, we affirm.
We need not reiterate the facts and procedural history of Appellant’s
case, as the trial court provided a detailed summary in its Pa.R.A.P. 1925(a)
opinion. See Trial Court Opinion, 2/27/17, at 1-5. Herein, Appellant
presents the following issue for our review:
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S72006-17
Was not the sentence of two and a half to five years[’]
total confinement for technical violations of probation manifestly
excessive and grossly disproportionate to the conduct at issue,
namely [Appellant’s] drug addiction, and not in conformity with
the requirements of the Sentencing Code in that it was far in
excess of what was necessary to foster [A]ppellant’s
rehabilitation?
Appellant’s Brief at 3.
We have examined the certified record, the briefs of the parties, and
the applicable law. Additionally, we have reviewed the opinion of the
Honorable Genece Brinkley of the Court of Common Pleas of Philadelphia
County. We conclude that Judge Brinkley’s extensive, well-reasoned opinion
accurately disposes of the issue presented by Appellant. Accordingly, we
adopt her opinion as our own and affirm the judgment of sentence on the
grounds set forth therein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/18
-2-
Circulated 12/21/2017 11:30 AM
FILED
. IN THE COURT OF COMMON PLEAS FEB 2 7 20111
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
Criminal J\ppeals Uni1
First Judicia\ District of I
COMMONWEALTH CP-51-CR-0106211 �2005
CP-Sl-CR-0006086-2008
vs.
CP-5l-CR-Ol06211-2CJ?5 Comm v. Auslin, Alvin
Opinion
111111111111111111111 I Ill SUPERIOR COURT
AL VIN A US TIN 7911728721 327 EDA 2017
BRINKLEY, J. FEBRUARY 27, 2017
OPINION
Defendant Alvin Austin appeared before this Court for a violation of probation hearing
and was found to be in technical violation of his probation. This Court revoked probation and
sentenced him to 2Yi to 5 years state incarceration. Defendant appealed the judgment of sentence
to the Superior Court and raised the following issue on appeal: (I) Whether the sentence imposed
was unreasonable and manifestly excessive.
PROCEDURAL HISTORY AND FACTS
On March 9) 2005, Defendant appeared before this Court and pJed guilty to possession
with intent to deliver a controlled substance (PWID). On that same day) this Court sentenced him
to a negotiated sentence of 6 to 23 months county incarceration plus 1 year reporting probation
with immediate parole. Defendant subsequently absconded from supervision and wanted cards
were issued for his arrest on October 18, 2005. On September 2, 2006, Defendant was arrested.
On October 6, 2006, Defendant appeared before this Court for a violation of probation/parole
hearing and was found to be in technical violation of his probation/parole. This Court revoked
parole and sentenced him to serve the balance of his back time. (N.T. 12/16/2016 p. 3).
On August 13, 2007, Defendant was paroled. On March 12, 2008, Defendant was
arrested and charged with PWID. On February 18, 2009, Defendant pied guilty. On May 29,
2009, this Court sentenced Defendant to 2 years in the Intermediate Punishment (IP) Program
followed by 2 years' probation. On that same day, this Court found Defendant in direct violation
of his probation on his previous PWID charge and sentenced Defendant to 2 years in the IP
Program plus 5 years' probation. The sentences on both charges were to run concurrent with one
another, for a total aggregate sentence of 2 years in the IP Program plus 5 years' probation.
Defendant was warned at that time that he would receive a sentence of state incarceration if this
Court found him in violation of his probation again. Id. at 4-5.
On March 16, 2011, Defendant was released from custody and subsequently tested
positive for marijuana for 4 consecutive months. Defendant then absconded from supervision
again and wanted cards were issued for him on October 6, 2011. On November 4, 2011,
Defendant appeared before this Court for a violation of probation hearing and was found to be in
technical violation of his probation. This Court revoked probation and sentenced him to 11 Yi to
23 months county incarceration plus 4 years' probation on his 2005 PWID charge and to l l Yi to
23 months county incarceration plus 6 years' probation on his 2008 PWID charge. The sentences
on both charges were to run concurrent with one another, for a total aggregate sentence of 11 Yi to
23 months county incarceration plus 6 years' probation. Defendant was once again warned at
that time that he would receive a sentence of state incarceration the next time that this Court
found him in violation of his probation. Id. at 5.
On June 26, 2012, Defendant was released from custody to the Wedge Medical Center.
2
Defendant subsequently absconded from supervision for a third time and wanted cards were
issued for him on May 16, 2013. Defendant remained in absconding status until he was arrested
on his wanted cards in July 2016. On August 1, 2016, Defendant appeared before the Honorable
Timika Lane, who was sitting for this Court. At that time, Judge Lane continued probation and
scheduled a status hearing for Defendant on November 14, 2016. On November 14, 2016,
Defendant failed to appear and this Court continued the matter to November I 7, 2016 so that
defense counsel could locate Defendant. On November 17, 2016, Defendant failed to appear
again and a bench warrant was issued by this Court. Id. at 5-6.
On December 16, 2016, this Court held a violation of probation hearing for Defendant.
Defendant was represented at the hearing by Sandra Barrett, Esquire, while the attorney for the
Commonwealth was Kelly Harrell, Esquire. After this Court reviewed its history with Defendant,
it read the report prepared by Probation Officer Veronica Shelton ("Shelton") on November l 0,
2016 onto the record. According to the report, Defendant tested positive for cocaine and
marijuana on September 14, 2016. The report also noted that Defendant failed to appear for his
appointment with the Probation Department on August 15 but appeared on August 23. At that
time, Defendant reported that he had opened his own business and had obtained additional
employment to supplement his income. He also reported that he had obtained his diploma and
would bring verification with him to Court on November 14. Shelton recommended that
probation be revoked and wanted cards issued should Defendant fail to appear for his scheduled
status hearing, as ultimately happened. Id. at 6- 7.
Ms. Barrett, on behalf of Defendant, noted that Defendant resided with his partner and
their two young children. Ms. Barrett further noted that Defendant operated a seasonal business
with his partner and also worked at a dollar store during the period in which he was absconding.
3
Ms. Barrett noted that Defendant had incurred no new arrests since March 2008 and had been
attending the Options program and Narcotics Anonymous since he was re-incarcerated. Ms.
Barrett claimed that Defendant had relapsed and then failed to report to Probation because he
knew he had tested positive. Ms. Barrett further claimed that Defendant was hospitalized as a
result of a car accident in November and that he turned himself in once he discovered that there
was a warrant for his arrest. Ms. Barrett argued that Defendant had acknowledged that he needed
help with his drug addiction and that he had taken steps since his incarceration in addressing his
drug problem. Ms. Barrett further argued that Defendant had not sold drugs for the past nine
years and a county sentence with an opportunity to enter a treatment facility would be the best
means for him to address his drug addiction. Id. at 8-13.
Ms. Harrell, on behalf of the Commonwealth, argued that Defendant had been given a
significant break in September 2016 when Judge Lane continued his probation and that he had
failed to take advantage of that break. Ms. Harrell further argued that Defendant's history of
absconding demonstrated that he was not a good candidate for community supervision and that
he should be resentenced to a term of incarceration at this Court's discretion. Id. at 13.
Defendant next spoke on his own behalf. Defendant argued that he had always turned
himself in when he absconded and had not been arrested on new crimes. Defendant stated that
his mother passed away and he consequently relapsed. Defendant claimed that he had been doing
well under supervision until he relapsed and absconded. Defendant stated that he had three
children and that he was working to be involved in their lives. Defendant further stated that he
did not want to lose his business because of his addiction and that he needed help. Id. at 14�15.
This Court found Defendant to be in technical violation, revoked probation and sentenced
Defendant to 2Yz to 5 years' state incarceration on each charge, to nm concurrent with one
4
another. This Court recommended that Defendant serve his sentence at SCI - Chester so that he
could receive drug treatment there. In imposing its sentence, this Court stated that the sentence
was absolutely necessary to vindicate the authority of the Court given Defendant's lengthy
history of absconding. This Court noted that it had previously warned Defendant twice that he
would face a sentence of state incarceration if he continued to violate his probation and yet
Defendant continued to thumb his nose at the Court. This Court stated that Defendant needed to
make a personal decision that he no longer wished to be a drug addict and that his behavior had
been unchanged since his first appeared before this Court in 2005. Id. at 16-18.
On January 13, 2017, Defendant, through counsel, filed a Notice of Appeal to the
Superior Court. On January 24, 2017, after receiving the complete Notes of Testimony, this
Court ordered Defendant to file a Concise Statement of Errors pursuant to Pa.R.A.P. l 925(b) and
Defendant did so on February 8, 2017.
ISSUES
I. \VHETHER THE SENTENCE IMPOSED BY THIS COURT WAS
UNREASONABLE AND MANIFESTLY EXCESSIVE.
DISCUSSION
I. THE SENTENCE IMPOSED BY THIS COURT WAS NOT
UNREASONABLE OR MANIFESTLY EXCESSIVE.
The sentence imposed by this Court of 2 !h to 5 years state incarceration was not
manifestly excessive. 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. Johnson, 2015 PA Super 221, 125 A.3d 822, 826 (2015) (citing
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super.20 l 3)). In this context, an abuse of
discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by
5
reference to the record, that the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision. Id. It is well settled that the sentencing guidelines do not apply to
sentences imposed as a result of probation or parole revocations. Coolbaugh, 770 A.2d at 792
( citing Commonwealth v. Cappellini, 456 Pa.Super. 498, 690 A.2d 1220 ( 1997)).
As a general rule, "upon revocation, the sentencing alternatives available to the court
shall be the same as the alternatives available at the time of initial sentencing. u Commonwealth
v. Fowler, 930 A.2d 586; 595 (Pa.Super.2007). Normally, "the trial court is limited only by the
maximum sentence that it could have imposed originally at the time of the probationary
sentence." Coolbaugh, 770 at 792. Once probation or parole has been revoked, a sentence of total
confinement may be imposed if any of the following conditions exist: the defendant has been
convicted of another crime; the conduct of the defendant indicates that it is likely that he will
commit another crime if he is not imprisoned; or, such a sentence is essential to vindicate the
authority of court. Coolbaugh, 770 A.2d at 792.
When a trial court imposes a sentence that is within the statutory limits, 'there is no abuse
of discretion unless the sentence is manifestly excessive so as to inflict too severe a
punishment'." Commonwealth v. Mouzon, 812 A.2d 617, 624-25 (2002) (quoting
Commonwealth v. Person, 450 Pa. l , 297 A.2d 460 (1972)). In addition, a sentence will not be
disturbed unless the appellate court determines that the sentence is "unreasonable."
Reasonableness is determined by examining the four statutory factors set forth in 42 Pa. C.S.A. §
9781(d) as well as the general sentencing standards outlined in 42 Pa. C.S.A. § 972l(b).
Commonwealth v. Walls, 592 Pa. 557, 571, 926 A.2d 957, 965 (2007). 42 Pa. C.S.A. § 978l(d)
requires that the appellate court consider: "(l ) [t ]he nature and circumstances of the offense and
6
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; and (4) the guidelines promulgated by the commission." 42 Pa. C.S.A. §
9721 (b) requires consideration of the protection of the public, the gravity of the offense in
relation to the impact on the victim and the community and the rehabilitative needs of the
defendant. There is no requirement that a sentencing court's imposition of sentence be the
"minimum possible confinement." Walls, 592 Pa. at 571, 926 A.2d at 965.
In the case at bar, Defendant claims that the sentence imposed of 2Yz to 5 years' state
incarceration was unreasonable, manifestly excessive and not in conformity with the
requirements of the Sentencing Code. This claim is without merit. On the contrary, the sentence
was absolutely necessary to vindicate the authority of this Court given Defendant's extensive
history of absconding. As this Court recounted, on each prior occasion that Defendant was under
community supervision, he promptly absconded and remained in absconding status for lengthy
periods of time. Defendant absconded even after being warned by this Court on multiple
occasions that he would be sentenced to state incarceration if he violated his probation again.
Furthermore, Defendant absconded even after Judge Lane allowed his probation to continue
despite his prior absconding. In doing so, Defendant showed a flagrant disregard for the authority
of this Court and repeatedly thumbed his nose at this Court. Thus, the sentence of 2Yi to 5 years'
state incarceration, in keeping with this Court's earlier warnings to Defendant, was absolutely
necessary to vindicate the authority of this Court.
Moreover, the sentence was reasonable in light of Defendant's continued drug abuse. As
this Court noted, it had fashioned its previous sentences, including placement in the IP Program,
in a manner that would allow Defendant to overcome his drug addiction outside of state
7
incarceration. However, Defendant continued to abuse drugs despite his involvement in the IP
Program, Wedge Medical Center, the Options Program, and his previous sentence of county
incarceration. As this Court stated in imposing the sentence,
"Sir, you have to make a personal choice that you don't want
to be a drug addict in the presence of your three children because
that's what you are, and that's all you've been since 2005 when
you came before me. Here we are 11 years later, and you say,
"Well, Pm older now. I was young then." No. You're older now,
and you're still a crackhead. You're still a drug addict ... You
need to get yourself together for yourself. You [need] to make a
personal choice that you don't want to be a drug addict anymore.
Second, you need to say, I want to do better by my children than
I've done over these years against them, being in and out of jail
like this. That's all they've seen you do is go in and out of jail
for 11 years."
(N.T. 12/16/2016 pl 17-18). Thus, Defendant's history made clear that the only avenue left for
this Court to help him finally address his drug addiction was a sentence of state incarceration.
Notably, this Court recommended that Defendant serve his sentence at SCI - Chester so that he
could receive the drug treatment he needed while he was incarcerated. Therefore, the sentence
imposed was necessary to vindicate the authority of the Court given Defendant's repeated history
of absconding and reasonable in light of Defendant's continued rehabilitative needs.
8
CONCLUSION
After review of the applicable case Jaw, testimony and statutes, this Court committed no
error. The sentence imposed was not unreasonable or manifestly excessive. Accordingly, this
Court's decision should be affirmed.
9