Com. v. Flory, R. (memorandum)

Annotate this Case

Download PDF

J-A10045-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RICHARD H. FLORY Appellant No. 1304 MDA 2013 Appeal from the Judgment of Sentence June 20, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002498-2000 CP-36-CR-0003465-2000 CP-36-CR-0003562-2000 BEFORE: DONOHUE, J., ALLEN, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.: FILED JUNE 19, 2014 Appellant, Richard H. Flory, appeals from the June 20, 2013 aggregate judgment of sentence of three and onewith credit for time-served, imposed following the revocation of his parole and probation. After careful review, we affirm the judgment of sentence. The trial court summarized the relevant facts and procedural history of this case as follows. [Appellant] is a 40[-]year old individual with an extensive criminal history including convictions on twelve dockets, eleven of which were for Burglary, Theft, or Receiving Stolen Property, and at least four parole and probation violations. At the time of his most recent violation, [Appellant] was under supervision on three separate dockets: on [CP-36CR-000]2498-2000 for Burglary1 (F-2) and Criminal Conspiracy to Commit Burglary2 (F-2); on [CP-36- J-A10045-14 CR-000]3465-2000 for Receiving Stolen Property3 (F-3); and on [CP-36-CR-000]3562-2000 for Burglary4 (F-2) and Theft by Unlawful Taking5 (M-2). [Appellant] was initially sentenced on [May 22, 2003, at] each of these dockets to an aggregate of one year less one day to two years less one day of incarceration followed by eight years of consecutive probation.6 [Appellant] was paroled from this sentence on January 29, 2004, and successfully completed his parole on March 25, 2005. [Appellant] then began serving the probation portion of his split sentence. On April 9, 2009, a capias was issued alleging that [Appellant] violated the terms of his probation by failing to report to scheduled appointments with his probation officer. [Appellant] was incarcerated on May 22, 2010, and on May 25, 2010, the capias was amended to include that [Appellant] received a new charge of Driving Under the Influence. On June 25, 2010, it was determined that [Appellant] violated probation was revoked and he was resentenced to time[-]served to twenty-three months followed by two years of consecutive probation. [Appellant was released on July 1, 2010]. On November 24, 2010, a second capias was issued, this time alleging that [Appellant] tested positive for and admitted to using cocaine. The same day, [Appellant] was detained and remanded to Lancaster County Prison. On December 27, 2010, th[e trial c]ourt determined that [Appellant] violated parole and resentenced him to serve the unexpired balance of his sentences, making him eligible for parole after six months. [Appellant] was released from Lancaster County Prison on May 24, 2011. On February 8, 2012, [Appellant] was found unconscious in the town square in Manheim, Pennsylvania. [Appellant] was transported to the hospital where it was determined that he lost -2- J-A10045-14 consciousness as a result of consuming too much alcohol. [Appellant] had previously been ordered to abstain from alcohol use as a condition of his supervision. Moreover, [Appellant] was charged with Public Drunkenness and Possession of Drug Paraphernalia in connection to this incident. Accordingly, on February 17, 2012, a capias was issued and [Appellant] was incarcerated. [Appellant] filed a petition for walk-in status, which Petition was granted, and he was released from Lancaster County Prison on March 15, 2012. On May 1, 2012, [Appellant] called to reschedule an appointment with his probation officer, claiming that he had to work. [Appellant] was instructed to report to the probation office on May 4, 2012, but failed to appear, this time stating that he was in the hospital. A new appointment was scheduled for May 7, 2012 and [Appellant] was specifically directed to bring verification of his hospital stay. Once again, [Appellant] failed to report for his appointment. Accordingly, his walk-in status was revoked and a capias and a bench warrant were issued. While the bench warrant was still active, [Appellant] was charged with Receiving Stolen Property and Theft by Unlawful Taking, and the capias was amended to include the new offenses. On April 10, 2013, th[e trial c]ourt found that [Appellant] violated his parole and probation on Counts 1 and 3 of [CP-36-CR-000]2498-2000, Count 1 of [CP-36-CR-000]3465-2000 and Counts 1 and 5 of [CP-36-CR-000]3562-2000, and his parole and probation were revoked. A Pre-Sentence Investigation (PSI) [report] was ordered, and on June 20, 2013, [Appellant] was re-sentenced on all counts to three and one half to seven years of incarceration with all counts and all dockets to run concurrently to one another. The [trial c]ourt additionally ordered that [Appellant] was to be given [On June 28, 2013, Appellant] filed a timely Post Sentence Motion to Modify Sentence[,] claiming, -3- J-A10045-14 [Appellant] only received credit for time[-]served on the most recent capias. Accordingly, on July 10, 2013, th[e trial c]ourt issued an Order specifying towards the sentences imposed on June 20, 2013 for all time served on the original sentences and on all prior parole and probation violation sentences on 1 18 [Pa.C.S.A.] § 3502(a). 2 18 [Pa.C.S.A.] § 903(a)(1). 3 18 [Pa.C.S.A.] § 3925(a). 4 18 [Pa.C.S.A.] § 3502(a). 5 18 [Pa.C.S.A.] § 3921(a). 6 [CP-36-CR-000]3465-2000 was illegal because the total period of supervision was longer than the statutory maximum period of incarceration for a felony of the third degree, which is seven years. See 18 Pa.C.S.A. § 1103. However, both [Appellant] and the Commonwealth agree that this Probation Violation Hearing. Trial Court Opinion, 9/24/13, at 1-4 (citations to notes of testimony omitted; footnotes and quotation marks in original). Thereafter, on July 19, 2013, Appellant filed a timely notice of appeal.1 On appeal, Appellant raises the following issues for our review. I. Was an aggregate sentence of three and one ____________________________________________ 1 Appellant and the trial court have complied with Pa.R.A.P. 1925. -4- J-A10045-14 probation/parole violation manifestly excessive and contrary to the fundamental norms underlying the sentencing process? II. half years to seven years on Information [CP36-CR-000]3465-2000 for a felony of the third degree illegal because [Appellant] does not have seven years of eligible time remaining to serve because he successfully completed the parole portion of his original sentence? III. Did the trial court err and abuse its discretion in failing to give [Appellant] time credit for all time served on Informations [CP-36-CR000]2498-2000 and [CP-36-CR-000]35622000 despite ordering that [Appellant] was to Our standard of review in assessing whether a trial court has erred in fashioning a sentence following the revocation of probation is well settled. The disturbed on appeal in the absence of an error of law or an abuse of Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or Commonwealth v. Burns, 988 A.2d 684, -5- J-A10045-14 689 (Pa. Super. 2009) (en banc) (citation omitted), appeal denied, 8 A.3d probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the Commonwealth v. MacGregor, 912 A.2d 315, 317 offender is serving a sentence of probation or intermediate punishment, if he violates the assigned conditions, the order of probation or intermediate punishment (as the case may be) may be revoked and a new sentence Commonwealth v. Wegley, 829 A.2d 1148, 1153 (Pa. 2003) (citations omitted). [W]e must accord the sentencing court great weight as it is in the best position to view the or indifference, and the overall effect and nature of where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion. Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008)(citations and quotation marks omitted). Appellant argues Id. at 16. Appellant further argues the trial court failed to impose an -6- J-A10045-14 individualized sentence that took into consideration his drug and alcohol dependency and prior criminal history. Id. Where an appellant challenges the discretionary aspects of his sentence, as is the case here, there is no automatic right to appeal, and an Commonwealth v. W.H.M., Jr., 932 A.2d 155, 163 (Pa. Super. 2007). We will grant an appeal challenging the discretion of the sentencing court only where the appellant has advanced a colorable argument that the sentence is inconsistent with the Sentencing Code or contrary to the fundamental norms that underlie the sentencing process. Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005) (citations and quotation marks omitted), appeal denied, 890 A.2d 1057 (Pa. 2005). Prior to reaching the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine the following. (1) [W]hether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case. Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013). -7- J-A10045-14 Applying the four-factor test to the present matter, we conclude Appellant has complied with the first three requirements. Accordingly, we Rule 2119(f) statement to determine substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the [sentencing] code or is contrary to the fundamental norms Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (citation omitted), appeal denied, 13 A.3d 474 (Pa. 2010); see also 42 Pa.C.S.A. § 9781(b). Instantly, our review reveals that Appellant has failed to present a a substantial question for our review. Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012), appeal denied, 62 A.3d 378 (Pa. 2013). consider mitigating factors in favor of a lesser sentence does not present a Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 2011); accord Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). Rather, the weight to be afforded the various sentencing factors is a discretionary matter for the sentencing court and its determination will not be disturbed -8- J-A10045-14 simply because the defendant would have preferred that different weight be given to any particular factor. See e.g., Commonwealth v. Marts, 889 A.2d 608, 615 (Pa. Super. 2005). Accordingly, we conclude Appellant is not entitled to appellate review of the discretionary aspects of his sentence.2 In his final two issues, Appellant challenges the legality of the June 20, 2013 judgment of sentence imposed following the revocation of his parole llant avers the trial court erred in failing to ensure he was given credit for all time-served on docket numbers CP-36-CR-0002498-2000 and CP-36-CR-0003465-2000, ____________________________________________ 2 is excessive in light of its underlying technical violations can present a Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007) (citation omitted). As noted, however, Appellant does not make such an allegation in his Rule 2119(f) statement or his questions presented in his brief. See Commonwealth v. Provenzano, statement of questions presented and the prefatory 2119(f) statement to Moreover, even if we were to reach the merits of discretionary sentencing claims, they would nonetheless fail. Our review of the record reveals that the trial court properly considered all relevant factors in sentencing Appellant to an aggregate term of three and one-half to seven placed its reasoning on the record at the June 20, 2013 hearing. See N.T., 6/20/13, at 5-7; Trial Court Opinion, 9/24/13 at 7-8. Additionally, we note that the trial court considered and relied upon a PSI report. N.T., 6/20/13, at 6. When a trial court has the benefit of a PSI report, we presume that it and weighed Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa. 2007). -9- J-A10045-14 causing him to be subject to a term of incarceration greater than the statutory seven year maximum for a third-degree felony. Id. at 22-24; see also [i]n the case of a felony of the third degree, for a term which shall be fixed by the court at not more Appellant maintains that he is entitled to credit for sentence (two years less one day), because [he] successfully walked of his parole, as challenges to an illegal sentence can never be waived and may be reviewed sua sponte Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) (citation omitted). It is equally well established that Pennsylvania law does not tolerate an illegal entertained as long as the reviewing court has jurisdiction Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa. Super. 2011) (citation omitted). If no statutory authorization exists for a particular Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (citation omitted), appeal denied Id. - 10 - J-A10045-14 questions of law[; as a result, o]ur standard of review over such questions is de novo, and our scope of review is plenary. Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super. 2013) (citations omitted). Instantly, Appellant avers that the trial court did not have the ability, upon revocation of his probation, to impose a sentence with a seven-year maximum, as Appellant had previously completed the incarceration and parole portion of his splitthis averment, Appellant relies on two prior opinions of this Court, Commonwealth v. Williams, 662 A.2d 658 (Pa. Super. 1995), appeal denied, 674 A.2d 1071 (Pa. 1996), and Commonwealth v. Bowser, 783 A.2d 348 (Pa. Super. 2001), appeal denied, 786 A.2d 1286 (Pa. 2002). Specifically, Appellant argues that pursuant to Williams the trial court was ob at 19. Further, Appellant argues that the Williams remedy that consisted of merely applying time credit to the minimum Id. Appellant supports this averment by citing Bowser as and the time served on the first component of the split sentence did not exceed Id. Accordingly, Appellant contends that Williams and Bowser requires the sentencing court to - 11 - J-A10045-14 the first component of the split sentence. Id. at 21. Appellant, however, misconstrues the holdings of these cases. In sentencing a defendant, the trial court is bound by the following statutory provision mandating credit for time served. § 9760. Credit for time served. After reviewing the information submitted under [S]ection 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows: (1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal. (2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts. 42 Pa.C.S.A. § 9760. In Williams, the appellant was originally sentenced to 11½ months to Williams, supra at - 12 - J-A10045-14 658. Williams served the minimum sentence of 11½ months and was then released on parole. Id. While on parole, he was convicted of a new crime. Parole was revoked, and Williams was sentenced to serve the remainder of the 23 months of the original sentence. Id. Thereafter, Williams was released on probation, and subsequently violated his probation based on a conviction for involuntary manslaughter. Id. The trial court resentenced Williams on the unlawful taking conviction to three and one-half to seven for the period of incarceration on the probation detainer. Id. at 658-659. - half to seven year the probation detainer, was illegal. Id. at 659. Accordingly, the Williams resentence Williams to a statutory minimum and maximum that credited Williams with both the time incarcerated on the probation detainer and for the 23 months served on his split sentence prior to probation. Id. In doing so, this Court specifically set forth the months and days Williams was to be given credit for and calculated his minimum and maximum allowable sentence. Id. Nevertheless, the holding in Williams stands only for the rule that pursuant to Section 9760, an appellant must be given credit for time served in custody. The Williams Court was constrained to vacate the judgment of - 13 - J-A10045-14 sentence because the Department of Corrections was without the authority See Commonwealth v. Mann he Department of Corrections, an executive agency, has no power to change sentences, or to add or remove sentencing conditions, including credit for time served; this Herein, the trial court explicitly granted Appellant credit for served on the original sentences and on all prior parole and probation Appellant is entitled to credit for the following periods of time. 6/15/00 to 8/11/00 (57 days) 5/22/03 to 1/29/04 (252 days) 3/22/05 to 3/23/05 (1 day) 5/22/10 to 7/1/10 (40 days) 11/24/10 to 5/24/11 (181 days) 2/21/12 to 3/15/12 (23 days) Credit Checks Corrected, 8/15/13, at 1. one day of credit for completing the parole portion of his initial sentence, - 14 - J-A10045-14 credit for time served.3 As noted, pursuant to Section 9760, Appellant is [c]redit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the 42 Pa.C.S.A. § 9760(1) (emphasis added). The trial court correctly included the portion Thus, we conclude that sentence of three and one-half to seven was legally within the statutory maximum for third-degree felony because Appellant was appropriately awarded credit for all time served in custody.4 ____________________________________________ 3 We note that Appellant is not entitled to any credit for the period of time spent on parole after being released from custody, only for the portion of time spent in custody. See 42 Pa.C.S.A. § 9760(1), discussed infra. 4 A review of the certified record reveals the trial court has accurately Corrections (DOC) will, in turn, apply the periods of time in its calculation of communication with all of the relevant record keepers and it now appears calculation, the appropriate remedy is to file a writ of mandamus in the Commonwealth Court. See , 872 A.2d 1127, 1130discretionary actions and criteria are not being contested, but rather the ximum and minimum - 15 - J-A10045-14 sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/19/2014 - 16 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.