Com. v. Stasney, M. (memorandum)
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J-S62007-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MARK STASNEY, Appellant No. 2152 EDA 2012 Appeal from the Judgment of Sentence June 28, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008870-2010 BEFORE: BOWES, LAZARUS, and WECHT, JJ. MEMORANDUM BY BOWES, J.: FILED JANUARY 14, 2014 Mark Stasney appeals from the judgment of sentence of two and onehalf years to seven years incarceration imposed by the trial court after it revoked his probation. We affirm. Appellant originally entered a negotiated guilty plea to a third degree felony charge of theft from a motor vehicle on July 5, 2011.1 The court issued a split sentence of eleven and one-half months to twenty-three months incarceration to be followed by three years of probation. Following a probation and parole. Thereafter, on June 28, 2012, it re-sentenced Appellant for violating his probation to two and one-half to seven years ____________________________________________ 1 The charge constituted a felony based on a recidivism enhancement. J-S62007-13 incarceration.2 Appellant did not timely file a post-sentence motion. Instead, he filed a timely notice of appeal on July 27, 2012. The court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant filed his concise statement and also requested an extension to file a supplemental statement. Subsequently, Appellant filed a supplemental concise statement, as well as a petition to accept a motion to reconsider his sentence as timely filed. Appellant indicated that an untimely post-sentence motion had been filed on July 10, 2012, one day late.3 However, the docket does not reflect such a filing, nor does the certified record contain such a document. The indic and acknowledgment that it lacked jurisdiction, this Court granted January 9, 2013, the court granted -record motion as timely filed. It then held a hearing on the petition to vacate his sentence, and, on that ____________________________________________ 2 The trial court afforded Appellant credit for time served; therefore, no illegal sentencing issue arises. See Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa.Super. 2010). 3 The tenth day for filing the post-revocation sentence motion fell on a Sunday, July 8, 2012. Thus, Appellant had until July 9, 2012, to file a timely motion. -2- J-S62007-13 -sentence motion. The trial court thereafter authored its Pa.R.A.P. 1925(a) decision, without discussion of the unusual procedural posture of the matter. The matter is our consideration. Did not the court below abuse its discretion in sentencing [A]ppellant to a term of two and one-half to seven years of total confinement for a technical violation of probation, where [A]ppellant had not been convicted of another crime, his conduct did not indicate that he was likely to commit another crime, and the sentence was not essential to vindicate the authority of the court; where the court failed to take into account the sentencing factors enumerated in the Sentencing Code and to give sufficient individual rehabilitative needs; and where the sentence imposed was manifestly excessive? sentence. We recently clarified that our scope of review following revocation proceedings includes discretionary sentencing claims. Cartrette, Jr., 2013 PA Super 325 (en banc). analyzing such sentencing claims is for Commonwealth v. Our standard of review in an abuse of discretion. Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). Accordingly, we do not reverse unless the court commits an error of law or its sentence was the result of bias or ill-will. Id. In order to properly preserve a discretionary sentencing issue, a defendant must raise the issue at sentencing or in a post-sentence motion. -3- J-S62007-13 Id. In addition, the defendant must preserve the issue in a Pa.R.A.P. 1925(b) concise Commonwealth statement v. or Naranjo, errors 53 A.3d complained 66, 72 of on (Pa.Super. appeal. 2012). Furthermore, this Court ordinarily cannot review a discretionary sentencing matter unless the defendant provides a Pa.R.A.P. 2119(f) and presents Id. We begin by noting that no post-sentence motion is contained within the record. Moreover, the record reflects that Appellant did not timely file a post-sentence motion, nor did he, within the period in which the trial court retained jurisdiction, request the court to consider a post-sentence motion nunc pro tunc. Instead, well after the trial court lost jurisdiction, Appellant asked the trial court to consider a July 10, 2011 filing that is not contained in the record as a timely post-sentence motion. The trial court initially denied that order, accurately noting that it lacked jurisdiction. Thereafter, Appellant filed a petition for remand to the trial court with this Court. In a January 7, 2013 per curiam order, this Court directed the trial court to entertain sentence motion as timely filed. It is evident that Appellant did not originally preserve his discretionary sentencing challenge in a timely post-sentence motion. While Appellant has attached to his brief a copy of his July 10, 2012 petition to vacate and reconsider sentence, which includes the issues he now raises on appeal, as -4- J-S62007-13 noted earlier, that petition is neither docketed nor contained in the certified record. Accordingly, Ap waived. Nonetheless, due to the unusual procedural background and the to consider his post-sentence motion as timely filed, we will address the Appellant sets forth in his Pa.R.A.P. 2119(f) statement that his sentence was excessive and based solely on technical violations of probation, and that the trial court did not consider the factors delineated in 42 Pa.C.S. § 9721(b) and 42 Pa.C.S. § 9771(c). The imposition of a sentence of total confinement after the revocation of probation for a technical violation, and not a new criminal offense, implicates the Crump, supra at arguments that the sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a Commonwealth v. Dodge, 2013 WL 4829286, 15 n.8 (Pa.Super. 2013). Accordingly, Appellant has forwarded a substantial question for our review. As delineated in Crump, supra at 1282-1283 (internal citation omitted): When imposing a sentence of total confinement after a probation revocation, the sentencing court is to consider the factors set forth in 42 Pa.C.S. § 9771. Under 42 Pa.C.S. § 9771(c), a court may sentence a defendant to total -5- J-S62007-13 confinement subsequent to revocation of probation if any of the following conditions exist: 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 this court. A revocation court also must look to the general sentencing standards provided in 42 Pa.C.S. § 9721(b). Commonwealth v. Williams, 69 A.3d 735, 741 (Pa.Super. 2013). That provision reads in relevant part: [T]he court shall follow the general principle that 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. § 9721(b). Appellant argues that his probation violations constituted failing to report to house arrest and his probation officer as well as admitting to using crack cocaine. Since he was not convicted of a crime, despite his admission committed any new crime[.] confinement was unnecessary to protect the public nor did it further his rehabilitative needs. He relies on Commonwealth v. Parlante, 823 A.2d 927 (Pa.Super. 2003) and Commonwealth v. Cottle, 426 A.2d 598 (Pa. 1981), in support of his position. -6- J-S62007-13 In Parlante, a panel of this Court reversed a four-to-eight-year age, family history, rehabilitative needs, that her underlying criminal offense was non-violent, and that her pertinent probation violations were technical. In Cottle, our Supreme Court reversed a probation revocation sentence where the sentencing court imposed the statutory maximum sentence t to his probation officer. The terminated and no sentence imposed due to his completion of an alcohol rehabilitation program and retaining permanent employment. The trial court rejected that recommendation and sentenced the defendant to two and onehalf to five years incarceration. The Supreme Court found that the now 42 Pa.C.S. § 9771, constituted error. The C lengthy criminal history, including twelve convictions. Further, it posits that Appellant admitted that he could not prevent himself from using crack cocaine to get high and admitted that he needed help. Finally, in a footnote, the Commonwealth notes that the sentencing court had the benefit of a presentence investigation and considered that report in fashioning its sentence. -7- J-S62007-13 Instantly, we find that this matter is not analogous to either Parlante or Cottle, and that the trial court did not abuse its discretion. As noted in ourt need not undertake a lengthy Crump, supra discourse for its reasons for imposing a sentence or specifically reference the statute in question [§ 9771], but the record as a whole must reflect the sentencing court's consideration of the facts of the crime and character of Crump, supra at 1283. Here, the trial court had the benefit of a pre-sentence report and considered the appropriate sentencing factors under both § 9721 and § 9771. Appellant admitted to loving to smoke crack, which is a crime, and that he was in need of help. These facts indicate Appellant was in need of rehabilitation and likely to commit new drug offenses at the very least. The court set forth on the record that it was The court was aware that Appellant had eighteen bench warrants and did not appear for his scheduled visits with his probation he was likely to com fails. Judgment of sentence affirmed. -8- officer. Thus, prior efforts at J-S62007-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/14/2014 -9-
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