COMMONWEALTH of Pennsylvania, Appellee v. Michael A. FLOWERS, Appellant
No. 3 MDA 2016
Superior Court of Pennsylvania.
FILED OCTOBER 24, 2016
149 A.3d 867
Submitted May 31, 2016
John H. Scanlon, IV, Assistant District Attorney, Scranton, for Commonwealth, appellee.
BEFORE: STABILE, J., SOLANO, J.,
OPINION BY SOLANO, J.:
Appellant, Michael A. Flowers, appeals from the judgment of sentence entered following the revocation of his placement in State Intermediate Punishment,1 which was imposed after he pled guilty to four counts of theft by unlawful taking.2 For the reasons that follow, we vacate Appellant‘s judgment of sentence and remand for re-sentencing.
The trial court summarized the factual and procedural history relevant to this case as follows: Under Docket No. CP-35-CR-0002248-2011, Appellant was charged with four counts of Theft by Unlawful Taking, in violation of
On January 26, 2012, Appellant entered an open guilty plea to four counts of Theft by Unlawful Taking in the Lackawanna County Drug Treatment Court, which is designed to help certain illegal drug users receive treatment, achieve drug abstinence, and ultimately have their cases dismissed. At that time, the remaining charges against Appellant were withdrawn.
On October 1, 2013, Appellant was terminated from the Lackawanna County Treatment Court program, based upon the following violations:
- 5/9/2012: Missed color [a drug testing requirement] and appointment with Tony Villano, sanction[ed] to one weekend in Lackawanna County prison.
- 5/18/2012: Admitted to using suboxone and heroin, placed in Lackawanna County prison, assessed for treatment.
- 9/29/2012: Missed color, week sanction.
- 10/11/2012: Tested positive for suboxone, placed in Lackawanna County prison.
- 2/2/2013: Tested positive for opiates at Salvation Army, placed in Lackawanna County prison, allowed re-entry to Salvation Army program on 2-25-13.
- 6/26/2013: [Appellant] caught stealing from Salvation Army, and admitted to doing so; placed in Lackawanna County prison.
Trial Court Opinion, 3/1/16, at 2-3. Appellant‘s guilty plea was accepted and sentencing was deferred pending referral to the Department of Corrections for an evaluation and eligibility assessment to determine Appellant‘s potential suitability for State Intermediate Punishment (SIP), a two-year program designed to move offenders from confinement to in-patient treatment, then to supervised out-patient treatment, and ultimately to reintegration into the community. Id. at 3.
On May 13, 2014, the trial court received the Department of Corrections’ recommendation that Appellant would benefit from the SIP program. Thereafter, on June 9, 2014, the court sentenced Appellant on Count One to two years in the SIP program. It sentenced him to two years’ probation each on Counts Two, Three, and
On September 18, 2015, the court received notice that Appellant had been expelled from the SIP program due to his failure to comply with administrative and disciplinary guidelines, including repeated violations regarding substance abuse during SIP. On November 9, 2015, the court resentenced Appellant as follows: 2-5 years’ incarceration on Count One, 1-3 years’ incarceratiоn plus two years’ probation on Count Two, 1-2 years’ incarceration plus two years’ probation on Count Three, and two years’ probation on Count Four, for an aggregate sentence of 4-10 years’ incarceration, followed by six years’ probation. On November 18, 2015, Appellant filed a timely Motion for Reconsideration of Sentence, which the court denied by an order dated December 1, 2015, and entered on December 2, 2015. Id. at 3-4. On December 28, 2015, Appellant filed a Notice of Appeal to this Court.
On appeal, Appellant raises two sentencing issues fоr our review:
- Whether the lower court failed to articulate sufficient reasons or any reasons for the sentences imposed?
- Whether the sentences imposed by the lower court were excessive in light of all of the factors presented?
Appellant‘s Brief at 4. In an opinion, the sentencing court expressed the view that, in light of Appellant‘s termination from SIP for repeated drug use violations, the reasons for the sentences were clear and that it neither imposed an illegal sentence nor abused its discretion. Trial Court Opinion, 3/1/16, at 10-14.
Jurisdiction
We begin by determining whethеr we have appellate jurisdiction. Appellant challenges the discretionary aspects of his sentence. Our jurisdiction to hear such a challenge is discretionary, and we may not exercise our discretion to review such an issue unless we first determine that: (1) the appeal is timely; (2) Appellant preserved his issue; (3) Appellant‘s brief includes a concise statement of the reasons relied upon for allowance of an appeal with respect to the discretionary aspects of his sentences, as required by
The second, third, and fourth of these requirements are met here. Appellant preserved his sentencing challenge in his November 18, 2015 petition for reconsideration of sentence, and he included a separate Rule 2119(f) concise statement in his appellate brief. See Appellant‘s Brief at 9-10. In additiоn, Appellant has raised a substantial question for our review by asserting that the trial court failed to state adequate reasons on the record for Appellant‘s sentence. See Commonwealth v. Oliver, 693 A.2d 1342, 1347-48 (Pa. Super. 1997) (claim that sentencing court failed to state adequate reasons for sentence imposed presents substantial question regarding appropriateness of sentence).
The pivotal question, then, is whether Appellant filed a timely notice of appeal. Like most other appeals, an appeal from a sentence imposed after revocation of intermediate punishment must be filed within 30 days after imposition of the new sentence. See
Appellant argues, however, that he filed his appeal late because the trial court provided him with incorrect information about the appeal deadline, and that his late filing therefore should be еxcused because the misinformation constituted a breakdown of the judicial process. See Appellant‘s Brief at 6-7, citing Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003), and Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001). Notably, the Commonwealth agrees. See Commonwealth‘s Brief at 3. After careful review of the record, we also agree.
Rule 704(C)(3) of the Rules of Criminal Procedure provides that at the time of sentencing, the sentencing judge “shall determine on the record that the defendant has been advised of ... the right to file a post-sentence motion and to appeal, of the time within which the defendant must exercise those rights, and of the right to assistance of counsel in the preparation of the motion and appeal. [Emphasis added.]” The transcript of the sentencing proceeding on November 9, 2015 discloses that the trial court did not provide Appellant with information about when he could appeal, but that the court instead presided while the following colloquy occurred between Appellant and his trial counsel:
[DEFENSE COUNSEL]: Michael, you have a right to file a reconsideration of sentence within 10 days if you‘re not satisfied with the sentence imposed. You also have 30 days—
[APPELLANT]: How do I do that?
[DEFENSE COUNSEL]: You can let me know and I can file that. You can do it in writing.
[APPELLANT]: I‘d like a reconsideration if possible.
[DEFENSE COUNSEL]: Okay, and you also have a right to file an appeal within 30 days from the date of sentence or from the disposition on the reconsideration.
[APPELLANT]: Okay.
[DEFENSE COUNSEL]: Okay, I‘ll file that for you.
[APPELLANT]: Yes. Thank you.
N.T., 11/9/15, at 3-4 (emphasis added). Counsel‘s statement that Appellant could file his appeal “within 30 days ... from the disposition on the [motion for] reconsideration” was erroneous, but the trial court did not correct that statement. The court therefore did not assure that Appellant had been properly advised of the correct appeal deadline pursuant to Rule 704(C)(3).
Moreover, when the trial court denied Appellant‘s motion for reconsideration of his sentence in its December 1, 2015 order, thе order stated, “You have the right to appeal this decision but you must do so within thirty (30) days of the date of this Order.” That statement in the court‘s order dated December 1, 2015 was erroneous. The final order from which an appeal may be taken in a criminal case is the judgment of sentence, not an order disposing of a post-sentence motion. Commonwealth v. Harper, 890 A.2d 1078, 1081 (Pa. Super. 2006). Even when an order disposing of a post-sentence motion extends the 30-day appeal period under Criminal Rule 720, the appeal is still from the order imposing sentence, because a “direct appeal in a criminal proceeding lies from the judgment of sentence.” See Commonwealth v. Preacher, 827 A.2d 1235, 1236 n.1 (Pa. Super. 2003). Here, under Rule 708(E), there was no extension of the 30 days. The order‘s statement that Appellant could appeal within 30 days of its December 1, 2015 order was incorrect.
In Parlante, the trial court imposed a new sentence after revoking the defendant‘s parole, and, when doing so, told the defendant that she could appeal 30 days after denial of a post-sentence motion. 823 A.2d at 929. As a result, the defendant did not file her appeal until after her motion was denied, by which time more than 30 days had expired from the imposition of sentence. We declined to quash the appeal, explaining that the late appeal “resulted from the trial court‘s misstatement of the appeal period, which operated as a ‘breakdown in the court‘s operation.‘” Id., quoting Coolbaugh, 770 A.2d at 791. The same is true here. The trial court‘s error in failing to correct the erroneous information provided to Appellant at the time of sentencing, despite its obligation to assure that correct information was provided under Rule 704(C), coupled with the further error in the information provided in the court‘s December 1, 2015 order, constituted a “breakdown in the court‘s operation” that excuses Appellant‘s late filing of his appeal. We therefore decline to quash the appeal as untimely.
Because Appellant has met the threshold requirements for our exercise of jurisdiction, we accept the appeal and proceed to the merits.
The Merits
Preliminarily, we recognize—as do the trial court and Commonwealth—
As noted, SIP is a two-year program designed to benefit cеrtain criminal offenders with drug and alcohol problems. Treatment in the program “is a privilege granted at the discretion of the sentencing court.” Kuykendall, 2 A.3d at 565. During the two-year program, the sentenced individual progresses from incarceration to inpatient drug treatment, outpatient treatment and supervision, and, finally, reintegration into the community.
Under
Appellant concedes that he was expellеd from the SIP program. N.T., 11/9/15, at 2. He does not challenge the trial court‘s exercise of its discretion to revoke his participation in the program. Cf. Commonwealth v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (revocation of parole is a matter committed to the sound discretion of the trial court, and that court‘s decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion). Instead, Appellant limits his challenge to the trial court‘s imposition of new sentences upon revocation of his SIP program participation. In particular, he asserts that the trial court аbused its discretion when it failed to state its reasons for Appellant‘s sentences on the record in violation of Pennsylvania Rule of Criminal Procedure 708, which states, “[t]he judge shall state on the record the reasons for the sentence imposed.”
Appellant notes that, although he was expelled from SIP, he did not commit a new crime. Nevertheless, he was given lengthy new sentences on each count which exceeded the benchmarks in the sentencing guidelines. He contends that his new sentences were “punishment for his failure to complete SIP.” Appellant‘s Brief at 14. Hе argues:
The Appellant suffers from drug addiction issues. He asserts that to impose lengthier sentences upon being expelled from SIP than what was originally imposed is a punishment for his failure to complete the program. He contends that the new sentences were not warranted by the facts surrounding the violations or by the necessity to protect the public. He maintains that the sentences imposed are inconsistent with the sentencing guidelines, contrary to the fundamental norms of the sentencing process and fail to consider his personal life situation.
Id. at 14-15. Appellаnt asserts that there is nothing in the record from his sentencing proceeding to allow him to determine whether the sentences were based upon accurate, sufficient, and proper information, and he argues that the current record is not sufficient for this Court to determine whether the trial court abused its discretion when it imposed the sentences. He therefore asks that this matter be remanded for the trial court to conduct an appropriate review of the facts surrounding his participation in the SIP program; determine the nature and circumstances of his violations, his participation history, and the levels of the program he completed; and set forth the findings upon which his new sentences were based. Appellant‘s Brief at 11-12.
In response, the Commonwealth acknowledges that the trial court is required to articulate sufficient reasons on the rec-
This Court was informed of both the sentencing guidelines and ... Memoranda and Recommendations of the Lackawanna County Adult Probation and Parole Department. Moreover, for the instant matter, the Appellant was before the Court for sentenсing following his termination from State Intermediate Punishment, the sentence he received after his termination from the Lackawanna County Drug Treatment Court Program. The violation is clearly the reason for the revocation and sentence. Moreover, Appellant has been before this Court and under its supervision for a considerable length of time. In addition to this Court‘s observations, the record is replete with information regarding the Appellant‘s character and history. Furthermore, Appellant was terminated for violations in both Treatment Court and State Intermediate Punishmеnt, demonstrating Appellant‘s disrespect for this Court‘s authority and the repeated assistance that has been provided.
Id. at 10.
The Sentencing Code governs this issue. The Code provides that upon revocation of SIP, a sentencing court has the same sentencing alternatives that were available to it at the time of initial sentencing.
Insofar as is relevant herе, the requirement that a trial court explain its sentence under Section 9721 and corresponding Criminal Rule 708 has two components. First, the court must state its reasons on the record at the time the sentence is imposed. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140, 143 (1977); Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336, 1338 (1990)
Second, although “[a] sentencing court neеd not undertake a lengthy discourse for its reasons for imposing a sentence, ... the record as a whole must reflect the sentencing court‘s consideration of the facts of the crime and character of the offender.” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010). A “discourse on the court‘s sentencing philosophy, as it applies to the defendant before it, is not required.” Commonwealth v. Hill, 427 Pa.Super. 440, 629 A.2d 949, 953 (1993). But “the reasons must reflect the judge‘s consideration of the sentencing code, the circumstances of the offense and the character of the offender.” Beasley, 570 A.2d at 1338; see also Hill, 629 A.2d at 953 (“Simply put, the sentencing judge must state his or her reasons for the sentence imposed“).
Mindful of these precepts, we turn to the record before us. The notes of testimony from the November 9, 2015 SIP revocation hearing read as follows:
THE COURT: Mr. Flowers? Hello?
[APPELLANT]: Hello, Your Honor, Michael Flowers.
THE COURT: Michael, how are you?
[APPELLANT]: I‘m well. I‘ve been better.
THE COURT: Okay, I received back a letter from the Department of Corrections indicating that you have been terminated from the program.
[APPELLANT]: Yes, sir.
THE COURT: Attorney [for Appellant]?
[DEFENSE COUNSEL]: Judge, I reviewed the file and it appears to me that [Appellant‘s] prior record score is rather low. The standard ranges for each offense would be RS to 1. He does have 1278 days credit for this offense. He is ready to max out in December, so I would just ask for time served.
THE COURT: [Appellant], anything you‘d like to say before I impose sentence?
[APPELLANT]: Your Honor, the last four years of my life I‘ve been on two different programs, I‘ve learned a lot about myself. I‘ve learned a lot about addiction. You know, I know that I‘m a good person, I just have a bad problem. Really I just want to thank you for the opportunities that you‘ve given me. I know that I haven‘t really shown through them [sic], but I have learned a lot. So it wasn‘t a complete waste.
THE COURT: All right, Michael. In regard to 11 CR 2248, Count 1, the
court will be sentencing you to two to five years on Count 1. One to three years plus two years’ probation on Count 2. Count 3, one to two years plus two years’ probation; and on Count four, two years’ probation. That will be an aggregate of 4 to 10 years plus 6 years’ probation. You must follow through on all your aftercare programs and everything required on parole. Thank you. [Defense Counsel?]
N.T., 11/9/15, at 2-3. Thereafter followed the colloquy between Appellant and defense counsel about post-trial proceedings that is quoted earlier in this opinion.
The notes of testimony show that at the time of sentencing, the trial court failed to state “on the record the reasons for the sentence imposed,” in contravention of Section 9721(b) of the Sentencing Code and Criminal Rule 708(D)(2). The court may have believed that its reasons seemed apparent, and we note that defense counsel did not object. Nevertheless, the court‘s failure to comply with the requirements set forth in the rule and statute at issue is reversible error. Accordingly, we are constrained to remand this matter to the trial court for re-sentencing, at which time the court shall comply with Criminal Rule 708(D)(2) and articulate adequate reasons for the new sentence. Because our disposition renders Appellant‘s second issue, in which he asserts that his sentence is excessive, as yet unripe, we decline to address it.
Judgment of sentence vacated. Case remanded for re-sentencing and articulation of the reasons for the sentence imposed. Jurisdiction relinquished.
SOLANO, J.