Case Information
PA Super 230 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
MICHAEL A. FLOWERS
Appellant No. MDA 2016 Appeal from the Judgment of Sentence dated November 9, 2015 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP- 35 -CR- 0002248 -2011 BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.* FILED OCTOBER 2016
OPINION BY SOLANO, J.: Appellant, Michael A. Flowers, appeals judgment of sentence entered following the revocation placement State Intermediate Punishment,' which was after pled guilty four counts of theft by unlawful taking.2 For follow, we vacate Appellant's judgment of sentence remand re- sentencing. summarized the factual procedural history relevant this case follows: Under Docket No. CP- 35 -CR- 0002248 -2011, charged with four counts of Theft Unlawful Taking, in
[*] Former Justice specially assigned the Superior Court.
' 61 Pa.C.S. §§ -4109. 18 Pa.C.S. § 3921. violation of Pa. C.S. § 3921(a), four counts of Receiving Stolen Property, in violation 18 Pa.C.S. § 3925(a). These charges stemmed from July 15, report Scranton Police in which the victim stated her son discovered bag her jewelry Appellant's possession when Appellant was the hospital. Upon further investigation, Scranton Police discovered additional jewelry owned by victim Appellant sold at local pawn shop. Trial Court Opinion, 3/1/16, -2.
On January 26, 2012, Appellant entered open guilty plea four counts of Theft Unlawful Taking in Lackawanna County Drug Treatment Court, which designed to help certain illegal drug users receive treatment, achieve drug abstinence, ultimately have their cases dismissed. At time, the remaining charges against Appellant were withdrawn.
On October 2013, terminated from Lackawanna County Treatment Court program, based upon the following violations:
5/9/2012: testing Missed color [a drug
requirement] appointment with Tony Villano, sanction[ed] one weekend Lackawanna County prison.
5/18/2012: Admitted to using suboxone heroin, placed Lackawanna County prison, assessed for treatment.
9/29/2012: Missed color, week sanction. -2
10/11/2012: Tested positive for suboxone, placed in Lackawanna County prison.
2/2/2013: for opiates at Tested positive 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, admitted to Lackawanna doing so; placed County prison.
Trial Court Opinion, 3/1/16, at -3. Appellant's guilty plea was accepted sentencing deferred pending referral to Department of Corrections for evaluation eligibility assessment to determine Appellant's potential suitability State Intermediate Punishment (SIP), two -year program designed move offenders from confinement to in- patient treatment, then supervised out - patient treatment, ultimately reintegration into the community. Id. at 3.
On May 13, 2014, the trial court received Department of Corrections' recommendation Appellant would benefit from SIP program. Thereafter, June 9, 2014, the sentenced on Count One two years SIP program. It sentenced him to two years' probation each Counts Two, Three, and Four, to run consecutively, an aggregate sentence of two years SIP followed six years' probation. also ordered restitution the amount $4,300.00. Id. 3.
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On September 18, 2015, the court received notice Appellant had been expelled from the SIP program due to failure comply with administrative and disciplinary guidelines, including repeated violations regarding substance abuse during SIP. On November 9, 2015, the court resentenced Appellant follows: 2 -5 years' incarceration on Count One, 1- years' incarceration plus two years' probation on Count Two, [1] -2 years' incarceration plus two years' probation Count Three, two years' probation Count Four, for an aggregate sentence of 4 -10 years' incarceration, followed by six years' probation On November 18, 2015, Appellant filed timely Motion for Reconsideration of Sentence, which the denied by an order dated December 1, 2015, entered on December 2015. Id. at [3] -4. On December 28, 2015, Appellant filed Notice Appeal to this Court.
On appeal, raises two sentencing issues for our review: 1. Whether the lower court failed to articulate sufficient reasons or any reasons for the sentences imposed? 2. Whether the sentences imposed the lower court were excessive light of all of the factors presented? Appellant's Brief at 4. In an opinion, the sentencing expressed view that, light of Appellant's termination SIP repeated drug use violations, the the sentences were clear it neither illegal sentence nor abused its discretion. Trial Court Opinion, 3/1/16, -14.
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Jurisdiction
We begin by determining whether we have appellate jurisdiction. challenges the discretionary aspects of his sentence. Our jurisdiction to hear such a challenge is discretionary, we may not exercise our discretion to review such an issue unless we first determine (1) the appeal is timely; (2) Appellant preserved issue; (3) that: Appellant's brief includes a concise statement of the reasons relied upon for allowance of an appeal with respect to discretionary aspects of his sentences, as required Rule 2119(f) of the Pennsylvania Rules of Appellate Procedure; (4) that concise statement raises a substantial question that the sentences were inappropriate under the Sentencing Code. Commonwealth v. Colon, 102 A.3d 1042 -43 (Pa. Super. 2014).3 If The third fourth of these requirements arise because General Assembly has provided that a challenge to discretionary aspects of a sentence is not appealable as right. Edwards, 71 A.3d 323, 330 2013). Instead, to invoke this Court's power review the discretionary aspects of a sentence, appellant must petition the Court exercise discretionary jurisdiction under Section 9781(b) of the Sentencing Code, 42 Pa. C.S. § 9781(b). Section 9781(b) provides: "The defendant or the Commonwealth may file a petition for allowance of appeal discretionary aspects sentence . the appellate that . . has initial jurisdiction for such appeals. Allowance of appeal may granted at the discretion of the appellate where it appears that there substantial question appropriate under this chapter." Supreme Court of Pennsylvania has held notice of appeal operates as petition allowance of appeal under this section so long the appellant's brief then includes statement under 2119(f) sets forth sufficient this Court exercise discretionary (Footnote Continued Next Page)
-5 appeal satisfies each of these prerequisites, we may accept it
proceed to substantive merits of the case. Id.
The second, third, fourth of these requirements are met here. preserved his sentencing challenge his November 2015 petition for reconsideration of sentence, included a separate Rule 2119(f) concise statement appellate brief. See Appellant's Brief at 9- In addition, Appellant has raised a substantial question our review 10. asserting failed state adequate reasons for Appellant's sentence. See Commonwealth v. Oliver, 693 A.2d 1342, 1347 -48 (Pa. 1997) (claim that sentencing failed to state adequate sentence imposed presents substantial question regarding appropriateness of sentence). pivotal question, then, whether Appellant filed a timely notice of
appeal. Like most other appeals, appeal sentence after revocation intermediate punishment must filed within days after imposition of the new sentence. See Pa. R. App. P. 903(a). In contrast other sentencing situations which the filing of post- sentence motion extends the appeal period until after the motion has been decided, see Pa. R. Crim. P. 720(a)(2), the filing of motion modify imposed after revocation of parole or intermediate punishment does toll the 30- (Footnote Continued)
jurisdiction. See Commonwealth v. Tuladziecki, A.2d 17, -20 (Pa. 1987); see also Gambal, A.2d 710 1988).
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day appeal period. Pa. R. Crim. P. 708(E).4 Here, Appellant was sentenced on November 9, 2015. He moved for reconsideration of his on November 18, 2015, denied motion order dated December 1, 2015, which was stamped entered December 2, 2015. Appellant appealed December 28, 2015, which was within 30 days of the order denying his motion reconsideration, but more than 30 days from the November 2015 order imposing Appellant's sentence. Accordingly, Appellant's appeal untimely. argues, however, filed appeal late because the
trial court provided him with incorrect information about the appeal deadline, his late filing therefore should be excused because misinformation constituted breakdown of the judicial process. See Appellant's Brief at 6 -7, citing Commonwealth v. Parlante, 823 A.2d 927, (Pa. Super. 2003), Commonwealth v. Coolbaugh, 770 A.2d 788, (Pa. Super. 2001). Notably, the Commonwealth agrees. See 791 A note to provides:
Under this rule, the mere filing of motion modify sentence does affect the running of the -day period filing timely notice of appeal. Any appeal must filed within the 30- day period unless the sentencing judge within days of the imposition of sentence expressly grants reconsideration or vacates the sentence. See Coleman, 721 A.2d 798, 799, n.2 1998). See also Pa.R.A.P. 1701(b)(3).
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Commonwealth's Brief 3. After careful review of the record, we also agree. 704(C)(3) of the Rules of Criminal Procedure provides at the
time of sentencing, the sentencing judge "shall determine on the that . right to file post- sentence the defendant has been advised of . . motion and to appeal, time within which the defendant must exercise those rights, and of the right assistance of counsel the preparation motion appeal. [Emphasis added.]" transcript of the sentencing proceeding November 2015 discloses trial did provide Appellant with information about when could appeal, but the court instead presided while the following colloquy occurred between counsel: Michael, you have right file
[DEFENSE COUNSEL]: reconsideration of sentence within days if you're not satisfied with sentence imposed. You also have 30 days-
[APPELLANT] : How do I do that? You can let me know and I can
[DEFENSE COUNSEL]: file that. You can do it in writing. I'd like reconsideration if
[APPELLANT] :
possible. Okay, you also have right
[DEFENSE COUNSEL]: file appeal within days from date of sentence or disposition reconsideration.
-8-
J-S50039-16
[APPELLANT] : Okay. Okay, I'll file that you.
[DEFENSE COUNSEL]: Yes. Thank you. [APPELLANT]:
N.T., 11/9/15, [3] -4 (emphasis added). Counsel's statement Appellant could file his appeal "within 30 days ... from the disposition [motion for] reconsideration" was erroneous, but the did correct that statement. The court therefore did not assure Appellant had been properly advised of the correct appeal deadline pursuant Rule 704(C)(3).
Moreover, when trial court denied Appellant's motion for reconsideration of December 1, 2015 order, the order stated, "You have right appeal this decision but you must do so within thirty (30) days date of this Order." That statement the court's order dated December 1, 2015 was erroneous. final order from which an appeal may taken criminal case the judgment of sentence, not an order disposing of post- sentence motion. Commonwealth v. Harper, 890 A.2d 1078, (Pa. Super. 2006). Even when order disposing of post- sentence motion extends the -day appeal period under Criminal Rule 720, appeal still from the order imposing sentence, because "direct appeal criminal proceeding lies judgment sentence." See Preacher, 827 A.2d 1235, 1236 n.1 2003). Here, under 708(E), there was no extension of the days. The order's statement could appeal within days its December order incorrect.
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In Parlante, the trial new sentence after revoking the defendant's parole, and, when doing so, told the defendant that she could appeal 30 days after denial of post- sentence motion. 823 A.2d at 929. As result, the defendant did not file her appeal until after her motion was denied, 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 appeal period, which court's operation. ' Id., quoting operated as a 'breakdown in
Coolbaugh, 770 A.2d at 791. The same true here. The trial court's error failing correct the erroneous information provided to Appellant at the time sentencing, despite obligation to assure correct information was provided under 704(C), coupled with further error information provided the court's December order, constituted "breakdown court's operation" excuses Appellant's late filing of appeal. We therefore decline to quash appeal as untimely.
Because has met the threshold requirements our exercise of jurisdiction, we accept the appeal proceed to merits.
The Merits
Preliminarily, we recognize - do Commonwealth - Appellant's SIP analogous sentence of probation. See Trial Court Opinion at 10; Commonwealth's Brief (both citing Kuykendall, A.3d 559, -564 2010)). We review a following a revocation of probation for an error of law or an abuse of discretion. Colon, 102 A.3d at 1041. Accordingly, we apply same standard in reviewing revocation of Appellant's SIP sentence. See Kuykendall, 2 A.3d at 563 (dictum).5 "An abuse of discretion is not merely an 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, shown by the evidence or the record, discretion is abused." Burns, A.2d Super. 2009) (en banc) (quoted citations omitted).
As noted, SIP a two -year program designed benefit certain criminal offenders with drug and alcohol problems. Treatment in the program "is privilege granted at the discretion of sentencing court." Kuykendall, A.3d 565. During two -year program, the sentenced individual progresses incarceration in- patient drug treatment, out- patient treatment supervision, and, finally, reintegration into the The focus Kuykendall whether revocation of SIP subsequent resentencing implicate double jeopardy. We held they did not, since revocation not second punishment original conviction, but rather integral element of original conditional SIP sentence. question this case, concerning effect of sentencing court's violation of Criminal 708(D)(2), requiring statement specific imposition revocation sentence, was not at issue Kuykendall does appear have yet been addressed published opinion.
community. 61 Pa.C.S. § 4105(b); see Kuykendall, 2 A.3d 560.6 The program gives Department of Corrections "maximum flexibility" [6] Section 4105(b) provides:
Notwithstanding any credit to which the defendant may be entitled under Pa.C.S. § (relating to credit for time served), duration of drug offender treatment program shall be months shall include the following:
(1) A period State correctional institution of less than seven months. This period shall include: (i) time during which the defendants are being evaluated by department under section 4104(b) (relating referral State intermediate punishment program).
(ii) Following evaluation under subparagraph (i), not than four months shall be institutional less an therapeutic community. A period of treatment
(2) community -based therapeutic community of at least two months.
(3) A period at least six -months' treatment through an outpatient addiction treatment facility. During the outpatient addiction treatment period of the drug offender treatment program, the participant may housed community corrections center or group home or placed in approved transitional residence. The participant must comply with any conditions established department regardless of where the participant resides during the outpatient addiction treatment portion of the drug offender treatment program.
(4) A period supervised reintegration into community balance drug offender treatment program, during which the participant shall continue be (Footnote Continued Next Page)
"transfer a participant back and forth between less restrictive and more restrictive settings." 61 Pa.C.S. § 4105(c)(2).7
Under Section 4105(f)(3), "A participant may be expelled from the drug offender treatment program at any time accordance with guidelines failure established by the department, including comply with administrative or disciplinary procedures or requirements set forth by department." Pa. C.S. § 4105(f)(3). Section 9774 of the Sentencing Code provides if a SIP participant expelled, the trial court may revoke a participant's SIP after a hearing. At point, "the sentencing alternatives available the shall the same the alternatives available at the time of initial sentencing." Pa.C.S. § 9774(c). concedes expelled SIP program. N.T.,
11/9/15, at 2. He does not challenge the court's exercise of its discretion revoke participation the program. Cf. Commonwealth Mazzetti, A.3d 228, 230 2010) (revocation of parole (Footnote Continued)
supervised by department and comply with any conditions department.
[7] Section 4105(c)(1) states: "Consistent with minimum time requirements set forth subsection (b), department may transfer, its institution, an discretion, participant between State correctional institutional therapeutic community, community -based therapeutic community, outpatient addiction treatment program an approved transitional residence. department may also transfer participant back forth between less restrictive more restrictive settings based upon treatment or medical, participant's progress or regression disciplinary or other administrative reasons."
matter committed to the sound discretion trial court, and that court's decision will not disturbed on appeal the absence an error of law or abuse discretion). Instead, Appellant limits his challenge to the trial court's imposition of new sentences upon revocation of his SIP program In particular, he asserts that the abused participation. its discretion when it failed to state reasons Appellant's sentences the record violation of Pennsylvania of Criminal Procedure 708, which states, "[t]he judge shall state record the sentence imposed." Pa.R.Crim.P. 708(D)(2).
that the current record sufficient for this Court to determine whether the trial court abused its discretion when it the sentences. He therefore asks that this matter remanded for the trial court to conduct an appropriate review of the facts surrounding his participation the SIP program; determine the nature and circumstances his violations, his participation history, and the levels program completed; and set forth the findings upon which new sentences were based. Appellant's Brief at 11 -12.
In response, the Commonwealth acknowledges that trial is required to articulate sufficient reasons record for sentence imposed, but avers trial court this instance gave "adequate" reasons for its sentences referencing Appellant's violation his SIP sentence. The also refers court's Rule 1925(a) opinion, which the explained reasons for having imposed the sentences at issue. Commonwealth's Brief at -7. In 1925(a) opinion, the trial court acknowledged the mandate state the for sentences imposed maintained it satisfied the requirement do so. Trial Court Opinion, 3/1/16, 9. trial court explained:
This Court was informed of both the sentencing guidelines . Memoranda Recommendations of the . . Lackawanna County Adult Probation Parole Department. Moreover, the instant matter, the before the Court sentencing following his termination State Intermediate Punishment, sentence received after termination from Lackawanna County Drug Treatment Court Program. The violation clearly the reason for the revocation and sentence. Moreover, has been before this Court and under supervision for a considerable length of time. In addition this Court's observations, the is replete with information Appellant's regarding character and history. Furthermore, Appellant was terminated for violations both Treatment Court State Intermediate Punishment, demonstrating Appellant's disrespect for this Court's authority and the repeated assistance has been provided.
Id. 10. Sentencing Code governs this issue. The Code provides upon
revocation of SIP, a sentencing court has same sentencing alternatives were available to it at time of initial sentencing. 42 Pa.C.S. § 9774(c). But Code also mandates that when offender resentenced following revocation of State Intermediate Punishment, the court shall "make as a part of the record, disclose open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed." See Cartrette, A.3d 1041 2013) (en banc) (quoting Pa. C.S. § 9721(b)).8 Appellant's drug treatment Section 9721(b) provides: "In every case which the court imposes for felony or misdemeanor, modifies sentence, resentences an offender following revocation probation, county intermediate punishment or State intermediate punishment or resentences following remand, the shall make part of the record, disclose open at the time sentencing, statement reason or the sentence imposed.... Failure comply shall grounds vacating the sentence or resentence resentencing defendant."
program a State Intermediate Punishment program, 61 Pa. C.S. § 4105(a), and this Code requirement therefore is directly applicable here. Failure to comply with it "shall grounds for vacating the sentence or resentence and resentencing the defendant." Cartrette, 83 A.3d at 1041; see also Commonwealth v. Rudy, 450 A.2d 102 (Pa. Super. 1982) (in absence explanation, remand for re- sentencing and articulation of the reasons for a new sentence after the revocation is warranted).
Insofar is relevant here, requirement a trial court explain its sentence under Section 9721 corresponding Criminal Rule 708 has two components. First, court must state its reasons at the time the sentence imposed. See Commonwealth v. Riggins, 377 A.2d (Pa. 1977); Commonwealth v. Beasley, 570 A.2d 1336, 1338 (Pa. 1990) ( "A sentencing court has statutory duty to disclose in open court at the time of sentencing statement reasons for the sentence imposed "). Requiring the sentencing to state its reasons time provides procedural mechanism for the aggrieved party both to attempt rebut court's explanation inclination before the sentencing proceeding ends, identify frame substantive claims post - sentence motions or appeal. Commonwealth v. Reaves, 923 A.2d 1119, 2007). Therefore, contrary the Commonwealth's suggestion in this case, it sufficient state post - 1925(a) opinion. See Giles, A.2d 641 (Pa. Super. 1982) (rejecting argument the failure state reasons at the time of sentencing can be remedied stating them later opinion); see also Commonwealth v. Harris, 457 A.2d 572, 574 -575 (Pa. Super. 1983). The reasons must given "in open at the time of sentencing." 42 Pa. C.S. § 9721(b).
Second, although "[a] sentencing need not undertake lengthy discourse reasons for imposing sentence, ... the as whole must reflect the sentencing court's consideration of the facts of the crime character of offender." Commonwealth Crump, 995 A.2d 1280, (Pa. Super. 2010). A "discourse court's sentencing philosophy, it applies defendant before it, required." v. Hill, 629 A.2d 949, 1993). But "the must reflect judge's consideration of the sentencing code, the circumstances of the offense character 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 the sentence imposed "). I'm well. I've been better.
[APPELLANT] : letter Okay, I received back a THE COURT: from the Department of Corrections indicating you have been terminated from program.
[APPELLANT] : Yes, sir. Attorney [for Appellant]? THE COURT: Judge, I reviewed the file it [DEFENSE COUNSEL]: appears to me [Appellant's] prior record score rather low. standard ranges each offense would be RS 1. He does have 1278 days credit for this offense. He ready max out December, so I would just ask for time served. [Appellant], anything you'd like THE COURT: to say before I impose sentence? Your Honor, last four years
[APPELLANT] : of my life I've been two different programs, I've learned lot about myself. I've learned lot about addiction. You a know, I know that I'm good just have bad person, I problem. Really I just want to thank you opportunities you've given me. I know that I haven't really shown through them [sic], but I have lot. So it wasn't a learned complete waste. All right, Michael. In regard to
THE COURT: CR Count 1, court will sentencing you two to five years Count 1. One three years plus two years' probation Count 2. Count 3, one to two years plus two years' probation; and on Count four, two years' probation. That will aggregate of 10 years plus years' probation. You must follow through on all your aftercare programs everything required parole. Thank you. [Defense Counsel ?] N.T., 11/9/15, at -3. Thereafter followed the colloquy between Appellant and defense counsel about post -trial proceedings that is quoted earlier in this opinion.
Judgment of sentence vacated. Case remanded re- sentencing the sentence articulation of reasons imposed. Jurisdiction relinquished.
Judgment Entered.
J: seph D. Seletyn,
Prothonotary
Date: 10/24/2016 Appellant notes that, although he was expelled from SIP, he did not commit new crime. Nevertheless, he was given lengthy new sentences on each count which exceeded the benchmarks the sentencing guidelines. He contends that his new sentences were "punishment for his failure complete SIP." Appellant's Brief at 14. He argues: Appellant suffers from drug addiction issues. He asserts that to impose lengthier sentences upon being expelled from SIP than what originally imposed punishment for his failure to complete the program. He contends new sentences were not warranted the facts surrounding the violations or by the necessity to protect public. He maintains sentences are inconsistent with the sentencing guidelines, contrary to fundamental norms of the sentencing process fail consider personal life situation. Id. -15. asserts there nothing his sentencing proceeding allow him determine whether the sentences were based upon accurate, sufficient, proper information, argues
Mindful of these precepts, we turn record before us. notes testimony from the November SIP revocation hearing read as follows: Mr. Flowers? Hello? THE COURT: [APPELLANT]: Hello, Your Honor, Michael Flowers. THE COURT: Michael, how are you?
The notes testimony show that time of sentencing, the trial court failed to state "on the reasons the sentence imposed," in contravention of Section 9721(b) Sentencing Code and Criminal Rule 708(D)(2). may have believed reasons seemed apparent, we note defense counsel did object. Nevertheless, the court's failure comply with the requirements set forth rule statute at issue reversible error. Accordingly, we are constrained to remand this matter court for re- sentencing, at which time shall comply with Criminal 708(D)(2) articulate adequate new sentence. Because our disposition renders Appellant's second issue, in which asserts excessive, yet unripe, we decline to address it.