J-S78008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER MUMMERT,

                            Appellant                 No. 1748 WDA 2015


     Appeal from the Judgement of Sentence Entered September 30, 2015
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0001295-2010


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED DECEMBER 7, 2016

        Appellant, Christopher Mummert, appeals from the judgment of

sentence of 2-8 years’ incarceration, imposed following the revocation of his

probation imposed for two sexual offenses. Specifically, Appellant contends

that the sentencing court erred by increasing the length of his sentence

following the granting of his post-sentence motion (PSM).         After careful

review, we affirm.

        The sentencing court summarized the pertinent factual and procedural

history of this case as follows:

              In 2010, [Appellant] was charged with Statutory Sexual
        Assault, Aggravated Indecent Assault, Indecent Assault, and
        Corruption of Minors, for alleged sexual acts with D.B., a female
        juvenile born [in] March [of] 1996. On February 22, 2011,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     [Appellant] pled guilty to Statutory Sexual Assault [("Count 1")]
     and Unlawful Contact with Minors (reduced from Aggravated
     Indecent Assault) [("Count 2")]. On June 14, 2011, the trial
     court sentenced [Appellant] on Count 1 to a term of
     imprisonment of one year less a day to two years less a day,
     with no eligibility for "good time" (early release); and on Count
     2, to five years[’] County probation, consecutive to Count 1.

           By Order dated April 10, 2012, the trial court granted
     [Appellant]'s unopposed Motion for House Arrest, with the
     following conditions:

        (1) [Appellant] shall not use a computer, smart phone, or
        any device that provides internet access at any time.

        (2) [Appellant] shall continue with counseling at least one
        time per week.

        (3) [Appellant] is not permitted to be employed for a
        period of at least three months.

        (4) [Appellant] is also DIRECTED to follow all conditions
        established by the House Arrest Coordinator.

        (5) If [Appellant] fails to comply with all conditions, his
        House Arrest shall be terminated and [Appellant] shall be
        returned to the Cambria County Prison to serve the
        remainder of his sentence.

     [Order, 4/10/12, at 1 (single page)]. [Appellant] served his
     sentence on house arrest from April 17, 2012 to June 13, 2012,
     the end of his minimum sentence.        [Appellant]'s maximum
     sentence of imprisonment ended on June 14, 2013, [ending his
     term of parole,] at which time he began his five-year term of
     probation.

            In May [of] 2015, [Appellant]'s Cambria County Probation
     Officer, Carla Templeton, received information from the Megan's
     Law Tip Line regarding [Appellant]'s alleged internet activity with
     a minor. Officer Templeton investigated the tip and learned that
     [Appellant] had moved without registering his new address; had
     a cell phone, internet access, and email access; and had been
     employed at Best Buy, an electronics department store. On May
     27, 2015, Officer Templeton filed a Petition for Probation/Parole
     Violation Hearing.



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           On June 5, 2015, the trial court conducted a
     Probation/Parole Violation Hearing, during which [Appellant]'s
     mother, Sherri Nicoletti, confirmed that she removed [Appellant]
     from her home after she caught him accessing the internet.
     Further, [Appellant] admitted that he changed his address
     without properly notifying the Pennsylvania State Police.
     [Appellant] testified that he believed his internet restriction
     applied only to his term of house arrest from April 17, 2012
     through June 13, 2012. The trial court agreed that the Order
     dated April 10, 2012 was "somewhat ambiguous" regarding
     internet usage after expiration of [Appellant]'s house arrest, but
     noted that there was "no ambiguity about [Appellant] not being
     permitted to have contact with a minor over the internet." On
     June 8, 2015, the trial court issued an Order finding [Appellant]
     "to be in technical violation of his parole for his failure to report
     a change of address with the Pennsylvania State Police" and
     continuing his sentencing pending a hearing on the merits
     regarding the "allegations that [Appellant] had inappropriate
     internet contact with a minor."

            On June 16, 2015, the trial court conducted a hearing on
     the merits. The Commonwealth failed to provide information
     regarding identification of the Megan's Law tip provider or
     evidence to establish the age of the person [Appellant] contacted
     via the internet. Following hearing, the trial court entered an
     Order reaffirming [Appellant]'s technical parole violation for
     failure to report his change of address and resentencing
     [Appellant] to immediate re-parole without credit for time on
     parole before the violation.        Additionally, the trial court
     prohibited [Appellant] from using electronic devices with internet
     capabilities for six months; prohibited [Appellant]'s employment
     by any electronics store; directed [Appellant] to cancel his cell
     phone service within seven days; allowed the Probation Office to
     regularly check [Appellant]'s cell phone; and ordered [Appellant]
     to continue weekly counseling.

           On August 6, 2015, the trial court conducted a Review
     Hearing after receiving information that [Appellant] violated his
     probation.    Officer Templeton testified that she confiscated
     [Appellant]'s cell phone and found text messages to two females
     from late July 2015. First, [Appellant] exchanged text messages
     with "Alexis," including discussions about Alexis "hitting puberty"
     and about her grandmother being "in denial that she has hit
     puberty." Second, [Appellant] exchanged text messages with
     "Me Too from Bucks County," whom [Appellant] (age 26)

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     acknowledged was at least 10 years his junior.           In both
     conversations,   [Appellant]  referenced     "sexually    explicit
     matter[s]" and exchanged nude pictures of genitalia. Further,
     [Appellant] performed numerous Internet searches for "Bucks
     County" and told "Me Too" he "was soon going to have a job and
     he would have gas money and he would come and see them."
     Both Officer Templeton and Ms. Nicoletti identified the phone as
     belonging to [Appellant].

            [Appellant]'s own evidence also supported a parole
     violation. [Appellant] presented a letter from Dr. Mary Berge
     and Associates dated August 5, 2015, indicating that Defendant
     was engaging in "regular counseling sessions" and was "doing
     well[,]" but "has continued to engage in behaviors that put him
     at risk for further offense, such that this information has been
     communicated to his probation officer." The trial court found
     that [Appellant] violated the terms of his parole and revoked his
     parole, remanding him to the Cambria County Prison to serve
     the remainder of his time, with no credit for time served on
     parole prior to revocation.

            On August 17, 2015, [Appellant] filed a "Post-Sentence
     Motion to Modify/Clarify Sentence."       On August 25, 2015,
     following a Post-Sentence Hearing, the trial court granted in part
     [Appellant]'s Motion because "[a]ll parties agree that Defendant
     was sentenced as a parole violator when in fact he should have
     been sentenced as a probation violator; therefore, [Appellant]
     will be resentenced on the probation violation." Additionally, the
     trial court granted [Appellant]'s request to postpone his
     probation violation resentencing.

           On September 30, 2015, the trial court conducted a
     Probation Violation Sentencing Hearing. The trial court found
     that [Appellant] violated the terms of his probation, revoking his
     probation and resentencing him to serve two to eight years in
     state prison, without credit for time served on parole prior to
     revocation but with credit for time served since [he was]
     detained on the probation violation.

           On October 7, 2015, [Appellant] filed a "Post-Sentence
     Motion to Modify Sentence." [Appellant] requested a downward
     modification because he believed that "a sentence [of] total
     confinement in the custody of the Department of Corrections is
     unnecessary and counter to his needs for rehabilitation" and that
     a maximum sentence of eight years was "excessive" and "not


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      tailored to him as a first-time violator." On October 13, 2015,
      the trial court conducted a Post-Sentence Hearing and denied
      [Appellant]'s request for sentence modification.

            On October 30, 2015, [Appellant] filed a timely Notice of
      Appeal to the Superior Court of Pennsylvania. On November 2,
      2015, the trial court entered an Order directing [Appellant] to
      file a Concise Statement of Errors Complained of on Appeal
      [pursuant to Pa.R.A.P. 1925(b)]. … [Appellant] timely filed his
      [Rule 1925(b) statement] on November 30, 2015.

Trial Court Opinion (TCO), 12/31/15, at 1-5 (footnotes and citations

omitted).

      Appellant now presents the following question for our review:

“Whether the sentencing court erred when it increased a probation violator’s

term of imprisonment when it did so only after the offender filed a [PSM] to

correct its initial illegal sentence[?]” Appellant’s Brief at 4.

      Appellant’s claim challenges the discretionary aspects of his sentence.

      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. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by 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.



Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)

(citation omitted).   Moreover,

            [c]hallenges to the discretionary aspects of sentencing do
      not entitle an appellant to review as of right. Commonwealth
      v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court's jurisdiction by satisfying a four-part test:


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        [W]e conduct a four-part analysis to determine: (1)
        whether appellant has filed a timely notice of appeal, see
        Pa.R.A.P. 902 and 903; (2) whether the issue was properly
        preserved at sentencing or in a motion to reconsider and
        modify sentence, see Pa.R.Crim.P. [720]; (3) whether
        appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
        (4) whether there is a substantial question that the
        sentence appealed from is not appropriate under the
        Sentencing Code, 42 Pa.C.S.A. § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
     2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
     (internal citations omitted).   Objections to the discretionary
     aspects of a sentence are generally waived if they are not raised
     at the sentencing hearing or in a motion to modify the sentence
     imposed.     Commonwealth v. Mann, 820 A.2d 788, 794
     (Pa.Super.2003), appeal denied, 574 Pa. 759, 831 A.2d 599
     (2003).

           The determination of what constitutes a substantial
     question must be evaluated on a case-by-case basis.
     Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
     A substantial question exists “only when the appellant advances
     a colorable argument that the sentencing judge's actions were
     either: (1) inconsistent with a specific provision of the
     Sentencing Code; or (2) contrary to the fundamental norms
     which underlie the sentencing process.” Sierra, supra at 912-
     13.

           As to what constitutes a substantial question, this Court
     does not accept bald assertions of sentencing errors.
     Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
     2006). An appellant must articulate the reasons the sentencing
     court's actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

     Instantly, Appellant preserved his claim in a PSM, filed a timely notice

of appeal, and provided a Rule 2119(f) statement in his brief.         We also

recognize that Appellant’s claim, that the court’s sentence was the product

of vindictiveness, presents a substantial question for our review.        See



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Commonwealth v. Tapp, 997 A.2d 1201, 1203 (Pa. Super. 2010)

(concluding that “alleging judicial vindictiveness … constitute[s] a substantial

question mandating appellate review”). Accordingly, we turn to the merits

of his claim.

        A vindictive sentence constitutes an abuse of a sentencing court’s

discretion because it arises out of “partiality, prejudice, bias or ill will.”

Hoch, 936 A.2d at 518. This Court has recognized that “[w]here a

subsequent sentence imposes a greater penalty than previously was

imposed, a presumption of vindictiveness attaches.”       Commonwealth v.

Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1999). “In order to overcome

the presumption of vindictiveness, the sentencing court's reasons must be

based upon objective information which justifies the increased sentence.”

Id.

        Appellant asserts that there is a presumption of vindictiveness with

regard to the sentence imposed on September 30, 2015 (hereinafter,

“second VOP1 sentence”), given that it vastly exceeded the sentence

imposed on August 6, 2015 (hereinafter, “first VOP sentence”), and because

the sentencing court only increased his sentence after he had exercised his

right to further review through his August 17, 2015 PSM.             Moreover,




____________________________________________


1
    Violation of Probation/Parole.



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Appellant contends the court lacked, or otherwise failed to assert, an

objective basis for increasing his sentence.

      We first must ascertain whether a presumption of vindictiveness

applies in this case.   Appellant’s first VOP sentence was to serve the time

remaining on his original sentence prior to when he was paroled. Appellant

was sentenced on June 14, 2011 to just less than 1-2 years’ incarceration.

Had Appellant served his minimum sentence, his remaining time would have

been, at most, one year.       However, because Appellant was effectively

paroled a few months earlier, when he was granted house arrest, it is

estimated by Appellant that his first VOP sentence imposed a term of

incarceration of approximately 14 months.      That sentence is substantially

less that the second VOP sentence of 2-8 years’ incarceration. Accordingly,

we agree with Appellant that a presumption of vindictiveness applies to the

second VOP sentence currently under review.

      Appellant also asserts that “[t]here was no objective basis or change

of circumstances to justify the court increasing the term of imprisonment.”

Appellant’s Brief, at 23.   Appellant contends that “there was no change in

circumstances based on [his] conduct, since he was incarcerated the entire

time on the violation.”      Id.   He also alleges that no additional facts

concerning the probation/parole violation itself were discovered in the

interim.

      We disagree.      Appellant is correct that the factual basis for his

sentence did not change, in terms of the nature of his violations or issues

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concerning his amenability to rehabilitation.   However, the objective basis

for the increase in his sentence is immediately apparent from the record,

and arises out of the distinction between parole and probation.

     As commonly defined, probation is “[a] sentence imposed for
     commission of crime whereby a convicted criminal offender is
     released into the community under the supervision of a
     probation officer in lieu of incarceration.”       BLACK'S LAW
     DICTIONARY, 835 (6th ed. 991). Conversely, parole is the
     “[r]elease from jail, prison or other confinement after actually
     serving part of the sentence.         Conditional release from
     imprisonment which entitles parolee to serve remainder of his
     term outside the confines of an institution, if he satisfactorily
     complies with all terms and conditions provided in [the] parole
     order.” Id. at 770. As is relevant, a court faced with a violation
     of probation may impose a new sentence so long as it is within
     the sentencing alternatives available at the time of the original
     sentence.     42 Pa.C.S. § 9771(b) (“Upon revocation [of
     probation] the sentencing alternatives available to the court shall
     be the same as were available at the time of initial sentencing,
     due consideration being given to the time spent serving the
     order of probation.”). In contrast, a court faced with a parole
     violation must recommit the parolee to serve the remainder of
     the original sentence of imprisonment, from which the prisoner
     could be reparoled. See Commonwealth v. Fair, 345 Pa.
     Super. 61, 497 A.2d 643, 645 (1985) (“The power of the court
     after a finding of violation of parole in cases not under the
     control of the State Board of Parole is ‘to recommit to jail....’
     There is no authority for giving a new sentence with a minimum
     and maximum.”) (internal citation omitted)).

Commonwealth v. Stafford, 29 A.3d 800, 803 n.5 (Pa. Super. 2011)

(quoting Commonwealth v. Holmes, 933 A.2d 57, 59 (Pa. 2007).

     Thus, under the framework of a parole violation, the sentencing/VOP

court was limited to sentencing Appellant to a maximum term equal to the

time remaining on his original sentence at the time he was paroled. See id.



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That is precisely the nature of the first VOP sentence in this case, as the VOP

court sentenced Appellant to serve the remainder of his time left on his

original sentence prior to his parole. However, no such constraint applies to

a sentence imposed for a violation of probation, where the maximum

possible penalty is the statutory maximum for the underlying offenses, less

any time-served.

      Appellant does not now dispute, and it was undisputed at the time of

the second VOP sentence, that the VOP court could not sentence him for a

violation of parole, because Appellant had already completed his parole prior

to committing the new violations. Thus, Appellant violated his probation, not

his parole.   Accordingly, all “the sentencing alternatives available to the

court shall be the same as were available at the time of initial sentencing,

due consideration being given to the time spent serving the order of

probation.” 42 Pa.C.S. § 9771(b).

      Thus, while no circumstance related to the facts underlying Appellant’s

violation or new facts concerning his amenability to rehabilitation emerged

between the first and second VOP sentences, the range of permissible

sentences available to the court changed dramatically.        The VOP court,

constrained by a maximum sentence of 14 months’ incarceration when it

mistakenly considered Appellant to have violated his parole, was later

confronted with a maximum sentence of 4-8 years’ incarceration. The court

ultimately did not impose the maximum possible sentence, settling instead

for a term of 2-8 years’ incarceration.

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      Appellant argues that the VOP court never “lament[ed] that it was

unable to sentence [him] to [a] state prison” sentence at the August 6, 2015

hearing. Appellant’s Brief, at 23. Appellant further avers that at that same

hearing, “the court believed that county imprisonment was sufficient to

address the violation and stated nothing to the contrary.” Id. at 24.

      We do not view the VOP court’s failure to lament its sentencing

limitations when considering the first VOP sentence as dispositive to our

review of whether there was an objective basis for imposing the second VOP

sentence.   Appellant essentially contends that the VOP court should have

expressed discontent with the existing legal framework in order to justify a

different sentence, under a different legal framework, at a later time. We

find this line of argument unpersuasive.                 Moreover, in our review of the

August 6, 2015 hearing, we find nothing in the court’s statements indicating

that it believed the first VOP sentence was ‘sufficient’ punishment for

Appellant’s violations. To the contrary, the court sentenced Appellant to the

maximum possible term allowable under the law governing parole.

      Furthermore, Appellant points to nothing of record demonstrating that

the VOP court acted with actual vindictiveness, partiality, prejudice, bias or

ill will, and our own review of the record fails to uncover evidence of such,

despite   the   fact    that we    are        compelled to     find a      presumption of

vindictiveness in light of existing case law given the strange sequence of

events at issue.       We are satisfied that an objective basis overcoming the

presumption     of     vindictiveness    is    readily    apparent,   as    the   range   of

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permissible sentences changed dramatically with regard to the first and

second VOP sentences.

      Finally, we acknowledge Appellant’s counsel’s dilemma, which he

characterizes as a Hobson’s choice between bringing to light a clear legal

error in the first VOP sentence, versus his duty to minimize his client’s

exposure to a longer sentence. However, we note that the illegality of the

first VOP sentence could have been challenged by the Commonwealth, or

even corrected by the court sua sponte within 30 days of its imposition. In

any event, counsel’s ethical dilemma is wholly collateral to whether the court

abused its discretion in imposing the second VOP sentence.

      Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2016




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