J-A03037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

HARVEY PROCTOR

                        Appellant                    No. 338 EDA 2015


        Appeal from the Judgment of Sentence December 19, 2014
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0004006-2012;
                         CP-51-CR-0015014-2008


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED MARCH 18, 2016

     Appellant, Harvey Proctor, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following

revocation of his probation. We affirm.

     In its opinion, the trial court fully set forth the relevant facts and

procedural history of this case.    Therefore, we have no reason to restate

them. We add only that Appellant timely filed a notice of appeal on January

20, 2015.   On February 17, 2015, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied.

     Appellant raises the following issue for our review:

        WAS NOT THE SENTENCE OF TWO TO FIVE YEARS[’]
        INCARCERATION FOR A TECHNICAL VIOLATION OF
J-A03037-16


         PROBATION (LEAVING [APPELLANT’S] MENTAL HEALTH
         TREATMENT PROGRAM) MANIFESTLY EXCESSIVE AND
         UNREASONABLE UNDER THE CIRCUMSTANCES, AS WELL
         AS FAILING TO COMPLY WITH 42 PA.C.S. § 9771(C)?

(Appellant’s Brief at 4).

      Appellant argues his sentence of two to five years’ incarceration is

manifestly excessive for a technical violation of probation. Appellant asserts

he suffers from paranoid schizophrenia, and he absconded from the mental

health treatment facility in a panic because he mistakenly believed he would

be discharged for having sex with another resident.      Appellant claims he

attempted to seek treatment elsewhere. Appellant submits he also tried to

turn himself in to the police twice but was turned away each time because

the police had no notice of a bench warrant.         Appellant contends his

sentence was inconsistent with 42 Pa.C.S.A. § 9771(c), as he was not

convicted of another crime, there was no reason to believe he would commit

a crime if not imprisoned, and he showed no consistent pattern of disrespect

to the court’s authority.   Appellant concludes this Court should vacate his

judgment of sentence and remand for resentencing.       Appellant challenges

the discretionary aspects of his sentence. See Commonwealth v. Lutes,

793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly

excessive challenges discretionary aspects of sentencing).

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

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J-A03037-16


Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)

(en banc) (explaining appellate review of revocation sentence includes

discretionary sentencing challenges).      Challenges to the discretionary

aspects of sentencing do not entitle an appellant to an appeal as of right.

Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).                  Prior to

reaching the merits of a discretionary sentencing issue:

        [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).

     When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness    of   the   sentence    under    the     Sentencing     Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when

the appellant advances a colorable argument that the sentencing judge’s


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J-A03037-16


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 913.      An appellant raises a

substantial question where he claims his sentence was excessive in light of

his underlying technical violations of probation.   See Commonwealth v.

Malovich, 903 A.2d 1247 (Pa.Super. 2006).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Sheila

Woods-Skipper, we conclude Appellant’s issue merits no relief.       The trial

court opinion comprehensively discusses and properly disposes of Appellant’s

question presented. (See Trial Court Opinion, filed April 13, 2015, at 3-5)

(finding: court sentenced Appellant to concurrent terms of two (2) to five (5)

years’ incarceration; sentence fell well below statutory maximum term of ten

years’ incarceration applicable to each criminal trespass conviction; in

fashioning sentence, court considered sentencing factors under 42 Pa.C.S.A.

§ 9721(b); evidence at revocation hearing showed Appellant continuously

failed to comply with rules of mental health treatment program; Appellant

had sex with fellow resident and absconded from program twice over course

of one year; Appellant also failed to comply with rules of mental health court

despite being given several opportunities; Appellant may benefit from

mental health services offered in more structured environment of state

facility because he has failed to take advantage of opportunities previously


                                    -4-
J-A03037-16


afforded to him; in view of Appellant’s rehabilitative needs and history of

noncompliance with conditions of his supervision, sentence was not

unreasonable; further, court complied with Section 9771(c); sentence of

total confinement was necessary to vindicate court’s authority because

Appellant continued to disregard conditions of his supervision). Accordingly,

we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




                                      -5-
                                                                                                Circulated 02/24/2016 10:50 AM


                                 IN THE COURT OF COMMON PLEAS
                                                                                             CP-51-CR-0015014-2008   Comm. v. Proctor, Harvey
                            FIRST JUDICIAL DISTRICT OF PENNSYL VA                                               Opinion
                                     CRIMINAL TRIAL DIVISION

                                                                                                 11111 11111111111111111111
COMMONWEALTH OF PENNSYLVANIA                                                                              7281336971

                 v.                                                    CP-51-CR-0015014-2008
                                                                       CP-51-CR-0004006-2012
HARVEY PROCTOR

DOCKET NO.:               338 EDA2015

                                                        OPINION

        Appellant, Harvey Proctor, appeals the revocation of his probation and the ensuing sentence of

two to five years incarceration.       On appeal, Appellant asserts that the sentence was manifestly

excessive and unreasonable under the circumstances, and that it did not comply with the requirements

of 42 Pa.C.S. § 9771(c). A summary of the relevant facts and procedural history follows.

        On June 11, 2009, Appellant was found guilty of criminal trespass, contempt, terroristic threats

and criminal mischief following a waiver-trial before the Honorable Willis Berry Jr.1 On December 7,

2009, the Honorable Joan Brown sentenced Appellant to time served to twenty-three months

incarceration on each charge, to run concurrently, followed by three years probation.2 On March 15,

2012, Appellant was arrested and charged with burglary and criminal trespass. Trial on these new

charges and potential direct violation of Judge Brown's probation they represented were Rule 701

consolidated before the Honorable Diana Anhalt.' On January 16, 2013, Appellant entered a negotiated

guilty plea to criminal trespass before Judge Anhalt, and was sentenced to time served to twenty-three

months followed by five years probation. On the direct violation, Judge Anhalt sentenced Appellant to

a consecutive three years probation and both cases were referred to Mental Health Court (MHC).


     18 § 3503(a)(l)(ii), 23 § 6114(a), 18 § 2706(a)(l), 18 § 3304(a)(l)
2   On August 12, 2009, Judge Berry recused himselfat the Commonwealth's request.
3   Rule 701. Pleas of Guilty to Multiple Offenses (A) Before the imposition of sentence, the defendant may plead guilty
    to other offenses that the defendant committed within the jurisdiction of the sentencing court. (B) When such pleas are
    accepted, the court shall sentence the defendant for all the offenses. Pa.R.Crim.P. 70 I.



                                                             1
        On March 14, 2013, judge Anhalt relinquished jurisdiction and Appellant was formally

accepted into MHC. As is the procedure in MHC, Appellant was scheduled for status of mental health

and treatment hearings at regular intervals to monitor his compliance and progress. At Appellant's

April 18, 2013 status hearing, it was reported that he was in compliance with the program. At the May

16, 2013 status hearing, Appellant's probation officer reported that he had tested positive for marijuana

on April 26, 2013. At the June 13, 2013 hearing, Appellant failed to appear because he was

hospitalized, however, his probation officer reported that Appellant had tested positive for PCP and a

detainer was issued. At the July 11, 2013 hearing, it was reported that Appellant was found to be

incompetent and the Court committed Appellant for a period of thirty days under section 305 via 405 of

the Mental Health Procedures Act. At the August 1, 2013 hearing, Appellant remained incompetent and

was re-committed for an additional thirty days under section 305 via 405. At the August 22, 2013

hearing, Appellant was again competent. The Court lifted the detainer and ordered that Appellant be

immediately paroled to the Forensic Intensive Recovery (FIR) NET Wharton program. At the

September 12, 2013 hearing, Appellant's probation officer reported that the program notified her that,

on the day prior, Appellant absconded from an organized group trip to a park and was later found at a

nearby bar. As a result, Appellant was discharged from the program which resulted in the warrant unit

taking him into custody. The Court ordered a forthwith mental health evaluation and scheduled a

violation hearing.

       At the October 17, 2013 violation hearing, following testimony, Appellant was found to be in

technical violation of the conditions of his probation and the MHC, and sentencing was deferred to

determine if a placement could be obtained. On November 14, 2013, Appellant received concurrent

sentences of eleven and one-half to twenty-three months incarceration followed by five years reporting




                                                   2
probation.4 On December 23, 2013, Appellant was paroled to the Gaudenzia, North Broad program.

At the January 16, 2014 and March 13, 2014 status hearings, Appellant was reported to be in

compliance with his program. However, Appellant failed to appear at the May 8, 2014 hearing, and a

bench warrant was issued. Appellant's probation officer reported that Appellant stated that he would

like to go back to jail because he did not like the program. The probation officer also reported that,

according to Appellant's case manager, Appellant had been caught engaged in sex with another

resident, which was against the rules, that he was disrespectful to women, and that he absconded from

the program on March 23, 2014. On April 23, 2014, Appellant was formally discharged from

Gaudenzia. On May 9, 2014, Appellant turned himself in to police. At the May 15, 2014 hearing,

Appellant's probation officer reported that Appellant told her that he left the program because he

thought he was going to be discharged and taken into custody. The Court ordered a forthwith mental

health evaluation and a violation hearing was scheduled. At the October 16, 2014 hearing, after finally

receiving the mental heal evaluation results, Appellant was found in technical violation of his

probation, but sentencing was deferred to allow a FIR evaluation to be completed. On December 19,

2014, Appellant was sentenced to two to five years incarceration on each criminal trespass conviction

with credit for time served. On January 5, 2015, Appellant's motion to vacate and reconsider sentence

was denied. This appeal followed.

        Appellant's sole argument on appeal is that his sentence was manifestly excessive and

unreasonable under the circumstances and that it did not comply with 42 Pa.C.S. § 977l(c). It is settled

that, [t]he imposition of sentence following the revocation of probation is vested within the sound

discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (2014) (citing Commonwealth v. Simmons, 56 A.3d

1280, 1283-84 (Pa. Super. 2012)). An abuse of discretion is more than an error in judgment-a

4
     On the first case, he was also sentenced on the Criminal Mischief conviction to eleven and one half to twenty-three
    months incarceration to run concurrently with immediate parole followed by three years probation and consecutively
    sentenced to five years probation on the Terroristic Threats conviction.



                                                             3
sentencing court has not abused its discretion unless the record discloses that the judgment exercised

was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Id. When re-

sentencing following a violation of probation, a court can sentence an Appellant to any sentence

allowable at the time of the original sentence. Id. at 1044. Appellant was found guilty of two counts of

criminal trespass as felonies of the second degree, each of which carries a maximum sentence of

incarceration of up to ten years.5 Appellant was sentenced to two to five years incarceration on each

conviction, to run concurrently, with credit for time served, a sentence far shorter than the possible

twenty years incarceration to which the Appellant was exposed.

          Moreover, in crafting Appellant's sentence, Court followed the rule articulated in 42 Pa.C.S. §

972l(b) which require that the 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

[appellant]. Commonwealth v. Williams, 69 A.3d 735, 741 (Pa Super. 2013) (citing Commonwealth

v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super 2001), 42 PaC.S. § 972l(b). The evidence at the

revocation hearing showed that Appellant continuously failed to comply with the rules of the

Gaudenzia program by having sex with a fellow resident, absconded from the program which resulted

in his discharge, the second discharge from a program in a year. (N.T. 10/16/14 pg. 5-6) Furthermore,

Appellant failed to comply with the rules ofMHC despite several opportunities. Id. The Court

reasoned that Appellant might benefit from the mental health services offered in the more structured

environment of a state facility because he had failed to take advantage of the opportunities previously

afforded to him. (N.T. 12/19/14 pg. 22) Given the Appellant's history of non-compliance with

conditions of his supervision and the Court's consideration of his rehabilitative needs, the sentence was

not unreasonable.



5
    18 Pa.C.S. § 1103(2).



                                                      4
       Finally, the Court did comply with 42 Pa.C.S. § 977l(c), which requires a court, before it

imposes a sentence of total confinement, to find that [Appellant] has either: (1) the [appellant] has been

convicted of another crime; or (2) the conduct of the [ appellant] 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 the court. 42 Pa.C.S. § 9771(c). In addition, technical violations can support revocation and

a sentence of incarceration where such violations are flagrant and indicate an inability to reform.

Commonwealth v. Allshouse, 2009 PA Super 47, 969 A.2d 1236, 1241 (Pa. Super. Ct. 2009).               In light

of Appellant's continued disregard for the conditions of his supervision, the Court reasoned that in

order to vindicate its authority, a period of total confinement was necessary. (N.T. 12/19/14 pg 22).

Therefore, the Court complied with the requirements of 42 Pa.C.S. § 977l(c) and all of appellant's

complaints on appeal fail.

       For the foregoing reasons, Appellant's claims for relief should be denied.



                                                               BY THE COURT:




                                                               SHEILA WOODS-SKIPPER, PJ




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