J-A24019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DEONTA MANNING-RUFFIN

                            Appellant                   No. 2835 EDA 2014


        Appeal from the Judgment of Sentence of September 4, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0012734-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                            FILED DECEMBER 02, 2015

       On September 4, 2014, the trial court in this case sentenced Deonta

Manning-Ruffin to one and one-half to three years of total confinement after

the court determined that he had violated the terms and conditions of his

house arrest and probation.             Manning-Ruffin appeals that judgment of

sentence. We hold that the trial court considered an impermissible factor in

imposing Manning-Ruffin’s sentence. We vacate the judgment of sentence,

and we remand this case for resentencing.

       On March 27, 2014, following a bench trial, Manning-Ruffin was

convicted of burglary, criminal trespass, and criminal mischief.1      The trial

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       18 Pa.C.S. §§ 3502, 3503, and 3304, respectively.
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court briefly summarized the facts underlying Manning-Ruffin’s convictions

as follows:

      The evidence adduced at trial proved that [Manning-Ruffin] pried
      open the outer door of a CVS and was in an inner vestibule,
      preparing to break the second barrier to enter the store. The
      outer set of doors had been pried open. He told the first officer
      on the scene that he was breaking into the store to destroy
      things inside because [] he was angry at being “disrespected”
      there earlier.

Trial Court Opinion (“T.C.O.”), 2/4/2015, at 2 (references to notes of

testimony omitted).

      On May 30, 2014, Manning-Ruffin appeared before the trial court for

sentencing.   During the sentencing hearing, the trial court learned that,

between the conviction and sentencing, Manning-Ruffin had been convicted

of an unrelated firearm offense.          The trial court noted that “[t]he

circumstances of the offense were disturbing, involving [Manning-Ruffin]

brandishing   a   firearm   with   an   obliterated   serial   number    during   a

confrontation at the home of his brother’s ex-girlfriend.”         Id.     On the

burglary conviction, the trial court sentenced Manning-Ruffin to six to

twenty-three months of house arrest with electronic monitoring.           The trial

court ordered Manning-Ruffin to be released from house arrest and

transferred to an inpatient treatment facility when a space for him became

available at a facility.    For criminal trespass, the trial court sentenced

Manning-Ruffin to six to twenty-three months of house arrest, concurrent




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with the burglary sentence, to be followed by two years of probation. The

court imposed no further penalty for criminal mischief.

      On September 4, 2014, Manning-Ruffin appeared before the trial court

to face allegations that he had violated the terms of his probation. The trial

court summarized the evidence presented at the hearing as follows:

      Evidence at the violation hearing on September 4, 2014,
      demonstrated that [] Manning-Ruffin violated the conditions of
      his sentence of house arrest by leaving his residence on two
      occasions without authorization. On August 6, 2014, he left his
      residence at 12:08 a.m. and did not return until 12:27 a.m. He
      was given a warning at this time. Later that day he called and
      explained the circumstances to his probation officer, who
      decided to give him another chance, but warned him that
      another house arrest violation would result in his being detained.

      On August 19, 2014, Manning-Ruffin again went out of his
      residence without permission. He left at 11:27 p.m. and did not
      return until ten minutes later at 11:37 p.m. As a result, he was
      detained by the warrant unit and his probation officer lodged a
      detainer against him.

      Manning-Ruffin presented testimony from his girlfriend that the
      alarm went off on August 19th without explanation, while
      Manning-Ruffin was in the shower, and when the monitor called,
      [that] is what they were told. Manning-Ruffin also testified that
      he did not leave on August 19th, but was in the shower when the
      alarm went off.

      There were no reports of any malfunction with the house arrest
      device.

T.C.O. at 2-3.

      At the conclusion of the hearing, the trial court determined that

Manning-Ruffin had violated the conditions of probation, and re-sentenced

him to one and one-half to three years’ incarceration. The trial court also



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imposed a consecutive three-year term of probation. The court ordered the

aggregate sentence to run consecutively to any other sentences that he was

serving at the time.

      On      September   12,    2014,   Manning-Ruffin   filed   a   motion   for

reconsideration of his sentence.     The trial court denied the motion three

days later.    On October 3, 2014, Manning-Ruffin filed a notice of appeal,

which prompted the trial court to order Manning-Ruffin to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On November 19, 2014, Manning-Ruffin timely complied.                 Finally, on

February 4, 2015, the trial court issued an opinion pursuant to Pa.R.A.P.

1925(a).

      Manning-Ruffin raises the following three issues for our consideration:

      1. Did not the trial court violate 42 Pa.C.S. § 9771(d) by
         revoking [Manning-Ruffin’s] probation based on a crime [that
         Manning-Ruffin] was convicted of before he was originally
         sentenced and placed on probation?

      2. Did not the trial court violate 42 Pa.C.S. § 9771(c) when it
         imposed a sentence of total confinement for minor technical
         violations of probation?

      3. Did not the trial court abuse its discretion and fail to give
         individualized consideration to [Manning-Ruffin] when it
         sentenced him to the manifestly disproportionate and
         excessive term of [one and one-half to three] years of
         incarceration followed by a new period of [three] probation
         years, to be served consecutively to another sentence, for
         minor technical violations?

Brief for Manning-Ruffin at 4.




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      In his first issue, Manning-Ruffin maintains that the trial court

erroneously revoked his probation by relying primarily upon his prior firearm

conviction, of which the court was aware at the time of Manning-Ruffin’s

original sentencing, and not upon his two minor technical violations.

Manning-Ruffin contends that reliance upon the prior conviction constituted

an invalid reason for probation revocation, because the prior conviction

occurred before he was sentenced and placed on probation in the case sub

judice.

      In an appeal from a sentence imposed following the revocation of

probation, our standard of review is well settled:

      Our review is limited to determining the validity of the probation
      revocation proceedings and the authority of the sentencing court
      to consider the same sentencing alternatives that it had at the
      time of the initial sentencing. 42 Pa.C.S. § 9771(b); see also
      Commonwealth v. Gheen, 688 A.2d 1206, 1207 (Pa. Super.
      1997) (the scope of review in an appeal following a sentence
      imposed after probation revocation is limited to the validity of
      the revocation proceedings and the legality of the judgment of
      sentence).   Also, upon sentencing following a revocation of
      probation, the trial court is limited only by the maximum
      sentence that it could have imposed originally at the time of the
      probationary       sentence.    Id.      1207-1208;        accord
      Commonwealth v. Ware, 737 A.2d 251, 254 (Pa. Super.
      1999).

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citations

modified).

      “Revocation of a probation sentence 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

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discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super.

2007). “When assessing whether to revoke probation, the trial court must

balance the interests of society in preventing future criminal conduct by the

defendant against the possibility of rehabilitating the defendant outside of

prison.   In order to uphold a revocation of probation, the Commonwealth

must show by a preponderance of the evidence that a defendant violated his

probation.”   Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super.

2011) (quotations and citations omitted).       “[T]he reason for revocation of

probation need not necessarily be the commission or conviction for

subsequent    criminal   conduct.     Rather,     this   Court   has   repeatedly

acknowledged the very broad standard that sentencing courts must use in

determining whether probation has been violated[.]”         Commonwealth v.

Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (citations and internal

quotations omitted).     “A probation violation is established whenever it is

shown that the conduct of the probationer indicates the probation has

proven to have been an ineffective vehicle to accomplish rehabilitation and

not sufficient to deter against future antisocial conduct.” Id.

      As indicated above, Manning-Ruffin maintains that his behavior “before

he was placed on probation was not just a factor in the trial court’s decision

to revoke probation, it was the primary factor in the trial court’s decision to

revoke.” Brief for Manning-Ruffin at 13 (emphasis in original). Pursuant to

42 Pa.C.S. § 9771(d), which states that “the court shall consider the record

of the sentencing proceeding together with evidence of the conduct of the

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defendant while on probation,” a trial court is restrained from considering

facts that occurred before the original imposition of probation when

determining whether to revoke a person’s probation.        Commonwealth v.

Carver, 923 A.2d 495, 497 (Pa. Super. 2007). Thus, if Manning-Ruffin is

correct that the trial court relied upon his firearm conviction, which

undoubtedly occurred before he was placed on probation, he would be

entitled to relief.   However, despite Manning-Ruffin’s insistence to the

contrary, the record does not support his argument. It is true that, at the

violation hearing, the trial court stated the following:

      You know what I was concerned about when I imposed
      sentence? That you would be a danger to the community. And
      at that point, you had an open gun case, right?

      Before sentencing—shortly before sentencing, you got convicted
      of that case, and your lawyer at that time, not this lady, stood
      here and told me, I don’t know why, but he told me all about
      how you got that conviction, all about it. And it was very, very,
      disturbing. All right. But, I wasn’t going to try and go back in
      time and [undo] that. But here you are doing it to yourself. All
      right.

Notes of Testimony, 9/4/2014, at 13.         Nevertheless, this was the only

reference that the trial court made regarding the prior firearm conviction,

and the statement occurred immediately before imposition of sentence. The

court’s statement was not made in contemplation of whether Manning-Ruffin

actually had violated his probation.

      The trial court confirmed that it considered the prior conviction only as

a factor in determining a suitable sentence for Manning-Ruffin in its Rule



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1925(a) opinion. The court, relying upon 42 Pa.C.S. § 9771(d), explained

the basis for its sentence as follows:

       Here, the gun conviction and the circumstances of that crime,
       which were discussed at sentencing, along with the
       circumstances for the instant conviction, the absconding
       incidents, and [Manning-Ruffin’s] denial of the second violation
       of his in-home detention, were all factors considered in
       determining an appropriate sentence.

T.C.O. at 4.2

       Even if the court considered the prior conviction for purposes of

determining whether Manning-Ruffin had violated his probation, the record is

clear that the court did not utilize the conviction as the “primary” factor, as

Manning-Ruffin insists. Manning-Ruffin twice left his residence when he was

not permitted to do so. Manning-Ruffin’s probation officer elected to warn

him after the first violation. Manning-Ruffin did not heed the warning, and

left the residence a second time.              The trial court relied upon these two

violations as the bases for finding Manning-Ruffin in violation of his

probation, as is evidenced by the court’s remarks that “you are doing it to

yourself.” Id.



____________________________________________


2
       We address the trial court’s consideration of the conviction for
sentencing purposes in our discussion of Manning-Ruffin’s second issue. We
cite this portion of the trial court’s opinion here only to demonstrate that the
court considered the prior conviction as part of the sentencing decision, and
not as a factor in determining whether Manning-Ruffin had violated his
probation.



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      In its Rule 1925(a) opinion, the trial court explained that it concluded

that the Commonwealth had proven a probation violation because “the

evidence clearly demonstrated that [Manning-Ruffin] had not once, but

twice, violated the terms of his home detention by leaving the premises.”

T.C.O. at 3.    The court continued, “[i]ndeed, despite a warning and a

decision by his probation officer not to proceed on a violation at the time of

the first absconding incident, less than two weeks later, [Manning-Ruffin]

again absconded from his in-home detention.” Id. at 3-4. Thus, the trial

court concluded that Manning-Ruffin’s inability to comply with the terms of

his house arrest rendered probation to be “an ineffective vehicle to

accomplish rehabilitation and not sufficient to deter against future antisocial

conduct.”   Ortega, supra.       The record simply does not support Manning-

Ruffin’s claim that the decision was based upon his prior conviction.

      In his second issue, Manning-Ruffin contends that the trial court erred

by imposing a sentence of total confinement based only upon Manning-

Ruffin’s technical violations.    Despite the manner in which Manning-Ruffin

frames his issue, the crux of his argument that the trial court based the

sentence of total confinement upon Manning-Ruffin’s firearm conviction,

which occurred prior to Manning-Ruffin being placed on probation. We agree

with Manning-Ruffin.

      Initially, we note that Manning-Ruffin’s claim is a challenge to the

discretionary aspects of his sentence.       See Commonwealth v. McAfee,

849 A.2d 270, 274 (Pa. Super. 2004) (stating that a claim that the trial

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court erred in imposing a sentence of total confinement upon revocation of

probation is a challenge to the discretionary aspects of one’s sentence).

        Two requirements must be met before we will review this
        challenge on its merits. First, an appellant must set forth in his
        brief a concise statement of the reasons relied upon for
        allowance of appeal with respect to the discretionary aspects of a
        sentence [pursuant to Pa.R.A.P. 2119(f)]. Second, the appellant
        must show that there is a substantial question that the sentence
        imposed is not appropriate under the Sentencing Code. The
        determination of whether a particular issue raises a substantial
        question is to be evaluated on a case-by-case basis. In order to
        establish a substantial question, the appellant must show actions
        by the trial court inconsistent with the Sentencing Code or
        contrary to the fundamental norms underlying the sentencing
        process.

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)

(citations omitted).3      In his brief, Manning-Ruffin has presented a Rule

2119(f) statement of reasons for allowance of appeal in which he argues

that the court erred in its application of section 9771 in that his sentence of

total    confinement     was     manifestly    excessive   and    based   upon   an

impermissible factor.       Brief for Manning-Ruffin at 9.       Manning-Ruffin has

raised a substantial question.        Commonwealth v. Dodge, 77 A.3d 1263,

1273 (Pa. Super. 2013) (recognizing that a sentencing court’s reliance upon

an impermissible factor raises a substantial question).




____________________________________________


3
     Manning-Ruffin has preserved this issue by filing timely post-sentence
motions and a notice of appeal.



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         Having determined that Manning-Ruffin has raised a substantial

question, we proceed to the merits of his claim. Our standard of review is

well-settled:

         The imposition of sentence following the revocation of probation
         is vested within the sound discretion of the trial court, which,
         absent an abuse of discretion, will not be disturbed on appeal.
         An abuse of discretion is more than an error in judgment—a
         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.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014)

(quoting Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super.

2012)).

         Pursuant to section 9711, a sentencing court “shall not impose a

sentence of total confinement upon revocation [of probation] unless it finds

that:”

         (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 the
         court.

42 Pa.C.S. § 9711(c). However, before any sentence of probation may be

revoked or increased, subsection 9771(d) mandates that “the court shall

consider the record of the sentencing proceeding together with evidence of

the conduct of the defendant while on probation.” 42 Pa.C.S. § 9771(d). As

noted above, in Carver, we explicitly held that subsection 9771(d) “clearly


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restrains the court from considering facts occurring prior to the imposition of

probation when revoking probation.” 932 A.2d at 497. By the terms of the

subsection, the same must hold true when the court increases a violator’s

sentence.

       In this case, the trial court admitted that it had considered the prior

firearm conviction when imposing the post-revocation sentence. See T.C.O.

at 4. This conduct occurred before Manning-Ruffin was placed on probation,

and,   pursuant   to   Carver,   constituted   an   impermissible   factor   for

consideration. We noted the following in Carver:

       It is important to remember that probation is designed to
       rehabilitate a defendant so that he can become a productive
       member of society; thus, probation promotes the interests of the
       public as well as the defendant. See Commonwealth v. Del
       Conte, 419 A.2d 780 (Pa. Super. 1980).          It therefore is
       inappropriate to consider the defendant’s conduct prior to
       imposition of the probationary term because the efficacy of
       probation has not yet been tested when that behavior occurred.

Carver, 923 A.2d at 497.         The trial court’s decision to consider an

impermissible factor in sentencing Manning-Ruffin violated the plain terms of

subsection 9771(d), and was manifestly unreasonable. The court abused its

discretion by sentencing Manning-Ruffin to total confinement based at least

in significant part on behavior that occurred prior to his being placed on

probation.   For this reason, we vacate the judgment of sentence, and we

remand for a new sentencing proceeding.        In light of our disposition, we

need not consider Manning-Ruffin’s final issue.




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      Judgment of sentence vacated.         Case remanded.   Jurisdiction

relinquished.

      Judge Panella joins the memorandum.

      Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2015




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