J-S10018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ALPHONSO WHITEHEAD

                            Appellant                    No. 1271 EDA 2014


       Appeal from the Judgment of Sentence entered February 23, 2011
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0013377-2009


BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED APRIL 13, 2015

        Appellant, Alphonso Whitehead, appeals from the February 23, 2011

judgment of sentence imposing 24 to 54 months of incarceration followed by

24 months of probation following Appellant’s violation of probation.         We

affirm.

        In 1989, Appellant was convicted of two counts of involuntary deviate

sexual intercourse (“IDSI”).1          On June 2, 2010, Appellant pled guilty to

failing to verify his address with police pursuant to then-effective 18

Pa.C.S.A. § 4915. On that date, the trial court sentenced Appellant to 11 to

23 months of incarceration followed by seven years of probation. Appellant
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3123.
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was paroled on June 10, 2010. At a June 15, 2010 office meeting with his

parole officer, Appellant tested positive for cocaine.       Appellant missed a

scheduled visit on August 26, 2010.            On September 10, 2010, Appellant

attended an office visit and once again tested positive for cocaine. Appellant

missed a scheduled visit on October 14, 2010.2

       On January 5, 2011, the trial court conducted a violation hearing and

revoked Appellant’s probation based on Appellant’s failure to report to his

probation officer and two positive drug tests.        On February 23, 2011, the

trial court imposed the sentence on appeal. On March 11, 2011, Appellant

filed an untimely motion for reconsideration. In its opinion, the trial court

states it denied this motion.          Trial Court Opinion, 6/23/14, at 2.   The

certified record and docket contain no evidence of any trial court action on

the untimely motion.        Appellant did not file a timely appeal.   On April 4,

2014, the PCRA3 court issued an order permitting Appellant to file a direct

appeal nunc pro tunc. Appellant filed this timely nunc pro tunc appeal on

April 24, 2014. He argues the trial court erred in revoking his probation and



____________________________________________


2
  Appellant also was arrested once again for failing to register his address to
police when Appellant’s girlfriend reported to police that he no longer lived at
the address they had on file for him. The charges were dropped after a
preliminary hearing, and we do not rely on this additional arrest in our
analysis.
3
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.



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that the court abused its discretion in imposing a harsh and excessive

sentence. Appellant’s Brief at 8. We will address these issues in turn.

      Appellant   first   argues   the   Commonwealth    produced   insufficient

evidence justify revocation of his probation.    We review that argument as

follows:

            A challenge to the sufficiency of the evidence is a question
      of law subject to plenary review. We must determine whether
      the evidence admitted at trial and all reasonable inferences
      drawn therefrom, when viewed in the light most favorable to the
      Commonwealth as the verdict winner, is sufficient to support all
      elements of the offenses. A reviewing court may not weigh the
      evidence or substitute its judgment for that of the trial court.

             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 discretion. 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.       [T]he reason for revocation of
      probation need not necessarily be the commission of 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[.]        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.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014)

(emphasis added), appeal denied, ___ A.3d ___; 2015 Pa. LEXIS 309

(February 11, 2015).



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        Appellant argues the trial court erred in revoking his probation based

on technical parole violations rather than the commission of a new offense.

In addition, Appellant argues the trial court acted prematurely in revoking

Appellant’s probation before the probation sentence commenced.          Finally,

Appellant argues the trial court offered an insufficient factual basis upon

which to conclude Appellant was not amenable to rehabilitation.             These

arguments lack any basis in law or fact.

        The bolded portion of the quote from this Court’s opinion in Colon

provides that commission of a new criminal offense is not a prerequisite to

revocation of probation. Colon, 102 A.3d at 1041. Furthermore, we have

held:

              If, at any time before the defendant has completed the
        maximum period of probation, or before he has begun
        service of his probation, he should commit offenses of such
        nature as to demonstrate to the court that he is unworthy of
        probation and that the granting of the same would not be in
        subservience to the ends of justice and the best interests of the
        public, or the defendant, the court could revoke or change the
        order of probation. A defendant on probation has no contract
        with the court. He is still a person convicted of crime, and the
        expressed intent of the Court to have him under probation
        beginning at a future time does not “change his position from
        the possession of a privilege to the enjoyment of a right.”

Commonwealth v. Ware, 737 A.2d 251, 253-254 (Pa. Super. 1999)

(emphasis in original) (quoting Burns v. United States, 287 U.S. 216, 222

(1932)), appeal denied, 747 A.2d 900 (Pa. 1999). Thus, the trial court had

authority    to   revoke   Appellant’s   probation   sentence   prior   to     its

commencement.

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      Turning to the facts, the record confirms Appellant’s continued drug

abuse and his failure to report to several scheduled visits with his parole

officer. N.T., 1/5/11, at 5-8. Appellant has received probation sentences on

several prior offenses and has never successfully completed any of them

because he repeatedly fails to report to scheduled visits. Id. at 8. For these

reasons, the trial court acted within its discretion in finding Appellant’s

conduct indicates probation has been an ineffective vehicle of rehabilitation.

Colon, 102 A.3d at 1041.

      Next, Appellant argues the trial court abused its sentencing discretion

by imposing an excessively harsh sentence. To preserve a challenge to the

trial court’s sentencing discretion, an appellant must file a timely notice of

appeal, preserve the issue in a timely post-sentence motion, include a

Pa.R.A.P. 2119(f) statement in the appellate brief, and present a substantial

question for our review. Colon, 102 A.3d at 1042-43. Instantly, Appellant

filed a timely nunc pro tunc appeal within thirty days of the PCRA court’s

order granting that relief. As noted above, the certified record fails to reflect

any trial court action on the untimely motion for reconsideration of his

sentence. The Colon Court noted that an untimely motion for modification

of a sentence will preserve the issue for review where the trial court acts on

the motion within thirty days. Id. at 1043 n.2. In this case, the record does

not confirm the trial court’s assertion that it acted on Appellant’s motion,

and Colon therefore does not apply.


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         In Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009), our

Supreme Court held that an order permitting a nunc pro tunc direct appeal

does not automatically permit a nunc pro tunc post-sentence motion. Id. at

1093-94.      The Liston Court disapproved that course of action because it

could award certain litigants the right to pursue collateral claims on direct

appeal.     Id.   Here, Appellant does not assert a collateral attack on his

judgment of sentence. Nonetheless, the holding in Liston applies with equal

force.    The Liston Court explained that the failure to file a post-sentence

motion is not among the few circumstances where courts will presume

prejudice     from   counsel’s   ineffectiveness.   Id.   at   1092   n.7   (citing

Commonwealth v. Reaves, 923 A.2d 1119, 1125 (Pa. 2007)). Appellant

therefore needed to plead and prove to the PCRA court that counsel was

ineffective for failing to file a timely post-sentence motion before the PCRA

court could award him the right to file a nunc pro tunc post-sentence

motion.     Appellant did not do so.      Appellant therefore has not properly

preserved his sentencing argument for review in this nunc pro tunc appeal.

         Assuming arguendo Appellant’s sentencing challenge is reviewable in

this appeal, and that the trial court’s order addressing Appellant’s post-

sentence motion was inadvertently omitted from the record, we would find

Appellant’s argument lacking in merit. In his Pa.R.A.P. 2119(f) statement,

Appellant asserts the trial court abused its discretion in imposing a

manifestly excessive sentence that fails to account for the protection of the


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public, the gravity of the offense, and Appellant’s rehabilitative needs, in

accord with 42 Pa.C.S.A. § 9721(b).       Specifically, Appellant argues the

sentence is excessive in light of Appellant’s technical probation violations.

Appellant’s assertions raise a substantial question appropriate for appellate

review.   Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super.

2006) (finding a substantial question where the appellant argued the trial

court imposed an excessive sentence for technical probation violations).

     The following standard governs our review of the merits.

           The 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. 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. In determining whether a sentence is manifestly
     excessive, the appellate court must give great weight to the
     sentencing court’s discretion, as he or she is in the best position
     to measure factors such as the nature of the crime, the
     defendant’s character, and the defendant’s display of remorse,
     defiance, or indifference.

           Upon revoking probation, a sentencing court may choose
     from any of the sentencing options that existed at the time of
     the original sentencing, including incarceration.            [U]pon
     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.

Colon, 102 A.3d at 1043-44.

     Section 9771(c) of the Sentencing Code permits a sentence of total

confinement after revocation of probation where the defendant has been

convicted of a new crime; where his conduct indicates likelihood that he will


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commit another crime; or to vindicate the authority of the court. Appellant

mentions § 9771(c) in passing but does not develop any argument

concerning its application. Appellant’s Brief at 19. In any event, Appellant’s

multiple criminal history and repeated violations of probation evince a

likelihood of future offense and a need to vindicate the authority of the trial

court.

         Appellant argues his occasional homelessness combined with his drug

addiction pose substantial obstacles to his compliance with probation. Thus,

he believes the trial court failed to account for his rehabilitative needs under

§ 9771(c).      He also argues the trial court failed to offer an on the record

explanation of its sentence.

         At sentencing, the trial court noted its familiarity with what it deemed

an “exhaustive” pre-sentence investigation report. N.T., 2/23/11, at 9. The

trial court also noted Appellant’s criminal history, including forgery and theft

of a motor vehicle in addition to the IDSI convictions. Id. at 13. The trial

court also noted Appellant’s refusal to accept that he is required, as a sexual

offender, to register his address with police. Id. at 9-10, 13. The trial court

recommended Appellant for treatment for his cocaine abuse. Id. at 15. The

trial court encouraged Appellant to take advantage of the vocational training

offered in prison. Id. at 15. The court summarized its thought process as

follows:

                [W]hat I’m doing is balancing the need to protect society
         from    people who have convictions like [IDSI] against

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      [Appellant’s] rehabilitative needs and I think I framed the
      appropriate sentence. It’s not a maximum sentence, but I think
      it’s a sentence that will strike the right balance between
      [Appellant] being put on the right path and society being
      protected in the meantime.

Id. at 17.

      In summary, the sentencing transcript plainly reflects the trial court’s

efforts   to   apply   § 9721(b),   with   particular   attention   to   Appellant’s

rehabilitative needs. The Court reasoned Appellant will have opportunities

for rehabilitation while incarcerated without posing a risk to society in the

meantime. Given Appellant’s history of repeatedly failing to comply with the

conditions of his probation, we believe the trial court acted well within its

discretion in imposing sentence.

      Since neither of Appellant’s assertions of error warrants relief, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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