J. A25043/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
HAKEEM CANADA,                              :
                                            :
                          Appellant         :     No. 2648 EDA 2014

            Appeal from the Judgment of Sentence August 15, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division No(s).: CP-51-CR-0010300-2007

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 30, 2015

        Appellant, Hakeem Canada, appeals from the judgment of sentence

entered in the Philadelphia Court of Common Pleas following the second

revocation of his probation.       Appellant argues the trial court failed to

consider the factors of 42 Pa.C.S. § 9721(b) and imposed an excessive

sentence. We affirm.

        The trial court summarized the procedural history of this matter as

follows.    On May 28, 2008, Appellant pleaded guilty to simple assault and

terroristic threats1 “and was sentenced to a negotiated sentence of two

years probation on each charge, to run concurrently.”          Trial Ct. Op.,



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2701(a), 2706(a)(1).
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11/13/14, at 1. The trial court revoked his probation for the first time on

October 20, 2010, finding him in technical violation for, inter alia,

absconding from the probation department for seven months, “test[ing]

positive for marijuana in five consecutive urinalyses,” and failing to attend

drug treatment, anger management, or vocational training as required. Id.

at 1-2. On the same day, the court imposed a new aggregate sentence of

11½ to 23 months’ county imprisonment and three years’ probation.

Appellant “was warned at this hearing that he would receive a sentence of

state incarceration if he violated his probation again.” Id. at 2.

      “On October 27, 2011, [Appellant’s] new period of probation began.”

Id.   The court conducted a status listing on July 20, 2012, but because

Appellant had not made any payment on his fines and costs, the court

continued the hearing to August 22nd and ordered him to make a payment.

At the August 22nd hearing, the court learned Appellant “had made only a

$10 payment,” continued the matter for an additional two days, and ordered

him “to make a substantial payment,” as well as produce proof “that he was

enrolled in school.”   Id.   Appellant failed to appear at the August 24th

hearing, the court issued a bench warrant, and he was apprehended on the

warrant one year and ten months later, on June 30, 2014.2


2
  At the instant VOP hearing, Appellant’s counsel stated her belief that
Appellant “was at home and one of his children was trying to unlock his cell
phone and inadvertently called 911. The police came to the house and
arrested [Appellant] on the warrant.” N.T. VOP H’rg, 8/15/14, at 11.



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        The court held the instant probation revocation hearing on August 15,

2014.      It revoked Appellant’s probation and imposed the underlying

consecutive sentences of 1½ to 3 years’ imprisonment for terroristic threats

and 1 to 2 years’ imprisonment for simple assault, to be served in state

prison. Appellant filed a timely post-sentence motion, but neither the trial

docket nor certified record indicates the trial court ruled on it.   Appellant

then filed a timely notice of appeal3 and complied with the court’s order to

file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

        On appeal, Appellant presents two issues, which we address together.

First, he avers the trial court abused its discretion and imposed a manifestly

excessive sentence, where he did not commit a new crime and there was no

need to vindicate the court’s authority. In support, he asserts the following.

The imprisonment sentence following Appellant’s first revocation of probation

(“VOP”) “was a wake-up call” and he “completed numerous programs in

county custody.”    Appellant’s Brief at 19.   Upon release, “[h]e enrolled in

and provided probation with a Kaplan student ID” and “[h]is only failure

appeared to be payments on his costs and fines.” Id. at 19-20. Appellant

did not appear for the August 24, 2014 VOP hearing because he did not have

money to pay his fines and costs and was “fearful he would go to jail for

failing to comply.” Id. He then “had to drop out of Kaplan because of the

3
 See Pa.R.Crim.P. 708(E) (“The filing of a motion to modify sentence will
not toll the 30-day appeal period.”).




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[trial] court’s bench warrant,” but nevertheless “found regular work for

almost six months,” before stopping in March of 2014 in order to stay home

to care for his children while his fiancée worked.      Id.   Appellant “stopped

using drugs[,] was not committing crimes . . . and was successfully

reintegrating himself to society despite having a bench warrant hanging over

his head.”4    Id.   With respect to vindicating its authority, the trial court’s

opinion “attempts to make much of his non-reporting.” Id. at 23. Appellant

concludes the sentence of “a half decade of incarceration on a young man

who was truly getting his life in order, . . . has never been convicted of a

felony, was not a danger to the community, was proving he was not likely to

commit another crime, and obviously had a troubled youth,5 places ‘form

over substance.’” Id. at 24.

      Appellant’s second argument is that the court abused its discretion by

failing to consider the factors of 42 Pa.C.S. § 9721(b): his rehabilitative

needs, the gravity of the offense, and the need for public protection.

Instead, he alleges, the court’s sentence “is counterproductive [and]

vindictive.”   Id. at 31.     Appellant contends that although our Supreme


4
  Appellant refers this Court to a book that “discuss[es] in detail the
extraordinary difficulty of leading a law-abiding life in Philadelphia while
wanted on a warrant.” Appellant’s Brief at 24 (citing Alice Goffman, ON THE
RUN (2014)).
5
  Elsewhere in his brief, Appellant states he had a “difficult childhood as
exemplified by the numerous dependency petitions filed on his behalf.” Id.
at 12.



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Court’s 2014 decision in Commonwealth v. Pasture, 107 A.3d 21 (Pa.

2014), “declared that a [VOP court] is not ‘cabined’ by [42 Pa.C.S. §] 9721,

it did not say such individualized considerations were irrelevant.” Id. at 26.

Appellant maintains that in imposing a VOP sentence, a court may not

“ignore the fundamental constraints of individualized and proportional

sentencing.” Id. at 26-27. Appellant also cites an annual cost of $40,000 to

the Commonwealth for his incarceration—an amount “which dwarfs” his fees

and fines—and claims that any deductions of “a few dollars” to pay his fines

“from [his prison] account teaches him nothing, and does nothing to

increase his likelihood of his successful reintegration.” Id. We find no relief

is due.

      Preliminarily, we note Appellant’s claim goes to the discretionary

aspects of his sentence, and he has preserved this issue for our review. See

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

(stating that to reach merits of discretionary aspect of sentence issue, we

must confirm, inter alia, appellant preserved issue, appellate brief includes

Pa.R.A.P. 2119(f) statement of reasons for allowance of appeal, statement

raises substantial question that sentence is not appropriate under sentencing

code, and that claim that probation revocation sentence is excessive in light

of underlying technical violations can present substantial question), appeal

denied, 109 A.3d 678 (Pa. 2015).

      This Court has stated:



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         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.

Id. at 1041 (citations omitted).

      Section   9721(b) of    the   Sentencing   Code,   “General   standards,”

provides in pertinent part,

         In selecting from the [sentencing] alternatives set forth in
         subsection (a), 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 defendant. . . . In every case in which the court . . .
         resentences an offender following revocation of probation .
         . . , the court shall make as a part of the record, and
         disclose in open court at the time of sentencing, a
         statement of the reason or reasons for the sentence
         imposed. . . . Failure to comply shall be grounds for
         vacating the sentence or resentence and resentencing the
         defendant.

42 Pa.C.S. § 9721(b).

      Section 303.1(b) of the Pennsylvania Code, however, states in part:

“The sentencing guidelines do not apply to sentences imposed as a result of

the following: . . . revocation of probation, intermediate punishment or


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parole.” 204 Pa. Code § 303.1(b).

     In Pasture, the Pennsylvania Supreme Court cited Section 303.1(b)

and stated:

        At initial sentencing, all of the rules and procedures
        designed to inform the court and to cabin its discretionary
        sentencing authority properly are involved and play a
        crucial role. However, it is a different matter when a
        defendant reappears before the court for sentencing
        proceedings following a violation of the mercy bestowed
        upon him in the form of a probationary sentence. For
        example, in such a case, contrary to when an initial
        sentence is imposed, the Sentencing Guidelines do not
        apply, and the revocation court is not cabined by Section
        9721(b)’s requirement 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 defendant.” 42 Pa.C.S. §
        9721. See Commonwealth v. Reaves, . . . 923 A.2d
        1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b)
        (Sentencing Guidelines do not apply to sentences imposed
        as result of revocation of probation)).

            Upon revoking 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.”
        42 Pa.C.S. § 9771(b). Thus, upon revoking probation, the
        trial court is limited only by the maximum sentence that it
        could have imposed originally at the time of the
        probationary sentence, although once probation has been
        revoked, the court shall not impose a sentence of total
        confinement 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



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              (3) such a sentence is essential to vindicate the
           authority of the court.

        42 Pa.C.S. § 9771(c).

Pasture, 107 A.3d at 27.

     At the instant VOP hearing, the trial court stated:

           [Appellant’s] entire history with this court has been
        absconding. He never turned himself in at any point.
        Obviously, if he was trying to get himself on the right track
        the first thing he would have done is turn himself in. He
        doesn’t get additional credit for the mistake that was made
        with the family member, which resulted in the police
        coming to [his house].

N.T. at 15-16.    In its opinion, the court again emphasized Appellant’s

absconding and failure to comply with the terms of his probation:

        [A] sentence of total confinement was necessary to
        vindicate the authority of the Court. As this Court noted,
        [Appellant] had been in absconding status for almost his
        entire period of probation. During [Appellant’s] first period
        of probation, he reported for only 5½ months before
        absconding for 7 months. Even after [Appellant] turned
        himself in to the probation department, he reported only
        sporadically[,] did not comply with the terms and
        conditions of his probation[,] tested positive for marijuana
        on multiple occasions and threatened his probation officer
        with violence. . . .

           In his second period of probation, [Appellant] reported
        for probation for only 10 months[, during which he did not
        comply with the terms and conditions of his probation.
        Appellant then] failed to appear in court and absconded for
        23 months[. He never turned himself in or reported to
        probation but instead was arrested on his outstanding
        bench warrant.] During his entire period of probation, he
        made only a $10 payment towards his fines and costs
        despite being ordered by this Court to pay $40 a month.
        Furthermore, while [Appellant] claimed he was attending
        school, he never brought any documentation showing that


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         he was enrolled in school or employed. . . . As this Court
         noted, [Appellant] had thumbed his nose at this Court
         whenever he was on probation and therefore a sentence of
         total confinement was essential to vindicate the authority
         of this Court.

Trial Ct. Op. at 6-7 (paragraph break added).

      Appellant argues, “That Section 9721 does not apply to a violation of

probation hearing is wrong.”    Appellant’s Brief at 15.   Our Supreme Court

stated in Pasture that a “revocation court is not cabined by Section

9721(b)’s requirement” to consider “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 defendant.”        Pasture, 83

A.3d at 1040-41. This panel cannot overrule that statement or grant relief

inconsistent with it.6 See Prout, 814 A.2d at 695 n.2.

      We likewise find no relief due on Appellant’s remaining arguments.

6
   In December of 2013, a unanimous en banc panel of this Court in
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc),
cited Section 303.1(b) and stated “parts of [42 Pa.C.S.] § 9721(b) do not
govern revocation proceedings.” Id. at 1040. However, it stated a VOP
court must still “follow the general principle [under Section 9721(b)] 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 defendant.” Id. at 1040-41.

      Our Supreme Court decided Pasture one year later, in December of
2014. “Although we generally are bound by prior panel decisions of this
Court, where, as here, intervening Supreme Court authority calls into
question that authority, we are constitutionally bound to follow decisions of
the Pennsylvania Supreme Court.” Commonwealth v. Prout, 814 A.2d
693, 695 n.2 (Pa. Super. 2002) (citation omitted).




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The claim that he attempted to live a law-abiding life “despite having a

bench warrant hanging over his head” denigrates the seriousness of his

absconding from the court’s authority and ignores the court’s extensive

discussion of this conduct. See N.T. at 7; Trial Ct. Op. at 6-7; Appellant’s

Brief at 23-24. Appellant’s policy argument, comparing the Commonwealth’s

annual cost of imprisoning him and the amount of fines and costs he owes,

is a point well taken and should be considered by a trial court.

Nevertheless, this Court “give[s] great weight to the sentencing court’s

discretion,” and we hold Appellant has not met the high standard of

establishing   the   court   exercised   manifestly   unreasonable   judgment,

partiality, prejudice, bias or ill-will. See Colon, 102 A.3d at 1041; see also

42 Pa.C.S. § 9771(b).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2015




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