J-S54009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

MICA HARVEY SAUNDERS

                         Appellant                     No. 204 MDA 2014


        Appeal from the Judgment of Sentence December 31, 2013
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0002157-2008


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                           FILED OCTOBER 27, 2014

      Mica Harvey Saunders appeals from the judgment of sentence imposed

by the Court of Common Pleas of Lancaster County following revocation of

his probation. After a careful review of the record, we affirm.

      The trial court set forth the facts of this case as follows:

      On November 6, 2008, . . . Saunders pled guilty before the
      Honorable Michael J. Perezous to four counts of indecent
      exposure and four counts of open lewdness and received an
      aggregate sentence of two years of probation. At the guilty plea
      hearing, [Saunders] admitted to exposing his penis in public to
      two women and to rubbing it in a circular motion.

      Less than one year into his sentence, [Saunders] violated his
      probation by being unsuccessfully discharged from his court
      mandated sex offender treatment. Several months later, on
      December 7, 2009, [Saunders] violated his probation a second
      time by frequenting a place where children congregated. On
      December 13, 2010, [Saunders] violated his probation by
      missing an appointment and by being discharged, once again,
      from sex offender treatment.      After his third violation,
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      [Saunders] was sentenced to nine to twenty-three months of
      incarceration.

      On September 25, 2013, [Saunders] appeared before this Court
      for a probation violation hearing on his fourth violation, the
      matter which is the subject of the instant appeal.       At the
      hearing, Dr. Suzanne Ashworth, a psychotherapist, testified that
      [Saunders] had been discharged from sex offender treatment
      with Commonwealth Clinical Group. This was [Saunders’] third
      violation for being discharged from sex offender treatment, and
      exhausted all treatment provider options approved by the
      Lancaster County Court of Common Pleas.

      Dr. Ashworth stated that [Saunders] was discharged for
      persistently being dishonest about his sexual behavior, having
      thoughts of minors for masturbatory reasons, photographing his
      penis, and failing to disclose information about contact with a
      female coworker. [Saunders] admitted to these behaviors after
      failing a polygraph exam that he was administered as part of his
      treatment. Dr. Ashworth also informed the Court that all three
      therapists at her agency believed [Saunders] should be
      incarcerated until he was able to adapt to treatment in order to
      prevent him from having a hands-on victim. Following the
      hearing, the Court found that [Saunders] violated the terms of
      his supervision, revoked his probation, and ordered a pre-
      sentence investigation report.

      On December 31, 2013, a sentencing hearing was conducted on
      [Saunders’] probation violation.     At the hearing, the Court
      resentenced [Saunders] to a total aggregate sentence of one
      and one half to three years of incarceration.

      On January 9, 2014, [Saunders] filed a post sentence motion for
      arrest of judgment, motion for a new trial and motion to modify
      sentence. On January 30, 2014, before the court had the
      opportunity to rule on the motion, [Saunders] appealed to the
      Superior Court, divesting this court of jurisdiction.

Trial Court Opinion, 3/20/14, at 1-3 (citations omitted).

      On appeal, Saunders claims that this sentence constituted an abuse of

discretion because the length of incarceration was manifestly unreasonable




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under the circumstances and the record evidences the court’s bias or ill will

towards him.

      Before this Court may hear an appeal concerning the discretionary

aspects of a sentence, an appellant must: (1) file a timely notice of appeal,

(2) properly preserve the issue at sentencing or in a motion to reconsider

and modify sentencing, (3) provide in his brief a concise statement of the

reasons relied upon for relief, pursuant to Pennsylvania Rule of Appellate

Procedure 2119(f), and (4) present a “substantial question” as to whether

the sentence appealed from is not appropriate under the Sentencing Code.

42 Pa.C.S. § 9781(b); Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.

Super. 2008).

      Saunders has satisfied all of these requirements.    He preserved the

issue for appeal by filing a post-sentence motion to modify sentence within

ten days of the original sentence.    The notice of appeal was timely filed

within thirty days of the resentencing in accord with Pennsylvania Rule of

Criminal Procedure 708, under which the filing of a post-sentence motion

does not toll the appeal period.   Commonwealth v. Parlante, 823 A.2d

927, 929 (Pa. Super. 2003).    Saunders has included in his brief a concise

statement pursuant to Pa.R.A.P. 2119(f).     Finally, because a sentence of

total incarceration exceeding the original sentence was imposed for a

technical violation of probation, we find that a substantial question has been

raised. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).




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      Initially we note that imposition of a sentence of total incarceration

was within the trial court’s discretion. The sentencing alternatives available

to the court upon revocation of probation are “the same as were available at

the time of initial sentencing.” 42 Pa.C.S. § 9771(b). A court may impose a

sentence of total confinement if it finds that “the conduct of the defendant

indicates that it is likely that he will commit another crime if he is not

imprisoned; or . . . such a sentence is essential to vindicate the authority of

the court.” 42 Pa.C.S. § 9771(c). If confinement is warranted, the judge

shall select an appropriate length of sentence 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(b). Therefore, we turn to examine

Saunders’ claim that the trial court abused its discretion in sentencing him to

one and one half to three years of incarceration.

      Sentences imposed by trial courts following a revocation of probation

will not be disturbed upon appeal unless the trial court abused its discretion.

Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001).

Trial courts are in the best position to weigh various relevant factors,

including the defendant’s character and the gravity of the offense, and

therefore their selections of sentencing alternatives are accorded great

weight. Commonwealth v. Fries, 523 A.2d 1134, 1135 (Pa. Super. 1987).

      To establish an abuse of discretion, an appellant “must establish, by

reference to the record, that the sentencing court ignored or misapplied the

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law, exercised its judgment for reasons of partiality, prejudice, bias or ill will,

or arrived at a manifestly unreasonable decision.”            Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa. Super. 1999). “If the sentence imposed is

within statutory limits, there is no abuse of discretion, unless the sentence is

manifestly   excessive    so   as   to    inflict   too   severe   a   punishment.”

Commonwealth v. Martin, 477 A.2d 555, 501 (Pa. Super. 1984).

      Saunders’ brief, although not explicitly clear, makes two claims, which

will be analyzed separately. He first claims that the sentence of one and a

half to three years of incarceration is manifestly excessive under the

circumstances. We disagree.

      Judge Wright imposed a sentence that was within the statutory

guidelines for Saunders’ probation violation.         This violation was one in a

series of Saunders’ probation violations, and his fourth probation violation in

under five years.    Saunders’ discharge from Commonwealth Clinical Group

was his third violation of probation for being discharged from court-approved

sex offender treatment programs, thereby exhausting all Lancaster County

treatment options available to him.

      The    court   heard     testimony       from   Dr.   Susan      Ashworth,   a

psychotherapist with the Commonwealth Clinical Group, who stated that

Saunders was discharged from the treatment program for withholding

information necessary for treatment and repeatedly violating the rules and

procedures of the clinic.      She testified that Saunders failed to disclose

inappropriate fantasies of raping minors, accurate information regarding

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contact with a female coworker, and past sexual harassment allegations.

Because Saunders continually relied upon activities associated with a cycle of

abuse, such as photographing his penis, masturbating to thoughts of minors,

and flirting with women, Dr. Ashworth recommended that Saunders be

confined until he could successfully complete treatment.              According to Dr.

Ashworth,    all   three   therapists   at   her    treatment      group   agreed   that

confinement was appropriate considering Saunders’ behavior.

      Further testimony from a probation officer, Mr. Auker, added weight to

this recommendation. As a probation officer with the sex offender unit for

the past nine years, Mr. Auker testified that Saunders’ discharge from all

three court-approved sex offender treatment programs placed him in a

highly unusual category of sex offenders.              In Mr. Auker’s experience,

Saunders’ dishonest behavior mirrored that of other sex offenders who had

moved from internal fantasies to seeking hands-on victims.

      Given Saunders’ repeated violations of the terms of his probation, and

his demonstrated refusal or inability to amend his conduct through

treatment, Judge Wright’s sentence of one and one half to three years’

incarceration was not manifestly excessive.           The record shows that Judge

Wright considered all relevant evidence and circumstances in making a

sentencing    determination,     including    the    report   of    Saunders’   expert,

psychologist Dr. Timothy Foley, who recommended that, as an alternative to

incarceration, Saunders be referred for psychiatric assessment and placed on

an antidepressant regimen.

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      Under the circumstances of this case, it was reasonable for Judge

Wright to conclude that total incarceration was necessary to protect the

public and validate the authority of the court.    The length of sentence is

within the statutory guidelines for the original crime, and is tailored to the

rationale of confining Saunders so that he can receive sex-offender

treatment in a secure location.   Therefore, because the sentence was not

manifestly excessive, Judge Wright did not abuse his discretion with respect

to sentence selection. 42 Pa.C.S. §9721(b).

      Saunders next claims that the record shows that the judgment

exercised by Judge Wright was the product of bias or ill will, and therefore

constitutes an abuse of discretion. He alleges the harsh language in the trial

court opinion shows that Judge Wright failed to evaluate fairly his claim that

Dr. Ashworth falsely stated that Saunders had “failed” his polygraph test

while enrolled in the sex offender program. We reject this claim.

      While the tone of Judge Wright’s language is perhaps harsh, it is clear,

when read in context with the substance of Saunders’ claim at the

sentencing hearing, that Judge Wright’s response is simply a strongly

worded rejoinder.   Although Saunders was technically correct to note that

Dr. Ashworth misspoke when she testified that Saunders “failed” his

polygraph exam, this does not attenuate the uncontested nature of her

testimony, as well as other witness testimony, that shows that Saunders was

dismissed from his third sex offender treatment program for noncompliant

behavior.   Judge Wright’s strong comments merely indicate his justifiable

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conclusion that Saunders’ claim did not undermine the strength and validity

of Dr. Ashworth’s testimony as a whole. They do not evidence bias or ill will

towards Saunders.

     For the foregoing reasons, we conclude that the trial court did not

abuse its discretion when sentencing Saunders.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2014




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