J-S24043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 FREDDIE HOOKS,                          :
                                         :
                   Appellant             :       No. 1738 MDA 2017

           Appeal from the Judgment of Sentence April 25, 2017
            in the Court of Common Pleas of Lancaster County,
           Criminal Division at No(s): CP-36-CR-0001042-2007

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JULY 24, 2018

     Freddie Hooks (“Hooks”) appeals from the judgment of sentence

imposed following the revocation of his probation.    We affirm in part and

vacate in part, and remand for further proceedings.

     This Court previously set forth the relevant underlying facts as follows:

     On November 2, 2007, [Hooks] entered negotiated guilty pleas to
     [rape, aggravated indecent assault, and corruption of minors] for
     his repeated sexual assault, over a two year period [(starting in
     November 2001)], of the victim, who was 8 years old when the
     assaults began.[fn1] [As part of his guilty plea, Hooks also signed
     “Special Conditions of Probation/Parole for Sexual Offenders,”
     which, inter alia, directed Hooks to undergo sex offender
     treatment as ordered by the Lancaster County Adult
     Probation/Parole Services.] Due to the nature of the charges, the
     trial court ordered [Hooks] to undergo an assessment by the
     Sexual Offender Assessment Board to determine whether he
     should be classified as a sexually violent predator under Megan’s
     Law. See[] 42 Pa.C.S.[A.] § 9795.4. When the assessment was
     completed, the trial court held a Megan’s Law hearing, during
     which both the Commonwealth and the defense presented expert
     testimony. By Order dated February 29, 2008, the trial court
     determined that [Hooks] met the definition of a sexually violent
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       predator. On March 14, 2008, [Hooks] was sentenced, pursuant
       to a negotiated plea, to a term of imprisonment of [] five years to
       ten years[, and a consecutive probation term of three years,] for
       the charge of rape, and a concurrent term of five years to ten
       years for the charge of aggravated indecent assault. No further
       penalty was assessed on the charge of corruption of minors.
       [Hooks was also subject to a lifetime reporting requirement under
       Pennsylvania’s Megan’s Law III.1]
       ___________________________________________________

           [Hooks] was babysitting the victim when the attacks occurred.
       [fn1]

       In several instances, he blindfolded the victim and inserted objects
       into her vagina. Moreover, the victim had been diagnosed with
       Asperger’s syndrome, a disorder on the autism spectrum, in which
       “individuals have difficulty in understanding social cues from
       others.” N.T., February 26, 2008, p. 8.

Commonwealth v. Hooks, 976 A.2d 1207 (Pa. Super. 2009) (unpublished

memorandum at 1-2) (footnote in original, footnote omitted, footnote added).



____________________________________________


1 On December 16, 2013, the Supreme Court of Pennsylvania ruled that
Megan’s Law III was unconstitutional because Act 2004-152 (Act 152),
including the provisions of Megan’s Law III, amounted to omnibus legislation,
which violated the Single Subject Rule of Article III, Section 3, of the
Pennsylvania Constitution. See Commonwealth v. Neiman, 84 A.3d 603,
615 (Pa. 2013). The Supreme Court directed that its decision be stayed for
90 days to provide the Legislature the opportunity “to consider appropriate
remedial measures, or to allow for a smooth transition period.” Id. at 616.
The Sexual Offender Registration and Notification Act (“SORNA”) went into
effect on December 20, 2012, and “provided for the expiration of Megan’s Law
III at that time.” Commonwealth v. Derhammer, 173 A.3d 723, 725 (Pa.
2017). Subsequently, the Supreme Court of Pennsylvania held that the
registration provisions under SORNA were unconstitutional.               See
Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017). Further, this
Court held that section 9799.24(e)(3) of SORNA, the mechanism used to
designate a convicted defendant a “sexually violent predator,” violated the
United States and Pennsylvania Constitutions. See Commonwealth v.
Butler, 173 A.3d 1212, 1218 (Pa. Super. 2017).



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        This Court affirmed the judgment of sentence, and the Supreme Court

of Pennsylvania denied allowance of appeal on June 1, 2010. See id., appeal

denied, 996 A.2d 491 (Pa. 2010).

        On November 28, 2016, a capias was issued at the request of the

Lancaster County Office of Adult Probation and Parole Services based upon

Hooks’s refusal to enroll in and complete sex offender treatment as required

by the “Special Conditions of Probation/Parole for Sexual Offenders.”2      On

February 24, 2017, a probation violation hearing was held, after which Hooks

was found in violation of his probation.         On April 25, 2017, Hooks was

sentenced to five to ten years in prison.        Hooks filed a Motion to Modify

Sentence, which the trial court denied. Hooks did not initially file a direct

appeal.

        On October 5, 2017, Hooks filed a Petition pursuant to the Post

Conviction Relief Act (“PCRA”),3 arguing that his counsel was ineffective for

failing to file a direct appeal following the imposition of the probation

revocation sentence. The PCRA court granted Hooks’s Petition. Thereafter,

Hooks filed a Notice of Appeal of the violation of his probation revocation

sentence. The trial court ordered Hooks to file a Pa.R.A.P. 1925(b) concise

statement, and Hooks timely complied.



____________________________________________


2   Hooks served his entire ten-year prison sentence.

3   See 42 Pa.C.S.A. §§ 9541-9546.

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       On appeal, Hooks raises the question for our review:

       Was a sentence of five to ten years[’] incarceration for a probation
       violation so manifestly excessive as to constitute too severe a
       punishment and clearly unreasonable under the circumstances of
       this case, as it was not consistent with the protection of the public,
       the gravity of the offenses, and the rehabilitative needs of
       [Hooks], and the court did not impose an individualized sentence
       which took into consideration [Hooks’s] circumstances?

Brief for Appellant at 4.

       Hooks challenges the discretionary aspects of his sentence following the

revocation of his probation.4         “Challenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.” Commonwealth

v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

       An appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction by satisfying a four-part test:

       We conduct a four-part analysis to determine: (1) whether the
       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 the 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).

                                          ***


____________________________________________


4 We note that Hooks was explicitly charged with violating the terms of the
“Special Conditions of Probation/Parole for Sexual Offenders,” not a violation
of Megan’s Law III. Cf. Derhammer, 173 A.3d at 728-31 (holding that
Commonwealth lacked authority to prosecute defendant for failing to register
as a sex offender within 48 hours of changing his address, because the statute
setting forth offense under Megan’s Law III had been ruled unconstitutional,
and the statute in SORNA had not been enacted at the time of the alleged
offense).

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      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists only when the appellant advances a colorable argument
      that the sentencing judge’s 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.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

      In the instant case, Hooks filed a timely Notice of Appeal, preserved his

claim in a timely Motion to Reconsider, and included in his appellate brief a

separate Rule 2119(f) Statement. Hooks’s contention that his prison sentence

was excessive in light of a technical probation violation raises a substantial

question. See Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super.

2014) (stating that a claim challenging a sentence of total confinement, based

solely on a technical probation violation, raises a substantial question). Thus,

we will consider the merits of Hooks’s claims.

      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 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.

Id. (citation omitted).

             The reason for this broad discretion and deferential standard
      of appellate review is that the sentencing court is in the best
      position to measure various factors and determine the proper
      penalty for a particular offense based upon an evaluation of the
      individual circumstances before it. Simply stated, the sentencing
      court sentences flesh-and-blood defendants and the nuances of
      sentencing decisions are difficult to gauge from the cold transcript

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      used upon appellate review. Moreover, the sentencing court
      enjoys an institutional advantage to appellate review, bringing to
      its decisions an expertise, experience, and judgment that should
      not be lightly disturbed.

             The sentencing court’s institutional advantage is, perhaps,
      more pronounced in fashioning a sentence following the revocation
      of probation, which is qualitatively different than an initial
      sentencing proceeding. 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
      appears 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.A. § 9721.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and

quotation marks omitted).

      Upon revocation of probation, a sentencing court may choose from any

of the sentencing options that existed at the time of the original sentence,

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(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.” Id. § 9771(c).




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      Moreover, “[i]n every case in which the court … resentences an offender

following revocation of probation, … the court shall make as 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.” Id. § 9721(b); see also Pa.R.Crim.P.

708(D)(2) (providing that “[t]he judge shall state on the record the reasons

for the sentence imposed.”). However, following revocation of probation, a

sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statutes in question. See

Pasture, 107 A.3d at 28 (stating that “since the defendant has previously

appeared before the sentencing court, the stated reasons for a revocation

sentence need not be as elaborate as that which is required at initial

sentencing.”).

      Hooks contends that his probation revocation sentence was manifestly

excessive. Brief for Appellant at 10, 12. Hooks argues that while in prison,

he completed over 800 hours of educational and vocational courses. Id. at

12; see also id. (noting that Hooks had developed a plan to succeed after his

release from prison, and that he had been accepted into the New Person

Center).   Hooks asserts that the trial court failed to consider his positive

strides and only focused on his failure to complete sex offender treatment.

Id. Hooks claims his sentence should be reversed, and the case remanded

for resentencing. Id. at 13.

      The trial court addressed Hooks’s claims as follows:


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      In crafting the sentence[,] the [trial c]ourt considered the
      [p]robation      violation     summary,        the     [p]re-sentence
      [i]nvestigation, statements made by [Hooks] and counsel, the
      rehabilitative needs of [Hooks], and the risk [Hooks] posed to the
      community. Despite [Hooks’s] exemplary prison record, the [trial
      c]ourt noted that it was particularly concerned that [Hooks] failed
      to complete sexual offender counseling. Per the [p]robation
      [v]iolation [s]ummary, [Hooks] failed, after given several
      opportunities, to fully accept responsibility for his offenses, as well
      as complete the required homework for his sexual offender
      treatment program. Therefore, [Hooks] was discharged from the
      program on September 21, 2011. Given the severity of [Hooks’s]
      crime, and the danger that sexual offenders pose to the rest of
      the community, [Hooks’s] failure to complete the required
      programming is concerning. The [trial c]ourt noted that this
      failure to complete the treatment program was a “huge concern,”
      and although [Hooks] completed other programs while
      incarcerated, “it seems he was missing the most important one of
      all, which is the sexual offender type of counseling.” [N.T.,
      4/25/17, at 7.] Furthermore, [Hooks] had ten years to complete
      the required counseling, and failed to do so. In light of these
      concerns, releasing [Hooks] would have posed a significant risk to
      the community, and the [trial c]ourt did not abuse its discretion
      in imposing an appropriate sentence.

Trial Court Opinion, 1/2/18, at 3-4 (unnumbered, footnotes omitted); see

also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (stating that

“[w]here pre-sentence reports exist, we shall continue to presume that the

sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors. A pre-sentence report constitutes the record and speaks for itself.”);

id. (noting that “[h]aving been fully informed by the pre-sentence report, the

sentencing court’s discretion should not be disturbed.”).

      Based upon the foregoing, we conclude that the record confirms that

the trial court had sufficient information to make a fully informed sentencing

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decision following the revocation of Hooks’s probation.       Additionally, we

conclude that Hooks’s prison sentence is not manifestly excessive. Discerning

no abuse of discretion by the trial court, we will not disrupt Hooks’s sentence

on appeal. See Devers, supra.

      Furthermore, although Hooks does not challenge his sexually violent

predator status, we sua sponte address the impact of Nieman on the legality

of Hooks’s sexually violent predator designation. See Butler, 173 A.3d at

1214 (addressing the legality of appellant’s sexually violent predator status

sua sponte). Here, at the time of Hooks’s plea and sentence, Megan’s Law III

controlled sexually violent predator assessments.    In light of our Supreme

Court’s disposition in Neiman striking the entirety of Megan’s Law III as

violative of the Pennsylvania Constitution, we are constrained to vacate

Hooks’s sexually violent predator determination under Megan’s Law III. See

Neiman, supra.

      Based upon the foregoing, we vacate the portion of Hook’s sentence

with regard to the finding that Hooks is a sexually violent predator.      We

remand to the trial court for the sole purpose of determining Hooks’s




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registration requirements.5       We affirm Hooks’s judgment of sentence in all

other respects.

       Judgment of sentence affirmed in part and vacated in part.         Case

remanded with instructions. Jurisdiction relinquished.

       Judge Kunselman joins the memorandum.

       Judge Olson concurs in the result.




____________________________________________


5 The Legislature recently amended SORNA, adding, inter alia, section
9799.55, which states the following, in relevant part:

       (b) Lifetime registration.--The following individuals shall be
       subject to lifetime registration:

                                           ***

       (2) Individuals convicted:

       (i)(A) in this Commonwealth of the following offenses, if
       committed on or after April 22, 1996, but before December 20,
       2012:

       18 Pa.C.S.[A.] § 3121 (relating to rape);
       …

       18 Pa.C.S.[A.] § 3125 (relating to aggravated indecent assault);
       …

42 Pa.C.S.A. § 9799.55.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/24/2018




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