J. S64039/15




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
SETH ALAN REEDER,                           :
                                            :
                          Appellant         :     No. 204 MDA 2015

           Appeal from the Judgment of Sentence December 31, 2014
               In the Court of Common Pleas of Lycoming County
               Criminal Division No(s).: CP-41-CR-0001376-2012
                                         CP-41-CR-0001377-2012

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 09, 2015

        Appellant, Seth Alan Reeder, appeals from the judgment of sentence

entered in the Lycoming County Court of Common Pleas following the trial

court’s revocation of his intermediate punishment program (“IPP”) sentence.

He challenges the discretionary aspects of his sentence. We affirm.

        We adopt the facts and procedural history of this case as set forth by

the trial court’s opinion. See Trial Ct. Op., 5/18/15, at 1-4. Appellant filed

a timely notice of appeal.1 Appellant filed a court-ordered Pa.R.A.P. 1925(b)


*
    Former Justice specially assigned to the Superior Court.
1
  “An appellant whose revocation of probation sentence has been imposed
after a revocation proceeding has 30 days to appeal [the] sentence from the
day [the] sentence is entered, regardless of whether or not [he or] she files
a post-sentence motion.” Commonwealth v. Parlante, 823 A.2d 927, 929
J.S64039/15


statement of errors complained of on appeal2 and the trial court filed a

responsive opinion.3       Appellant raises the following issue on appeal:

“Whether the trial court abused its discretion in imposing a sentence of one

and one-half (11/2) years to five (5) years as a result of an [sic] County

[IPP] Violation?”4 Appellant’s Brief at 6.



(Pa. Super. 2003) (citing, inter alia, Pa.R.Crim.P. 708D)). In the case sub
judice, Appellant was re-sentenced on December 21, 2014. He filed his
notice of appeal on January 29, 2015.
2
   We note that the trial court entered an order on February 5, 2015,
directing Appellant to file and serve his Pa.R.A.P. 1925(b) statement “within
twenty-one (21) days of the date hereof.” Order, 2/5/15. Appellant filed his
Rule 1925(b) statement on March 13, 2015. We need not find the late filing
results in waiver. In Commonwealth v. Veon, 109 A.3d 754 (Pa. Super.),
appeal granted on other grounds, 121 A.3d 954, 955 (Pa. Aug. 20, 2015),
this Court addressed the issue of an untimely Rule 1925(b) statement.

           First, the trial court maintains that [the defendant] has
           waived all of his issues on appeal by failing to file a timely
           statement of matters complained of on appeal pursuant to
           Rule 1925(b) of our Rules of Appellate Procedure. Waiver
           is no longer the remedy under such situations.
           Where the trial court does not address the issues raised in
           an untimely 1925(b) statement, we remand to allow the
           trial court an opportunity to do so. On the other hand,
           where, as here, the trial court has addressed the issues
           raised in an untimely Rule 1925(b) statement, we need not
           remand and may address the issues on their merits.

Id. at 762 (citations omitted and emphasis added).
3
    The Commonwealth did not file a brief in the instant case.
4
  We note that the principles which apply to revocation of probation apply to
revocation of an IPP sentence. In Commonwealth v. Philipp, 709 A.2d
920 (Pa. Super. 1998), this Court opined:




                                       -2-
J.S64039/15


      Appellant argues “that the trial court abused its discretion in imposing

sentence because of the nature of Appellant’s violations, the lack of a new

criminal conviction, the availability of less restrictive sanctions, and because

the sentence is excessive to vindicate the authority of the court.”

Appellant’s Brief at 12. Appellant avers that his supervision violations of the

IPP, viz., “his absconding status and his use of marijuana” and “the nature

of his original crime” should not have resulted in a sentence of total

confinement under 42 Pa.C.S. § 9771(c). Id. at 12-13.

      Appellant challenges the discretionary aspect of his sentence.       This

Court has stated,

         discretionary aspects of . . . sentence . . . are not
         appealable as of right. Rather, an appellant challenging
         the sentencing court’s discretion must invoke this Court’s
         jurisdiction by satisfying a four-part test.

               We conduct a four-part analysis to determine: (1)
            whether 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 appellant’s brief has a fatal defect,

         [A] Sentence of Intermediate Punishment[ ] may be
         revoked where the specific conditions of the sentence have
         been violated.        “Upon revocation, the sentencing
         alternatives available to the court shall be the same as the
         alternatives available at the time of initial sentencing.” 42
         Pa.C.S. § 9773, Modification or revocation of intermediate
         punishment sentence, (b) Revocation. This rule of re-
         sentencing is analogous to that set forth for re-sentencing
         following revocation of probation.

Id. at 921 (emphases omitted).



                                     -3-
J.S64039/15


             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).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

      Instantly, Appellant timely appealed, preserved his issue in his post

sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.

Accordingly, we ascertain whether Appellant has raised a substantial

question. See id.

      “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)

(quotation marks and citation omitted), appeal denied, 91 A.3d 161 (Pa.

2014).      “[I]f a defendant believes the record is devoid of evidence

supporting total confinement under § 9771(c), he must preserve that

argument as a challenge to the discretionary aspects of the sentence.”

Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012).               “An

argument that the trial court imposed an excessive sentence to technical

probation    violations   raises   a   substantial   question.”   Id.   (citing

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).

      Appellant sufficiently alleges his sentence is disproportionate to the

technical nature of his IPP violations and conflicts with Section 9771(c). We


                                       -4-
J.S64039/15


therefore find Appellant has raised a substantial question. See Dodge, 77

A.3d at 1268; Schutzues, 54 A.3d at 98.

      Our standard of review is as follows:

            Sentencing is a matter vested in the sound
            discretion of the sentencing judge, and a sentence
            will not be disturbed on appeal absent a manifest
            abuse of discretion. An abuse of discretion is more
            than just an error in judgment and, on appeal, the
            trial court will not be found to have abused its
            discretion unless the record discloses that the
            judgment exercised was manifestly unreasonable,
            or the result of partiality, prejudice, bias, or ill-will.

         More specifically, 42 Pa.C.S.A. § 9721(b) offers the
         following guidance to the trial court’s sentencing
         determination:

            [T]he    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.

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (some

citations omitted).    “[W]hen a defendant is found in violation of his

probation, upon revocation the sentencing alternatives available to the court

shall be the same as were available at the time of initial sentencing . . . .”

Schutzues, 54 A.3d at 98-99.

         Under 42 Pa.C.S. § 9771(c), a court may sentence a
         defendant to total confinement subsequent to revocation of
         probation if any of the following conditions exist:

            1. the defendant has been convicted of another
            crime; or



                                       -5-
J.S64039/15


             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 this court.

Crump, 995 A.2d at 1282-83. This court has declined to find an abuse of

discretion when “continued drug use, combined with [the defendant’s]

resistance   to   treatment    and   supervision,   [was]   enough   to   make   a

determination that, unless incarcerated, appellant would in all likelihood

commit another crime.”        Commonwealth v. Cappellini, 690 A.2d 1220,

1225 (Pa. Super. 1997).

     After careful consideration of the record, Appellant’s brief, and the

well-reasoned decision of the Honorable Marc F. Lovecchio, we affirm on the

basis of the trial court’s opinion.     See Trial Ct. Op. at 5-7 (holding (1)

Appellant is likely to commit another crime if not confined; and (2) due to

substance abuse, personality disorders, and refusal to report to supervising

officer “alternatives to incarceration cannot work.”)        Accordingly, having

discerned no abuse of discretion, we affirm the judgment of sentence. See

Bricker, 41 A.3d at 875.




                                       -6-
J.S64039/15


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2015




                                 -7-
                                                                       Circulated 10/13/2015 03:02 PM




         IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA



COMMONWEALTH                                       No. CP-41-CR-1376-2012;
                                                                                I
                                                         CP-41-CR-1377-2012
   vs.


SETH REEDER,
     Appellant                                     1925(a) Opinion


                           OPINION IN SUPPORT OF ORDER IN
                           COMPLIANCE WITH RULE 1925(a) OF                                 ·;__i
                         THE RULES OF APPELLATE PROCEDURE
                                                                                           {',)


                   This opinion is written in support of this court's order dated DecemberTl ,

2014, in which the court revoked Seth Reeder's intermediate punishment and re-sentenced

him to undergo 1 Yi to S years' incarceration in a state correctional institution, and its order

dated January 12, 2015, in which the court summarily denied Appellant's motion for

reconsideration.     The relevant facts follow.

                   Under Information 1376-2012, Reeder was charged with theft of property lost,

mislaid or delivered and receiving stolen property, both misdemeanors of the second degree.

Under Information 1377-2012,       Reeder was charged with criminal trespass, a felony of the

third degree; theft by unlawful taking, a felony of the third degree; receiving stolen property,

a felony of the third degree; theft from a motor vehicle, a misdemeanor of the first degree;

and corruption of minors, a misdemeanor of the first degree.

                   On October 24, 2012, Reeder pleaded guilty to Count 1, theft of property lost,

mislaid or delivered under lnfonnation 1376-2012       and Count 4, theft from a motor vehicle


                                                                                                    1
                                                                    Circulated 10/13/2015 03:02 PM




under Information 1377-2012, as well as three additional charges under two other cases. The

Honorable Nancy L. Butts imposed an aggregate sentence of 36 months supervision under the

intermediate punishment program, which included 6 months on each of the theft offenses. A

condition of supervision was that Reeder complete Drug Court.

               Reeder did not do very well in Drug Court or on supervision in general. On

January 9, 2013, he received a sanction of25 additional hours of conununity service for

missing a follow-up appointment with West Branch Drug and Alcohol Conunission.         On

March 20, 2013, the Honorable Nancy Butts imposed a sanction of 48 hours of incarceration

at the Lycoming County Prison because he missed his counseling appointment at Crossroads

on March 13, 2013.

               On June 26, 2013, Judge Butts found that Reeder was terminated from the job

search program, which would directly interfere with his funding for treatment. She imposed

a sanction of 25 hours of community service and directed Reeder to get back in the job search

program by whatever means possible so he wouldn't lose his funding.

               In January 2014, Appellant lost his address at the American Rescue Workers.

It was also alleged that he may have stolen some items from the American Rescue Workers.

A preliminary violation hearing was held and he was sent for a 60-day diagnostic evaluation.

On April 29, 2104, at the final violation hearing, Reeder admitted violating his intermediate

punishment sentence.

               The Honorable Dudley Anderson revoked Reeder's original intermediate

punishment sentences. Under 1376-2012, Judge Anderson re-sentenced Reeder to 24 months

of supervision under the intermediate punishment program with the first 9 months and 21


                                                                                                2
                                                                Circulated 10/13/2015 03:02 PM




days to be served at the Lycoming County Prison/Pre-Release Center for theft of property lost

or mislaid. On theft from a motor vehicle, under 1377-2012, Judge Anderson imposed a

sentence of 18 to 36 months of incarceration in a state correctional institution but suspended

it upon the condition that Reeder successfully complete the supervision under 1376-2012.

With credit for time served, Reeder was released from incarceration in May 2014.

               Unfortunately, Reeder stopped reporting to his probation officer in September.

He failed to report on September 22, 2014; October 6, 2014; October 20, 2014; November 3,

2014; and November 6, 2014. As a result, a bench warrant was issued for his arrest.

               Reeder was apprehended on December 19, 2014. At that time, he admitted

smoking marijuana on a series of occasions. It was also alleged that he was verbally abusive

and failed to comply with the directives of adult probation officers and other law enforcement

personnel when he was apprehended.

               At his violation hearing on December 31, 2014, Reeder admitted that he

absconded from September forward and that he used marijuana after he had been released in

May. The court revoked his intermediate punishment and sentenced him to 1 Yz to 5 years'

incarceration for theft from a motor vehicle under 1377-2012 and a concurrent 1 to 2 years'

incarceration for the theft under 1376-2012.

               On January 8, 2015, Reeder filed a motion for reconsideration, in which he

asserted that Lycoming County had alternative resources available to treat his alleged mental

health issues that would not require him to serve a period of state incarceration and full

incarceration, as opposed to a new intermediate punishment program at the county level, was

excessive when he had not committed any new offense. The court summarily denied the

                                                                                                 3
                                                                       Circulated 10/13/2015 03:02 PM




motion for reconsideration on January 12, 2015.

                Reeder filed a timely notice of appeal. The sole issue asserted on appeal is

that the court abused its discretion when imposing a re-sentence of total confinement in a

state correctional institution for technical probation violations in light of Reeder' s mental
                                       -~
health condition and needs, his acceptance of responsibility, and the fact that he had not

committed a new criminal offense as argued by defense counsel at the time of the violation

hearing.

                A sentence will not be reversed on appeal unless the sentencing court abused

its discretion. "[ A ]n abuse of discretion is more than a mere error of judgment; thus, a

sentencing court will not have 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. Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007), quoting

Commonwealth v, Smith, 543 Pa 566, 673 A.2d 893, 895 (1996).

                An intermediate punislunent sentence may be revoked when a defendant

violates the specific conditions of the sentence.   Commonwealth v. Philipp, 709 A.2d 920,

921 (Pa. Super. 1998). Revocation and re-sentencing following a violation of an intermediate

punishment sentence is analogous to revocation and re-sentencing for a probation violation;

the sentencing court possesses all the sentencing alternatives it had at the time of the initial

sentencing, but the sentencing guidelines do not apply. Id. Thus, the court is limited only by

the maximum sentence that it could have imposed originally at the time of the intermediate

punishment sentence.    See Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).

                A sentence of total confinement was one of the alternatives available to the


                                                                                                   4
                                                                 Circulated 10/13/2015 03:02 PM




court at the time of the initial sentencing. 42 Pa.C.S.A. §9721(a)(4). The maximum sentence

the court could have imposed was a sentence of2 Y2 to 5 years for the theft under 1377-2012

and a sentence of 1 to 2 years for the theft under 1376-2012. The court had the discretion to

impose them consecutively or concurrently. 42 Pa.C.S.A. §972l(a). The court imposed a

sentence of 1 Y2 to 5 years of incarceration under 1377-2012 and a concurrent sentence of 1 to

2 years under 1376-2012.

               Reeder contends that the court should not have imposed a sentence of total

confinement because he has mental health issues, he accepted responsibility and he was not

charged with any new criminal offenses. Generally, intermediate punishment and probation

have been treated similarly. Upon revocation of a sentence of probation, the court can only

impose a sentence of total confinement if "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.A. §9771(c).

               The evidence presented at the violation hearing showed that it is likely Reeder

will commit another crime if he is not confined. According to the report from his 60-day

evaluation in March 2014, his primary mental health diagnosis is poly-substance abuse that is

in forced remission. He also has Axis II personality disorders that affect his ability to control

his behaviors and impulses. N.T., at 10. Unfortunately, with his substance abuse and

personality disorders, Reeder seems to be in a cycle that is only broken when he is

incarcerated. While incarcerated, Reeder was taking his medications as prescribed. After he

was released, he thought he was going to be alright without taking his prescribed

                                                                                                  5
                                                                        Circulated 10/13/2015 03:02 PM




medications.   He stopped taking his medications, absconded from supervision, and "self-

medicated" with illegal drugs. N.T., at 5, 9. To self-medicate with illegal drugs, Reeder had

to possess them. Possession of a controlled substance is a crime. 35 P .S. §780-113.

                Defense counsel advocated for an involuntary mental health commitment. The

court did not view this as a viable long-term solution. To be involuntarily committed an

individual must pose a clear and present danger of harm to himself or others. There also are

strict time limits for the duration of any involuntary commitment.      Once an individual no

longer poses a clear and present danger of harm to himself or others, he must be released.

There would be no mechanism to ensure that Reeder would continue to take his medications

after his release, and he could not be recommitted until he deteriorated to the point where he

again became a danger to himself or others. The court did not want to expose Reeder or the

public to that type of risk of harm.

                In a state correctional facility, Reeder will be able to receive mental health

medications and treatment. Once he is paroled, however, he will be subject to supervision

and could be randomly drug tested to ensure that he is not self-medicating.

                The court does not take pleasure in sending people to state prison, especially

individuals who have mental health issues. However, Lycoming County judges and members

of the probation office have tried to help Reeder through Drug Court and intermediate

punishment programs. They also have tried escalating sanctions for his violations. Those

efforts have not been successful.      Sadly, the court is convinced that continuing with those

efforts in this case would have been an exercise in futility. Moreover, the alternatives to

incarceration cannot work when Reeder fails or refuses to report to his supervising officer as


                                                                                                    6
                                                               Circulated 10/13/2015 03:02 PM




directed.




DA TE:      _~_,..._I_S--_.....1-D_~_              By The Court,




                                                   Marc F. Lovecchio, Judge




cc:      District Attorney
         Robert Cronin, Esquire (APD)
         Work file
         Gary Weber, Esquire (Lycoming Reporter)
         Superior Court (original & 1)




                                                                                            7
Circulated 10/13/2015 03:02 PM
