J-A03030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 JOHN CHARLES ILLINGWORTH                 :
                                          :
                     Appellant            :   No. 1187 WDA 2018

       Appeal from the Judgment of Sentence Entered July 19, 2018
   In the Court of Common Pleas of Cambria County Criminal Division at
                     No(s): CP-11-CR-0002208-2012


BEFORE:    BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                               FILED JUNE 7, 2019

      Appellant, John Charles Illingworth, appeals from the judgment of

sentence entered on July 19, 2018, following revocation of his probation. After

careful consideration, we vacate the judgment of sentence and remand for

resentencing.

      The trial court summarized the factual and procedural history of this

case as follows:

            [Appellant] appeals from this [c]ourt’s July 19, 2018, re-
      sentence after his probation was revoked for multiple violations
      and his original sentence was vacated. [Appellant] was charged
      with one count each of: retail theft – take merchandise; theft by
      unlawful taking - movable property; conspiracy - retail theft; and
      disorderly conduct.1 On October 3, 2013, [Appellant] entered a
      plea of nolo contendere to one count of organized retail theft -
      merchandise valued at $5,000-$19,999, a felony of the third
      degree[.]2 On November 12, 2013, [Appellant] was sentenced to:
      pay the costs of prosecution, pay restitution of $11,500, and serve
      a period of probation of eighty-four (84) months, this sentence
      was within the standard range.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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           1Respectively 18 Pa. C.S. §§ 3929.3(a), 3921(a),
           903, and 5503(a)(4).

           2   18 Pa. C.S. § 3929.3(a).

            [Appellant] was arrested on a probation bench warrant on
     June 5, 2018, and a hearing was held on June 21, 2018.
     Testimony presented showed that: [Appellant] had not contacted
     or met with his probation officer for a prolonged period; probation
     officers had been unable to locate [Appellant]; and that
     [Appellant] had not made any payments on this matter in nearly
     five years.3 [Appellant] indicated that: he had been homeless for
     a period of time; he stayed in various homeless shelters until he
     obtained his own residence with the aid of the Union Mission in
     Latrobe; he had been unable to find employment other than odd
     jobs for his landlord; and, that for the last eighteen (18) months
     he shared a residence with his girlfriend. [Appellant] further
     testified that he thought his family was making payments on his
     behalf. Following the testimony the [c]ourt revoked [Appellant’s]
     probation finding that he had failed to comply with virtually every
     term of his probation from the date of sentencing until his arrest
     on the probation bench warrant.

           3A review of the docket entries in this matter reveals
           that no payments have been made on [Appellant’s]
           case but that his co-defendant, Daniel G. Wyers, has
           made payments towards the joint and several
           restitution amounts on his case at Cambria County
           docket number 0199-2013.         The reference to a
           payment made June 26, 2017, on page 2 of the June
           21st transcript is to a payment made by Wyers not
           [Appellant].

            The [c]ourt directed that an updated pre-sentence
     investigation [report] (PSI) was to be completed and set
     sentencing for July 19, 2018. At the July 19th hearing, [Appellant]
     again explained: that he had been homeless for a period of time;
     that for the last twelve (12) months he shared a residence with
     his girlfriend; and that he could now make his monthly payments
     as he had found a job. In imposing its sentence the [c]ourt
     indicated that it: had reviewed the record in this matter; had
     reviewed the updated PSI; read and considered a letter submitted
     by [Appellant]; considered the comments of the probation officers

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       and counsel; and considered the sentencing options available to it
       under the laws of the Commonwealth. The [c]ourt found that
       [Appellant] had violated virtually every condition of his probation
       and resentenced him to: pay the costs of prosecution; pay
       restitution totaling $11,500; and to serve a period of incarceration
       of forty-two (42) to eighty-four (84) months incarceration.
       [Appellant] was found to be RRRI eligible with an RRRI sentence
       of thirty-five (35) months.

              [Appellant] filed a Motion for Sentence Modification that was
       denied on August 7, 2018. [Appellant] filed a timely appeal and
       filed a Concise Statement of Matters Complained of on Appeal
       (Concise Statement) pursuant to Pennsylvania Rule of Appellate
       Procedure 1925(b) as Ordered by this [c]ourt. In his Concise
       Statement [Appellant] raises the sole allegations of error that the
       [c]ourt abused its discretion in sentencing him to a period of total
       confinement without considering his circumstances.

Trial Court Opinion, 10/8/18 at 1-3 (internal citations omitted).

       Appellant presents the following issue for our review:       “Whether the

Sentencing Court manifestly abused its discretion, hence violating the

mandates of the Pennsylvania Sentencing Code, when its sentence far

exceeded the reasons for which Appellant violated his probation?” Appellant’s

Brief at 5.

       Appellant’s issue challenges the discretionary aspects of his sentence.1

We note that “[t]he right to appellate review of the discretionary aspects of a

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary


____________________________________________


1 In Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013)
(en banc), this Court held that our “scope of review in an appeal from a
revocation sentencing includes discretionary sentencing challenges.” Thus,
there is no impediment to our review.

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aspects of a sentence, the appeal should be considered a petition for allowance

of appeal.   Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.

2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

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

                   [W]e 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. [708]; (3) whether 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)). The determination of whether there is a substantial question is made

on a case-by-case basis, and this Court will grant the appeal 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.   Commonwealth v. Sierra, 752 A.2d 910, 912–913 (Pa. Super.

2000).

      Herein, the first three requirements of the four-part test are met:

Appellant brought a timely appeal, raised the challenge in a post-sentence

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motion, and included in his appellate brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

      “We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.”            Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). In his Pa.R.A.P. 2119(f) statement,

Appellant asserts that the trial court violated the sentencing code by

sentencing Appellant to the maximum allowable sentence for a felony of the

third degree. Appellant’s Brief at 10. Specifically, Appellant argues that in

sentencing    Appellant,    the    trial   court    failed   to   consider   Appellant’s

rehabilitative needs.      Id.    Appellant further maintains that “[t]he [c]ourt

brushed over the dire financial situation that Appellant found himself in and in

essence, sentenced him to a harsh sentence for being unable to pay his costs,

fines and restitution.” Id.

      The imposition of a sentence of total confinement after revocation of

probation for a technical violation, and not a new criminal offense, implicates

the “fundamental norms which underlie the sentencing process.” Sierra, 752

A.2d at 913.    Thus, “[o]n appeal from a revocation proceeding, we find a

substantial question is presented when a sentence of total confinement, in

excess of the original sentence, is imposed as a result of a technical violation


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of parole or probation.” Id. Thus, we shall consider the merits of Appellant’s

claim.

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

See Cartrette, 83 A.3d at 1033–1035 (explaining that notwithstanding prior

decisions, which stated our scope of review in revocation proceedings is

limited to the validity of the proceedings and legality of sentence, this Court’s

scope of review on appeal from revocation sentencing can also include

discretionary sentencing challenges).       “[T]he 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.” Commonwealth v. MacGregor, 912 A.2d

315, 317 (Pa. Super. 2006).

      Additionally, upon sentencing following a 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. Commonwealth v. Fish,

752 A.2d 921, 923 (Pa. Super. 2000); 42 Pa.C.S. § 9771(b). Once probation

has been revoked, a sentence of total confinement may be imposed if any of

the following conditions exist:    “(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


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sentence is essential to vindicate the authority of the court.”     42 Pa.C.S.

§ 9771(c)(1-3); Fish, 752 A.2d at 923.

     Furthermore, because sentencing guidelines do not apply to sentences

imposed following a revocation of probation, we are guided by the provisions

of 42 Pa.C.S. § 9721, which state the general standards that a court is to

apply in sentencing a defendant. Commonwealth v. Ferguson, 893 A.2d

735, 739 (Pa. Super. 2006).

           When imposing a sentence, the sentencing court must
     consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
     protection of the public, gravity of offense in relation to impact on
     victim and community, and rehabilitative needs of defendant, and
     it must impose an individualized sentence. The sentence should
     be based on the minimum confinement consistent with the gravity
     of the offense, the need for public protection, and the defendant’s
     needs for rehabilitation.

Id. Moreover, this Court has explained that when the “sentencing court had

the benefit of a presentence investigation report (‘PSI’), we can assume the

sentencing court ‘was aware of relevant information regarding defendant’s

character and weighed those considerations along with mitigating statutory

factors.’” Moury, 992 A.2d at 171.

     The trial court considered Appellant’s situation in resentencing him and

provided the following reasons for imposing Appellant’s sentence:

           I have taken into consideration your revised presentence
     report as well as the letter you wrote to the court, comments of
     the probation office and counsel. Bottom line is you violated
     virtually every aspect of your supervision. I have reviewed not
     only your presentence report but the options of sentencing as
     contained in Title 18 and Title 42, and I resentence you as follows.


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            To the case at 2208-2012 count one, you’re sentenced to
      pay the costs of prosecution, $500 to the use of Cambria County,
      $200 special admin fee, direct restitution of $6,806 to Decker
      Diamond Jewelers, subrogated restitution of $4,694 to Jewelers
      Mutual Insurance, and serve no less than 42 months nor more
      than 84 months state correctional institute. I note according to
      the PSI you are RRRI eligible, and your RRRI is 35 months.

N.T., 7/19/18, at 4-5.

      Further, the trial court stated the following in its Pa.R.A.P. 1925(a)

opinion:

             Here, [Appellant] was initially sentenced to a period of
      probation and required to pay restitution following his nolo plea.
      After his failure to comply with virtually all the terms of his
      probation in any meaningful way for nearly five years, he was
      resentenced to a period of incarceration of forty-two (42) to
      eighty-four (84) months with credit for time served and was found
      RRRI eligible with an RRRI sentence of thirty-five (35) months.
      [Appellant’s] sentence was based upon the [c]ourt’s review of:
      the circumstances of the case; an updated PSI; testimony
      presented at the June 21st and July 19th hearings by probation
      officers and [Appellant]; a letter submitted to the [c]ourt by
      [Appellant] detailing his circumstances since his original
      sentencing; arguments of counsel; and the laws of the
      Commonwealth. The record reflects that the [c]ourt took into
      consideration all these factors most notably [Appellant’s] failure
      to comply with essentially all the terms of his probation, including
      his failure: to maintain regular contact with his probation officer;
      to update his address, and to make payments, in determining that
      a sentence of incarceration was necessary to vindicate the
      [c]ourt’s authority. The record thus reflects that [c]ourts’ careful
      consideration of [Appellant’s] circumstances in combination with
      all other relevant factors in reaching its sentence.

Trial Court Opinion, 10/8/18, at 7-8 (internal citations omitted).

      The trial court acted with considerable leniency in originally sentencing

Appellant to probation. This sentence was significantly below statutory limits.

See 18 Pa.C.S. § 1103(3) (a person who has been convicted of a felony of the

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third degree may be sentenced to imprisonment “for a term which shall be

fixed by the court at not more than seven years”). After receiving his original

probationary sentence, however, Appellant completely failed to comply with

the provisions of his sentence. At the hearing on the probation bench warrant,

the probation department provided the following information:

        It is a felony three retail theft charge in which [Appellant] was
        placed on 84 months of state probation on November 12, 2013.
        The state, however, did not accept this case. At the time that
        they were trying to meet with [Appellant], he was unavailable.
        They weren’t able to speak to him. His whereabouts had been
        unknown. We had an address in Pittsburgh. We had an address
        in Latrobe. Letters were sent to both addresses for him to appear
        for office appointments with Cambria County Probation. He failed
        to appear or respond to either of those letters. He is delinquent
        on his payments.

N.T., 6/21/18, at 2.

        At the resentencing on the probation violation, the probation officer

testified that Appellant failed to report for supervision after being sentenced.

N.T., 7/19/18, at 2. The probation officer explained that there was not an

indication of probation violation until June 20, 2017, because: “It took –-- it

would have taken them that long to accept supervision or look for him[.]” Id.

at 3.

        Accordingly, the record supports the conclusion that Appellant failed to

comply in any manner with the terms of his probation. Thus, we conclude

that a sentence of total incarceration was “essential to vindicate the authority

of the court.” 42 Pa.C.S. § 9771(c)(3). See Commonwealth v. Malovich,

903 A.2d 1247, 1254 (Pa. Super. 2006) (where defendant failed to respond

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to the court’s authority and comply with judicial efforts such as drug treatment

and probation requirements, total confinement was necessary to vindicate the

court’s authority).

      However, while we agree that a term of total incarceration upon

probation revocation was appropriate given these circumstances, we are

constrained to conclude that a sentence of three and one-half to seven years

of imprisonment was an abuse of discretion.         Here, Appellant committed

technical violations of his probation, a term of probation that stemmed from

Appellant’s one and only conviction which resulted from a plea of nolo

contendere    to   a   non-violent   crime.    As   this   Court   explained   in

Commonwealth v. Parlante, 823 A.2d 927, 931 (Pa. Super. 2003):

             We agree with the trial court that Parlante should serve time
      in prison because of her prior criminal record and repeated
      inability to comply with the rules and requirements of her
      probation. . . . Four to eight years in prison, however, is a
      manifestly unreasonable amount of time.              Parlante never
      committed a violation crime, in fact, the majority of her probation
      violations were technical. Moreover, the trial court failed to
      consider these and most other relevant factors and supply
      adequate reasons for sentencing Parlante to a substantial term of
      confinement.

Id. at 931.

      We find Parlante to be instructive in the case before us. Considering

the nature of Appellant’s probation violations, his underlying non-violent

conviction, the lack of criminal history, and the mitigating factors Appellant

presented to the trial court, we conclude that the sentence of forty-two to

eighty-four months of imprisonment “is a manifestly unreasonable amount of

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time.” Id. at 931. Furthermore, the sentence is not based on the minimum

confinement consistent with the gravity of the offense, the need for public

protection, and Appellant’s needs for rehabilitation, in violation of Section

9721(b). Ferguson, 893 A.2d at 739. Thus, we are constrained to conclude

that the trial court abused its discretion in sentencing Appellant to such a

substantial term of confinement.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2019




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