J-A23031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JAMAL EDWARD TOMPKINS,                  :
                                         :
                   Appellant             :        No. 680 WDA 2018

            Appeal from the Judgment of Sentence April 4, 2018
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0010178-2011

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 29, 2019

      Jamal Edward Tompkins (“Tompkins”) appeals from the judgment of

sentence entered following the revocation of his probation. We reverse the

judgment of sentence and remand for further proceedings.

      The trial court summarized the history underlying the instant appeal as

follows:

            On September 10, 2011, [Tompkins,] age 21, was
      accompanied by two juvenile males and two juvenile females, in
      a vacant Baldwin Borough apartment building. One of the females
      was [a] Jane Doe juvenile, age 17 years, 10 months on that date,
      and the victim herein.

            The victim alleged that [Tompkins] engaged in non-
      consensual sexual intercourse with her. Her testimony was
      corroborated through DNA evidence of the victim and [Tompkins]
      located in the [a]partment.

            The incident resulted in nine (9) counts against [Tompkins],
      several of them first and second[-]degree felonies.           The
      Commonwealth moved to withdraw counts one through five, as
      well as counts seven and eight. [Tompkins] entered guilty pleas
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        to count six, sexual assault, a second[-]degree felony, and count
        nine, corruption of minors, a first[-]degree misdemeanor.[1]

              As to count six, the Commonwealth and defense had agreed
        upon a sentence[,] with the [c]ourt’s approval[,] of a year less a
        day to two years less two days [of] incarceration, followed by a
        period of probation, to be set by the [c]ourt[,] and a required sex
        offender registration. The [c]ourt advised [Tompkins] that the
        charges he had pled guilty to would have been punishable by five
        years in prison for count six[,] and five years in prison for count
        nine, respectively. [Tompkins] was also advised that he would
        have to register for Megan’s Law as a sex offender for life.

               [Tompkins was credited for time served (seventeen months)
        and a detainer.] [Tompkins] was to continue his incarceration
        until March 26, 2013, when he would be paroled, and to undergo
        a period of five years [of] probation, and on count nine[,] he was
        given a determination of guilty without further sentencing.

               By August 5, 2015, evidence was presented that [Tompkins]
        was an absconder, had two new counts of [] gun charges, and
        failed to register under Megan’s Law. He was on detainer. Th[e]
        [c]ourt had a hearing[,] in an effort to find him an address where
        he could be located for compliance purposes with his probation[,]
        and in order to lift the detainer.

               A Gagnon I[2] [v]iolation [h]earing was held [on] the
        following February 3, 2016. [Tompkins] had been detained once
        again and [had] no verifiable address, but was accepted into the
        [Justice Related Services (“JRS”)] program to live at Steadfast,
        [and] warned to comply with all the terms of probation, which he
        understood.     Defense counsel reminded th[e] [c]ourt that
        [Tompkins] would have financial difficulties paying for all of the
        fees, rent, food, electronic monitoring, sex offender treatment,
        mental health treatment and drug and alcohol treatment. Th[e]
        [c]ourt recognized that there is a difficulty with compliance, but
____________________________________________


1   See 18 Pa.C.S.A. §§ 3124.1, 6301.
2
 See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (holding that due process
requires that a probationer be given a preliminary (Gagnon I) and final
(Gagnon II) hearing prior to revoking probation).


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     that [Tompkins,] at this point[,] needed to stand up and take
     responsibility. He was to be electronically monitored for six
     months.

            A Gagnon II [v]iolation [h]earing was held before th[e]
     [c]ourt eleven months later[,] on March 1, 2017. [Tompkins] had
     been released from electronic monitoring on April 20, 2016[,] due
     to his compliance with probation requirements.          However,
     [Tompkins] moved to his [g]randmother’s home due to recurrence
     of financial problems. He had stopped reporting to his probation
     officer after July 1, 2016. He was also found to have changed his
     address to transient[,] without notifying his probation officer[,]
     and when his [g]randmother was questioned about his
     whereabouts, she had not seen him for a few days. [Tompkins]
     could not be found at an address he’d left on the Megan’s Law
     website[,] and failed to respond to instructions to report to or
     contact the probation office. He had been discharged from his
     behavioral and drug and alcohol programs.

           Probation warrants were issued ….             [Tompkins’s]
     [p]robation [o]fficer recommended that his probation be revoked.
     [Tompkins’s] location was unknown for many months after his last
     contact on July 1, 2015.

            … [The trial court] imposed revocation, but allowed
     [Tompkins] 9 to 18 months [on] parole to [JRS’s] Hollywood Show
     Bar, to pay rent and find employment. He was given a new term
     of five years [of] probation, effective March 1, 2017.

          However, [Tompkins] was evicted from [JRS’s] housing for
     non-payment of rent, then, bouncing around, chronically
     homeless.

Trial Court Opinion, 1/22/19, at 3-7 (footnotes added).

     In January 2018, Tompkins’s probation officer reported that Tompkins

had incurred two charges for failing to comply with his registration

requirements.   On March 21, 2018, in an addendum to the January 2018

report, Tompkins’s probation officer noted that these charges were withdrawn.




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      On April 4, 2018, after a Gagnon I probation violation hearing, the trial

court found Tompkins to be in violation of the terms of his probation. The trial

court revoked Tompkins’s probation and resentenced him to five to ten years

in prison. Tompkins filed a post-sentence Motion, which the trial court denied.

Thereafter, Tompkins timely filed a Notice of Appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

      Tompkins presents the following claim for our review:

      In revoking [] Tompkins’[s] probation based solely on technical
      violations[,] and re-sentencing him to 5-10 years’ total state
      confinement, whether the trial court abused its discretion by
      failing to consider [] Tompkins’[s] rehabilitative needs and the
      needs of the community, as required by 42 Pa.C.S.A. § 9721(b)?

Brief for Appellant at 5.

      The “[r]evocation 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. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007).

      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 Commonwealth v. Cartrette, 83 A.3d 1030, 1033-35 (explaining that

notwithstanding prior decisions, this Court’s scope of review on appeal from

revocation sentencing can also include discretionary sentencing challenges).


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     Tompkins challenges the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011).

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

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015) (citation

omitted).

     Here, Tompkins timely filed his Notice of Appeal, and preserved his claim

in a post-sentence Motion. Tompkins’s appellate brief includes a Statement

of Reasons relied upon for allowance of appeal, with respect to the

discretionary aspects of his sentence, as required by Pa.R.A.P. 2119(f). See

Brief for Appellant at 19-26.   We therefore proceed to ascertain whether

Tompkins’s claim presents a substantial question.

     “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa. Super. 2011). “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


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(2) contrary to the fundamental norms which underlie the sentencing

process.” Id. (internal citations omitted).

      Tompkins asserts that at sentencing, the trial court failed to consider his

rehabilitative needs, character and personal history, in violation of 42

Pa.C.S.A. § 9721(b), when imposing its sentence. Brief for Appellant at 24.

According to Tompkins, at the sentencing hearing, the trial court read a

summary of two purported presentencing reports, which did not indicate what

technical violations Tompkins had committed. Id. at 21-22. At the hearing,

Tompkins’s counsel pointed out that Tompkins’s violations were not willful or

flagrant. Id. at 22. Rather, they were the result of Tompkins’s periods of

homelessness. Id. Tompkins argues that the trial court improperly failed to

consider his rehabilitative needs, mitigating evidence, and the needs of the

community. Id. at 23-24.

      Tompkins’s claim raises a substantial question that his sentence was

inconsistent with a specific provision of the Sentencing Code.              See

Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016) (concluding

that a appellant’s claim that the trial court failed to consider the factors set

forth at 42 Pa.C.S.A. § 9721(b) raises a substantial question). Accordingly,

we will address Tompkins’s substantive claim.

      Tompkins argues that the trial court abused its discretion in sentencing

him to 5-10 years of total state confinement, without first considering his

rehabilitative needs, mitigating evidence, and the needs of the community.


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Brief for Appellant at 27. Although the trial court stated that Tompkins was

“totally in technical noncompliance[,]” the trial court ignored evidence where

he had demonstrated compliance with the terms of his probation.             Id.

Tompkins points out that at the March 1, 2017, probation violation hearing,

the probation officer testified that Tompkins had been released from electronic

monitoring “due to his compliance[.]”      Id.   Further, the probation officer

stated that Tompkins had done well when he stayed at Steadfast House. Id.

      Tompkins also argues that his counsel presented mitigating evidence

demonstrating that Tompkins had not willfully or flagrantly violated the terms

of his probation. Id. at 28. According to Tompkins, his counsel presented

evidence that Tompkins (1) has a history of mental illness and homelessness;

(2) suffers from attention deficit hyperactivity disorder, anxiety, depression,

and insomnia; (3) had not willfully failed to attend sex offender treatment

“but, rather, [his residence at the time] was just very far away from the

treatment program,” see id.; (4) was evicted from Farkas House because of

his financial situation; and (5) immediately turned himself in upon realizing

that he had missed an appointment at the probation office.             See id.

Nevertheless, Tompkins asserts, the trial court failed to consider this evidence

or his rehabilitative needs on the record, in fashioning his sentence. Id. at

29.

      Tompkins also directs our attention to this Court’s decision in

Commonwealth v. Matthews, 486 A.2d 495 (Pa. Super. 1984).                    In


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Matthews, the defendant was convicted of receiving stolen property while on

probation for another offense. Id. at 496. The defendant argued that the

trial court failed to state, on the record, its reasons for resentencing him to a

term of total confinement. Id. at 497. This Court explained that,

      [w]hen a trial court imposes sentence following revocation of
      probation, it must state its reasons on the record. The reasons
      stated should reflect the court’s consideration of the criteria of the
      Sentencing Code, 42 Pa.C.S.[A.] § 9701 et seq., the
      circumstances of the offense, and the character of the offender.
      Although the sentencing court need not list and address each of
      the criteria of the Sentencing Code, the record must reflect
      that the criteria were considered.

Matthews, 486 A.2d at 497 (emphasis added).

      In reviewing Tompkins’s claim, we are cognizant that the Sentencing

Code grants the trial court the authority to “revoke an order of probation upon

proof of the violation of specified conditions of the probation.” 42 Pa.C.S.A.

§ 9771(b). When revocation occurs, “the sentencing alternatives available to

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

Id. Nonetheless, the court may not impose a sentence of 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 (3) such a sentence is essential to vindicate

the authority of the court. Id. § 9771(c).

      In resentencing a defendant, section 9721(b) of the Sentencing Code

provides that




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      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.

42 Pa.C.S.A. § 9721(b). Further, “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.

      Our review discloses no evidence that Tompkins had committed

additional crimes since his last probation hearing, or that Tompkins was likely

to commit another crime if the trial court failed to impose a lengthy term of

total confinement. Rather, the record reflects that Tompkins committed only

technical violations of his probation, which were the result of his transient

status and financial disadvantage. See N.T., 4/4/18, at 4.

      Further, there is nothing of record indicating that the trial court

considered the criteria set forth at section 9721(b) when it resentenced

Tompkins. Rather, the trial court addressed Tompkins, stating that

      the impact that you’ve had on the victims in this case is hard to
      imagine. You have been removed from electronic monitoring. You
      failed. You’ve given us bad addresses. You’ve been discharged
      from sex offender treatment and from JRS.

      You have a prior robbery with a gun. You have prior thefts and
      drugs. You’re totally in technical noncompliance; and you have
      no family support, apparently, available to you. For all of these
      reasons, I feel that you are no longer a candidate for [c]ounty
      supervision.

N.T., 4/4/18, at 4. Because the trial court failed to consider and state, on the

record, its consideration of the factors set forth at 42 Pa.C.S.A. § 9721(b) and

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9771(c), we agree with Tompkins’s assessment that the trial court abused its

discretion in resentencing him to total confinement of 5-10 years in prison.3

       Consequently, we reverse Tompkins’s judgment of sentence, and

remand for a new resentencing hearing, so that the trial court may properly

consider the factors set forth at 42 Pa.C.S.A. § 9721(b) in resentencing

Tompkins.

       Judgment of sentence reversed. Case remanded for further proceedings

consistent with this Memorandum. Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2019




____________________________________________


3 Further, the record reflects no evidence that (1) Tompkins was convicted of
another crime, (2) Tompkins’s conduct makes 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). Thus, the
prerequisites to a sentence of total confinement have not been met. See
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)
(recognizing that consideration of the appropriateness of a sentence of total
confinement, upon the revocation of probation, must be examined in light of
42 Pa.C.S.A. § 9771(c)).

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