J-S55028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                              Appellee

                        v.

    TIMOTHY HANNIBAL

                              Appellant                 No. 3832 EDA 2017


      Appeal from the Judgment of Sentence imposed September 16, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0006810-2014


BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                           FILED OCTOBER 22, 2018

        Appellant Timothy Hannibal appeals from his judgment of sentence of

1½—7 years’ imprisonment for possession with intent to deliver a controlled

substance (“PWID”).1 Appellant argues, inter alia, that the trial court erred in

determining that he was not eligible for the Recidivism Risk Reduction

Incentive    (“RRRI”)2       program without   requesting   the   Commonwealth’s

position. We affirm.

        The trial court summarized the history of this case as follows:

        On December 21, 2014, [Appellant] pleaded guilty to one count
        of [PWID] (crack cocaine) . . . On that date, the Court imposed
        the negotiated sentence of time in to twenty-three months’

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1   35 P.S. § 780-113(a)(30).

2   61 P.S. §§ 4501-4512.
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       incarceration, to be followed by a two-year period of reporting
       probation. [Appellant] was immediately paroled.

       Once released, [Appellant] never reported for supervision. On
       March 26, 2015, [Appellant] appeared before the Court for a
       hearing regarding the alleged violation of the terms of his parole
       (“VOP”). At that time, the Court revoked [his] parole and
       sentenced him to back-time. [He] was re-paroled on September
       17, 2015. Shortly thereafter, [he] once again absconded from
       supervision, and an absconder warrant was subsequently issued
       on October 28, 2015. His whereabouts were unknown to the
       Probation and Parole Department until November 28, 2015, when
       he was arrested for aggravated assault (18 Pa.C.S. § 2702(a))
       and related offenses. [He] was ultimately acquitted of these
       charges. However, at [his] second VOP hearing on March 11,
       2016, the Court revoked [his] parole as a result of [his] second
       episode of absconding, and again sentenced him to back-time.
       The Court warned [him] that if he absconded again, the Court
       would likely impose a state sentence.

       On July 11, 2016, [Appellant] was re-paroled. Once more, [he]
       absconded from supervision. On September 16, 2016, at [his]
       third VOP hearing, the Court terminated [his] parole, revoked his
       probation, and resentenced him to 1½ to 7 years’ incarceration.
       [Appellant] filed a Petition to Vacate and Reconsider VOP Sentence
       on September 22, 2016, which the Court denied on September
       30, 2016.

       On March 31, 2017, [Appellant] filed a pro se petition under the
       Post Conviction Relief Act (“PCRA”) seeking reinstatement of his
       appellate rights. Raymond D. Roberts, Esquire was appointed to
       represent [Appellant] on April 6, 2017, and filed an Amended
       Petition on April 12, 2017. On November 27, 2017, the Court
       entered an order granting [Appellant]’s PCRA petition and
       reinstated [his] right to file a direct appeal.3

Trial Court Opinion, 2/26/18, at 1-2.

       Appellant raises the following issues in this appeal:


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3 Appellant filed a notice of appeal on November 28, 2017, one day after the
trial court reinstated his direct appeal rights.

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      [1]. Whether the trial court erred in summarily concluding
      Appellant, without input from the prosecution, was ineligible for
      RRRI. The applicable statute allows the prosecution to waive any
      objection to RRI eligibility.

      [2]. Whether the trial court erred in sentencing Appellant to a
      sentence of total confinement where his only violation was a
      failure to report and he was presented with documents by the
      Philadelphia Prison Systems which indicated that he need not
      report. At the time of the technical violation, Appellant was
      employed and had rehabilitated himself. He did himself what
      probation was designed to do.         Therefore, according to
      Commonwealth v. Cottle, he should not have been sentenced
      to a sentence of total confinement.

      [3]. Whether the trial court erred in sentencing Appellant to a
      sentence of total confinement based wholly or partially on having
      advised him at a previous proceeding that he would receive a state
      sentence if he violated again.

      [4]. Whether Pennsylvania law bars the imposition of a prison
      sentence for technical violations absent a finding that the conduct
      of the defendant indicates he is likely to commit another crime if
      not incarcerated, or that the sentence imposed is essential to
      vindicate the authority of the court. 42 Pa.C.S.[A.] § 9771.
      Section 9771 requires that the trial court follow the 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.”
      The sentence imposed was excessive in that it far exceeded what
      was required to protect the public and was well beyond what was
      necessary to foster the defendant's rehabilitation for such a
      technical violation.

Appellant’s Brief at 6.

      Appellant first argues that the trial court erred by failing to obtain the

Commonwealth’s position concerning whether he was RRRI-eligible.             This

argument lacks merit.




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      The RRRI Act offers eligible offenders the ability to reduce their

minimum sentence by participating “in evidence–based programs that reduce

the risks of future crime.” 61 Pa.C.S.A. §§ 4502, 4505-06. When sentencing

an offender, the court must “make a determination whether the defendant is

an eligible offender.” 61 Pa.C.S.A. § 4505(a). If the court determines that

the offender is RRRI eligible, the court imposes sentence and then reduces the

minimum sentence to the RRRI minimum sentence. 61 Pa.C.S.A. § 4505(c)

(outlining RRRI sentencing process).

      If the court concludes that the offender is not RRRI-eligible, “[t]he

prosecuting attorney, in the prosecuting attorney’s sole discretion, may

advise the court that the Commonwealth has elected to waive the eligibility

requirements.”   61 Pa.C.S.A. § 4505(b) (emphasis added).         To waive the

eligibility requirements, the Commonwealth must notify the victim of the

intent to waive the eligibility requirements, and the court must give the victim

“an opportunity to be heard on the issue.” Id. “The court, after considering

victim input, may refuse to accept the prosecuting attorney’s waiver of the

eligibility requirements.” Id.

      In this case, the trial court concluded that Appellant was not RRRI-

eligible due to a prior robbery conviction. Before making this determination,

the trial court asked to the prosecutor and probation officer the following:

      THE COURT: Would you like to be heard, Ms. Watson-Stokes?

      [THE COMMONWEALTH]: No, Your Honor, I think—


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      THE COURT: Okay, Officer, you have any input . . .?

      PROBATION OFFICER: No, Sir. . .

N.T., 9/16/16, at 10.

      The trial court correctly determined that Appellant’s robbery conviction

rendered him ineligible for the RRRI program.      See 61 Pa.C.S.A. § 4503

(defining “eligible offender” for RRRI program as defendant who has not been

convicted of a personal injury crime as defined under the Crime Victims Act,

18 P.S. § 11.103); see also 18 Pa.C.S.A. § 11.103 (defining robbery as a

personal injury crime).

      Appellant complains that the trial court asked the prosecutor whether

she wished to waive RRRI eligibility requirements but cut her off before she

could complete her answer. The trial court had no duty to ask the prosecutor

about this subject and give the prosecutor adequate opportunity to respond.

The RRRI Act gives the prosecutor “sole discretion” to advise the court that

she desires to waive the eligibility requirements. 61 Pa.C.S.A. § 4505(b). The

RRRI Act does not require the court to ask the prosecutor whether she wants

to waive these requirements.

      Further, the record demonstrates that the prosecutor elected not to

waive the eligibility requirements.   The court asked the prosecutor for her

position concerning waiver, more than the trial court was required to do under

the law.   The prosecutor answered: “No, your Honor.         I think—“    Her

statement, “no, your Honor,” indicates that she did not waive the eligibility


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requirements. The fact that the trial court moved on after she said “I think”

does not demonstrate that the court prevented her from waiving the

requirements. She already had stated that she was not waiving them—and

had she wanted to change her decision, she could easily have done so before

the hearing concluded. In her sole discretion, she did not change her decision.

No relief is due.

      In his second through fourth arguments, which Appellant raises in a

single section of his brief, Appellant contends that (1) his sentence to 1½—7

years’ imprisonment for a technical violation of probation (absconding from

parole supervision) is manifestly excessive and too severe, (2) the

Philadelphia Prison System gave him documents which indicated that he need

not report, and (3) the trial court abused its discretion by imposing a prison

sentence based on having advised Appellant at a previous proceeding that he

would receive a state sentence if he violated again.        We review these

arguments together.

      These arguments challenge the discretionary aspects of Appellant’s

sentence.     “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017). Before we can reach the merits of such

challenges,

      [w]e conduct a four part analysis to determine: (1) whether
      [A]ppellant 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

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      [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, 42 Pa.C.S.A. § 9781(b).

Id. at 815–16. Here, Appellant filed a timely notice of appeal one day after

the trial court reinstated his direct appeal rights, preserved his challenge to

the length of his sentence in post-sentence motions, and included a statement

in his brief in compliance with Pa.R.A.P. 2119(f).         Therefore, we must

determine whether Appellant has presented a substantial question that his

sentence is not appropriate under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Caldwell, 117 A.3d

763, 768 (Pa. Super. 2015) (en banc).           On appeal from a revocation

proceeding, a substantial question arises when the trial court imposes a

sentence of total confinement in excess of the original sentence due to a

technical parole violation. Commonwealth v. Sierra, 752 A.2d 910, 913

(Pa. Super. 2000).    Therefore, we will consider the merits of Appellant’s

argument.

      “In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court’s decision under an abuse of discretion standard.”

Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011). Further,

“this Court’s review of the discretionary aspects of a sentence is confined by

the   statutory   mandates    of   42    Pa.C.S.[A.]   §   9781(c)   and   (d).”




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Commonwealth v. Macias, 968 A.2d 773, 776–77 (Pa. Super. 2009).

Section 9781(c) directs:

      The appellate court shall vacate the sentence and remand the case
      to the sentencing court with instructions if it finds:

            (1) the sentencing court purported to sentence within
            the sentencing guidelines but applied the guidelines
            erroneously;

            (2) the sentencing court sentenced within the
            sentencing guidelines but the case involves
            circumstances where the application of the guidelines
            would be clearly unreasonable; or

            (3) the sentencing court sentenced outside the
            sentencing   guidelines and  the  sentence   is
            unreasonable.

      In all other cases the appellate court shall affirm the sentence
      imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

      Section 9781(d) directs that the appellate court, in reviewing the record,

shall have regard for:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).




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      In its opinion, the trial court rejected Appellant’s argument that his

sentence was excessive and that prison officials led him to believe that he did

not need to report to his probation officer, reasoning as follows:

      Total confinement is appropriate to vindicate the court’s authority
      for technical violations that are “flagrant and indicate an inability
      to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.
      Super. 2007); see Commonwealth v. Ortega, 995 A.2d 879,
      884 (Pa. Super. 2010).         For instance, the Superior Court
      determined it was proper for a trial court to impose total
      confinement after the defendant absconded at the outset of his
      probationary period and remained delinquent for three years.
      Ortega, 995 A.2d at 884 (Pa. Super. 2010).

      Here, it is true that [Appellant]’s only violation was absconding
      from supervision. N.T. 9/16/16 at 5. However, [Appellant] had a
      history of absconding, having done so twice before his most recent
      violation. N.T. 9/16/16 at 4-5. The first instance was at the very
      outset of his parole, following his release from custody in
      December 2014. [Appellant]’s conduct demonstrated a complete
      inability to comply with the terms of parole, and a flagrant
      disregard of the authority of the Court. It was therefore proper
      for the Court to find a sentence of total confinement necessary in
      order to vindicate the authority of the Court. See Ortega, 995
      A.2d at 884.

      Furthermore, the record refutes [Appellant]’s claim that he did not
      know he was still under supervision.          At the VOP hearing,
      [Appellant] told the Court that his social worker in prison gave him
      prison release data that led him to believe that he had maxed out
      on his sentence with no term of further supervision. N.T. 9/16/16
      at 12. At that time, [Appellant] had not maxed out on his prison
      sentence, nor even commenced to serve the probationary term of
      his sentence. See N.T. 9/16/16 at 8. Moreover, [Appellant]’s
      parole officer, Chadd Davis, explained to the Court that two
      notices were sent to [Appellant], the first informing him that he
      was to report and the second warning him that his failure to report
      would result in a warrant for his arrest. N.T. 9/16/16 at 5. Officer
      Davis confirmed that the letters were sent to [Appellant]’s correct
      address. N.T. 9/16/16 at 12-13. Accordingly, [Appellant] had no
      excuse for absconding a third time. No relief is due.


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Trial Court Opinion, 2/26/18, at 6-7. We agree with this analysis.

      Appellant relies on Commonwealth v. Cottle, 426 A.2d 598 (Pa.

1981), for the proposition that his sentence of imprisonment for a technical

violation of probation is excessive. Cottle is distinguishable. There, the trial

court imposed the maximum possible sentence (2½—5 years’ imprisonment)

due to the defendant’s failure to report to his probation officer. The defendant,

however, had reported to his probation officer for three years before failing to

report, and the probation department recommended discharge because the

defendant “pursued an effective program of alcoholic rehabilitation and

secured permanent employment.” Id. at 599. Our Supreme Court held that

this sentence was excessive, because the defendant had readjusted to life in

society, and while his failure to report “offend[ed] the dignity of the court,” a

maximum sentence was not “essential to vindicate the authority of the court.”

Id. at 601-02.

      Here, in contrast, Appellant absconded from parole not once but three

times, and on each occasion, he immediately absconded upon his release from

incarceration. A sentence of imprisonment was reasonable to ensure that,

after thrice absconding from parole, Appellant would comply with the terms of

his supervision. In addition, unlike Cottle, the trial court did not impose the




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maximum possible sentence (10-20 years’ imprisonment).4             Instead, it set

Appellant’s minimum confinement to 1½ years to provide him an opportunity

for parole in less than two years. We conclude that this was a proper exercise

of the court’s discretion.

       Finally, Appellant      complains that      the   trial court imposed   total

confinement simply because it warned Appellant during a previous VOP

hearing that he would receive a state sentence if committed another violation.

We disagree. During Appellant’s second VOP hearing in March 2016, following

his second instance of absconding from supervision, the trial court told

Appellant that he would be sent to state prison if he absconded again. N.T.

9/16/16 at 8-9. But at the present sentencing hearing, the trial court did not

limit its focus to Appellant’s disregard for its warning. The court took multiple

other important factors into account in reaching its decision:

       THE COURT: . . . I gave you a chance last time, and I gave you a
       chance the first time. This is the third time, and you didn’t -- not
       only didn’t you meet me halfway, you didn’t even meet me ten
       percent of the way. So I’m going to take into account in
       determining an appropriate sentence, everything that was
       presented to me during a long and unfortunate history of this
       case, everything in the . . . summaries I’ve received, the
____________________________________________


4 The statutory maximum for distributing crack cocaine is ordinarily ten years.
35 P.S. § 780-113(f)(1.1). The maximum penalty doubles to twenty years for
any person having a prior PWID conviction at the time the offense was
committed. 35 P.S. § 780-115 (“any person convicted of a second or
subsequent offense [of PWID] may be imprisoned for a term up to twice the
term otherwise authorized. . .”). Appellant had been convicted of PWID in
1986, 1997, and 2000, see N.T. 12/10/14 at 29, and he committed the PWID
here at issue on May 24, 2014. Thus, his statutory maximum was twenty
years.

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      information that was presented during the sentencing hearing, the
      mitigating information that was presented to me by defense
      counsel. I’m going to go back and look at the original guidelines.
      I know since this is a violation of probation, they are not
      applicable, but they do give me some guidance. The original
      guideline range was 12 to 18 months, plus or minus three. I do
      understand this is not a violent crime. [Appellant] does, however,
      have a long history. He came in front of me as a five prior record
      score. And by continuing to abscond from probation three times,
      there’s absolutely no reason that I have to think that you would
      do anything other than abscond again if I were to place you on
      county time. So what I’m going to do is, I’m going to give you a
      state sentence. That will be a guideline sentence. I’m not going
      to give you a probation tail, because I want the state to see if they
      can do a better job supervising you. So for that reason, on the
      charge of possession with the intent to deliver, I’m going to
      sentence you to one and a half to seven years in state prison.

Id. at 13-15. Thus, the court carefully weighed “the history of the case, the

information contained in the Probation Department hearing summaries, the

information that was presented at [Appellant’s] sentencing hearing, all of the

mitigating   information   that   was    presented   by   defense   counsel,   and

[Appellant’s] criminal history.” Trial Ct. Op. at 7-8. The trial court properly

exercised its discretion in determining Appellant’s sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/18



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