J-A18037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
         v.                      :
                                 :
                                 :
    ANTHONY MICHAEL FLOWERS      :
                                 :
              Appellant          :             No. 35 WDA 2017

          Appeal from the Judgment of Sentence December 22, 2015
           In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0002589-2012


BEFORE:      BOWES, LAZARUS and OTT, JJ.

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 17, 2017

       Anthony Michael Flowers appeals, nunc pro tunc, from the judgment of

sentence imposed on December 22, 2015, in the Westmoreland County Court

of Common Pleas. The trial court sentenced Flowers to an aggregate term of

two and one-half to five years’ imprisonment and two years’ consecutive

probation, after the revocation of his sentence of intermediate punishment

imposed following Flowers’ guilty plea to charges of attempted rape, unlawful

restraint and simple assault (two counts).1 On appeal, Flowers contends the

court’s reasons for revoking his intermediate punishment sentence, as well as

the new sentence imposed, constitute cruel and unusual punishment, and,



____________________________________________


1 See 18 Pa.C.S. §§ 901/3121(a)(1), 2902(a)(1), and 2701(a)(1), (a)(3),
respectively.
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alternatively, argues the trial court abused its discretion in imposing the new

sentence. For the reasons below, we affirm.

       The facts underlying Flowers’ guilty plea are as follows.2 On June 25,

2012, at approximately 1:00 p.m., the victim was walking along the Five Star

Trail in Greensburg, Pennsylvania, when a man, later identified as Flowers,

approached her and asked if she had a cell phone. The victim replied in the

negative and continued walking. Thereafter, Flowers grabbed her hand and

“started dragging her off the trail to a gravel parking lot[.]”       Criminal

Complaint, 6/25/2012, Affidavit of Probable Cause at 1. The victim began

kicking and screaming, and briefly escaped Flowers’ grip. However, Flowers

then grabbed her leg and continued to try to drag her off the trail.        He

eventually let go, and asked the victim if she “wanted to have sex with [him].”

Id. When she replied no, Flowers asked her why. At that point, the victim

ran away. She later identified Flowers as her attacker.

       Flowers was charged with attempted rape, unlawful restraint, and two

counts of simple assault.        On November 1, 2012, pursuant to a defense

request, the trial court ordered Flowers to undergo a competency evaluation

at Torrence State Mental Hospital. He remained at the hospital until at least

early 2013. Thereafter, on November 21, 2013, Flowers entered a guilty plea

____________________________________________


2We note the transcript from the guilty plea hearing was not included in the
certified record. Therefore, we have gleaned these facts from the probable
cause affidavit attached to the criminal complaint. See Criminal Complaint,
6/25/2012, Affidavit of Probable Cause at 1.



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to all charges. His sentencing was deferred pending a SORNA3 assessment.4

Subsequently, on February 18, 2014, the trial court sentenced Flowers as

follows:   (1) on the count of attempted rape, a term of two years county

intermediate punishment with electronic home monitoring; and (2) on the

count of unlawful restraint, a term of two years consecutive probation.

Flowers was also required to continue sex offender treatment.     No further

punishment was imposed on the simple assault charges.5

       A bench warrant was issued for Flowers on June 10, 2014, asserting (1)

he was unsuccessfully discharged from his sex offender treatment program on

April 29, 2014; and (2) he had a “violent episode” on May 16, 2014, while on

electronic home monitoring, which resulted in “a 302 commitment.” 6      See

Order for Warrant of Arrest and To Detain, 6/10/2014. Flowers appeared for

a revocation hearing on June 24, 2014.

       At the hearing, the Commonwealth presented the testimony of Dawn

Smitley, Flowers’ therapist at the sex offender treatment center.    Smitley

testified that she met with Flowers three times per week for 30 days, from
____________________________________________


3 See Sexual Offenders Registration and Notification Act, 42 Pa.C.S. §§
9799.10-9799.41.

4 The trial court released Flowers on electronic home monitoring pending his
sentencing hearing. See Order, 11/21/2013.

5 It appears from the record that Flowers was not found to have met the
criteria for classification as a sexually violent predator under SORNA. See
Order, 2/18/2014. See also 42 Pa.C.S. § 9799.24 (Assessments).

6 See 50 P.S. § 7302 (providing for 120-hour involuntary commitment of
severely mentally disabled person in need of immediate treatment).

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March 27, 2014, until April 29, 2014. Smitley noted that while Flowers was

receptive to treatment, he was dismissed from the program because “his

mental health and low IQ prohibit [him] from learning abstract concepts.”

N.T., 6/24/2014, at 9. She explained:

      So he’s not able to process beyond I did this. And when it’s why
      did you do this, it’s I don’t know why I did that, I wasn’t thinking.
      He can’t process the abstract of I did this because there was a
      sexual[] motivation behind it or any of the other reasons that we
      might hear.

Id. Smitley conceded Flowers’ discharge was through no fault of his own,

stating “I believe he’s hindered by things that are – some of the things are

outside of his control, yes.” Id. at 13. Smitley further explained that due to

Flowers’ mental health issues, which include anger outbursts, he would better

benefit from “an in-patient setting where he has repetitive reinforcement of

concepts because he seems to learn better with repetition and reminders

regularly.” Id. at 9. However, she admitted she was not aware of a program

that could meet Flowers’ specific needs.         See id.     Similarly, Flowers’

Westmoreland County case manager, Nancy Packe, testified she was also

unaware of any inpatient or outpatient programs that could address Flowers’

issues. See id. at 18.

      With   regard   to   the   alleged   May   2014    violent   episode,   the

Commonwealth called Flowers’ county probation officer, Dawn Miletics.




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Miletics testified the incident was explained to her by Flowers’ mother as

follows:7

       She just said that the evening that it occurred that because he
       was not on his medication at the time, he became out of control.
       He threw an iron at this elderly uncle that lives with him, he got
       into a physical altercation with his younger brother who lives there
       where there was a broom involved with [Flowers] hitting him with
       the broom, and that they had to call the police on two occasions
       that evening. The second time [the police] finally took him away.

Id. at 21. Miletics further testified that Flowers was not charged with any

crimes as a result of the incident, and voluntarily submitted to his commitment

when he was taken to the hospital. See id. at 22.

       At the conclusion of the testimony, the trial court continued the detainer

so that defense counsel could determine if any outpatient programs were

available that could benefit Flowers. See id. at 26-27. Moreover, the court

specifically directed Miletics to speak with Flowers’ mother “and find out what

the circumstances are there, whether [Flowers] can be returned to the home

on electronic monitoring.” Id. at 26. In addition, the trial court vacated the

requirement that Flowers participate in sex offender treatment. See id. at

25.




____________________________________________


7 Miletics informed the trial court that Flowers’ mother told her she would be
present at the hearing. N.T., 6/24/2014, at 20-21. However, his mother
failed to appear. The trial court acknowledged that Milectis’s testimony did
not “rise to the level of evidence,” but the court considered it for “context.”
Id. at 21.

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       In February of 2015, Flowers was, once again, committed to Torrence

State Hospital for a forensic evaluation.        His 60-day commitment was

extended in March 2015, and again, in June 2015.

       On November 13, 2015, the trial court conducted a revocation/re-

sentencing hearing. During the hearing, the court recognized that Flowers

was wearing a yellow uniform, which indicated he had a discipline issue.

Flowers told the court that he had threatened to “slice [the] throat” of a deputy

warden in the jail. N.T., 11/13/2015, at 7. Moreover, he stated he was taking

his medication at the time of that incident.        See id. at 7-8.     Flowers’

caseworker, Packe, testified she had been unable to locate a supervised

“mental health placement” that would accept “a person who has to register

with Megan’s Law.” Id. at 10. Both Packe and Flowers’ counsel indicated the

difficulty in finding appropriate treatment for Flowers was a combination of his

conviction of sexual offenses and the lack of funding. See id. at 11-12.

       At the conclusion of the hearing, the trial court revoked Flowers’

sentence of intermediate punishment and re-sentenced him to an aggregate

term of two and one-half to five years’ imprisonment, followed by two years’

probation.8 The court also re-imposed the requirement that Flowers attend



____________________________________________


8 The court imposed the prison term for the charge of attempted rape, and
the probationary term for the charge of unlawful restraint. It merits mention
that the two and one-half year minimum sentence fell within the mitigated
range of the sentencing guidelines. See N.T., 11/13/2015, at 5.



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sex offender treatment.9           Flowers filed a timely post-sentence motion

asserting the trial court abused its discretion by (1) requiring him to “continue

with sex offender’s treatment when he already had been discharged through

no fault of his own[;]” and (2) sentencing him “to state prison when the only

credible admissible evidence presented to the Court in support of revocation”

was that he was discharged from sex offender treatment because he lacked

the mental capacity to benefit from it. Post Trial Motions, 11/23/2015, at ¶¶

11-12. As a result, Flowers argued his sentence constituted cruel and unusual

punishment under the Eighth Amendment. See U.S. Const. amend. VIII. By

order dated November 25, 2015, the trial court granted Flowers’ motion and

vacated his sentence. A re-sentencing hearing was scheduled for December

22, 2015.

       At the re-sentencing hearing, Miletics updated the trial court regarding

an incident involving Flowers in prison, namely, that on December 17, 2015,

Flowers punched another inmate in the face. Counsel attempted to mitigate

Flowers’ behavior by explaining he was provoked when the other inmate spit

____________________________________________


9  We note that, for reasons that do not appear in the record, Flowers’
revocation/re-sentencing hearing was reassigned to Judge Christopher
Feliciani, although President Judge Richard McCormick, Jr., had presided over
Flowers’ guilty plea and June 2014 detainer hearing. With regard to the
requirement that Flowers participate in sex offender treatment, counsel
informed Judge Feliciani that Flowers’ was unable to benefit due to his mental
health issues, but the judge stated “he’ll have to try again,” noting “[m]aybe
they have another program at SCI that can help with the sex offender
treatment.” Id. at 15.



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on him. See N.T., 12/22/2015, at 4-5. Counsel further informed the court

that Flowers’ parents “want him in treatment.” Id. at 6. Thereafter, the trial

court re-imposed        the   sentence     of two   and one-half to   five   years’

imprisonment, and a consecutive two years’ probation. However, the court

omitted the requirement that Flowers participate in sex offender treatment.10

        On December 31, 2015, Flowers filed another post-sentence motion

seeking reconsideration of his sentencing.           Specifically, he claimed his

sentence was violative of the Eighth Amendment because he was punished for

violating a condition it was impossible for him to fulfill. Further, he argued

the sentence of imprisonment was excessive and disproportionate to his

original sentence which included intermediate punishment and electronic

home monitoring. The court denied Flowers’ motion that same day. This nunc

pro tunc appeal followed.11




____________________________________________


10   The court also ordered Flowers receive 1091 days’ credit for time-served.

11 On February 18, 2016, the trial court ordered Flowers to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Flowers complied with the court’s directive, and filed a concise statement on
March 9, 2016.

       On December 2, 2016, a panel of this Court quashed Flowers’ appeal
because it was untimely filed. See Commonwealth v. Flowers, ___ A.3d
___ [165 WDA 2016] (Pa. Super. 2016). Indeed, counsel had filed the notice
of appeal one day late, on January 22, 2016. Thereafter, Flowers petitioned
the trial court for permission to appeal nunc pro tunc. The court granted the
motion on December 7, 2016, and this appeal follows.

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      In his first issue on appeal, Flowers argues the revocation of his

intermediate punishment sentence violated his constitutional right against

cruel and unusual punishments. See Flowers’ Brief at 12. He explains:

      The sentence from its outset imposed a condition of compliance
      which was not possible for Flowers to ever achieve despite his best
      efforts. The establishment of a sentencing condition that can
      never be fulfilled and which is neither possible nor within a
      defendant’s ability to satisfy is exacting a punishment which is in
      its very essence cruel.

Id. at 13. Flowers emphasizes he was discharged from sex offender treatment

not because he failed to participate, but rather, because he was “not

sufficiently intelligent to ‘benefit’ from the program.” Id. Accordingly, Flowers

insists he is entitled to reinstatement of a sentence of intermediate

punishment. See id. at 14.

      Pursuant to 42 Pa.C.S. § 9773, a trial court may “revoke a sentence of

county intermediate punishment upon proof of a violation of specific conditions

of the sentence.”     42 Pa.C.S. § 9773(b).       Furthermore, subsection (c)

mandates that before doing so, the trial court must conduct a hearing “at

which the court shall consider the record of the initial sentencing proceeding

as well as the conduct of the defendant while serving a sentence of county

intermediate punishment.” 42 Pa.C.S. § 9773(c).

      Here, Flowers argues the court’s revocation of his intermediate

punishment sentence constituted cruel and unusual punishment.          Both the

Eighth Amendment of the United States Constitution and Article 1, Section 13

of the Pennsylvania Constitution, forbid the imposition of “cruel and unusual

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punishments.” U.S. Const., amend. VIII; Pa. Const., Art. 1, Sec. 13. See

Commonwealth v. Spells, 612 A.2d 458, 461 (Pa. Super. 1992) (the

guarantee against cruel punishment in the state and federal constitutions is

coextensive), appeal dismissed as improvidently granted, 643 A.2d 1078 (Pa.

1994). This Court has explained that a punishment is cruel and unusual if it

is “wholly and irrationally disproportionate to the crime,” 12 or, in other words,

“so greatly disproportionate to an offense as to offend evolving standards of

decency or a balanced sense of justice.” Commonwealth v. Ehrsam, 512

A.2d 1199, 1210 (Pa. Super. 1986) (mandatory minimum five year sentence

for offenses committed with firearm did not violate Eighth Amendment),

appeal denied, 527 A.2d 535 (Pa. 1987), cert. denied, 439 U.S. 932 (1989).

       The underlying premise of Flowers’ argument is that the trial court

revoked his intermediate punishment sentence solely on the basis of his

inability to benefit from sex offender treatment. See Flowers’ Brief at 13.

However, our review of the record reveals the court’s revocation order was

not so limited. Rather, in revoking the intermediate punishment sentence,

the court considered the facts that:           (1) there were no outpatient mental

health programs available that could address Flowers’ special needs, and (2)

even when Flowers took his medication (which he frequently ran out of) he

still experienced violent outbursts. See N.T., 6/24/2014, at 4-5, 9-10,18, 21-

22; N.T., 11/13/2015, at 7-9, 10-11. Based upon these facts, we do not find
____________________________________________


12Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa. Super. 2008),
appeal denied, 980 A.2d 111 (Pa. 2009).

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the court’s revocation of Flowers’ intermediate punishment sentence

constituted cruel and unusual punishment. It was clear from the testimony at

all three sentencing/re-sentencing hearings that Flowers was unable to adhere

to the conditions of his electronic home monitoring release. Accordingly, his

first issue fails.

       Second, in a related claim, Flowers insists that the court’s imposition of

a sentence of state incarceration constituted cruel and unusual punishment as

it was inherently disproportional to the original sentence, county intermediate

punishment, thereby violating his Eighth Amendment rights.         See Flowers’

Brief at 15. Flowers notes the original sentence “allows for rehabilitation and

a home residence,” while the new sentence “requires placement in a state

prison for several years.” Id. Moreover, he repeats his assertion that the

“only change in circumstance” was his intellectual inability to complete sex

offender treatment. Id.

       We note that a challenge to the constitutionality of a sentence “on a

claim that it violates [a defendant’s] right to be free from cruel and unusual

punishment raises a legality of sentencing claim since he is challenging the

trial court’s authority in imposing the sentence.” See Yasipour, supra, 957

A.2d at 740. The focus of an Eighth Amendment challenge is whether the

sentence imposed is “grossly disproportionate to a crime.” Spells, supra,

612 A.2d at 463, quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991).

However, successful Eighth Amendment challenges are “extremely rare where

the penalty is something other than capital punishment.” Yasipour, supra,

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957 A.2d at 743. See id. (imposition of 20 to 40 year sentence for third-

degree murder, following guilty but mentally ill verdict, did not violate Eighth

Amendment).

      As noted above, Flowers focuses on the purported disproportionality

between his original intermediate punishment sentence and his subsequent

term of incarceration. However, the trial court, in its opinion, determined the

prison sentence was not disproportionate “in light of [Flowers’] charges,

current mental health, and the surrounding circumstances.”           Trial Court

Opinion, 3/23/2016, at 5. We find no reason to disagree.

      Here, Flowers pled guilty to attempted rape. Indeed, he tried to drag

the victim, against her will, from a walking trail in order to have sex with her.

Accordingly, Flowers committed a serious offense. Moreover, while the court

initially permitted Flowers to serve his sentence in a less restrictive

environment (i.e., county intermediate punishment), it soon became apparent

that Flowers needed structured mental health treatment and more constraints

on his liberty due to his continued violent outbursts. As explained above, the

court considered much more than Flowers’ inability to benefit from sex

offender treatment. Therefore, we find the court’s imposition of a mitigated

range sentence following revocation of Flowers’ intermediate punishment

sentence did not violate his constitutional right to be free from cruel and

unusual punishment.

      Lastly, Flowers contends the trial court abused its discretion when it

failed to consider the factors listed in 42 Pa.C.S. § 9771(c) before imposing a

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sentence of total confinement, and, in doing so, relied upon an impermissible

factor, namely Flowers’ inability to complete sex offender treatment.     See

Flowers’ Brief at 16-17. This issue challenges the discretionary aspects of his

sentence.

      A challenge to the discretionary aspects of a sentence is not absolute,

but rather, “must be considered a petition for permission to appeal.”

Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (quotation

omitted).    In order to reach the merits of such a claim, this Court must

determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issue; (3) whether Appellant’s brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(quotation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Flowers complied with the procedural requirements for this appeal by

filing a timely post-sentence motion for modification of sentence, and

subsequent notice of appeal, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether he has raised a substantial question justifying our

review.




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      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).   An allegation that the trial court failed to consider the

requirements of Section 9771(c) before imposing a sentence of total

confinement raises a substantial question that the sentence imposed was

“inconsistent with a specific provision of the Sentencing Code.”             Id.

Accordingly, we proceed to an evaluation of Flowers’ claim on appeal.

      The Sentencing Code provides that, similar to the revocation of a

probationary sentence, when a trial court revokes a county intermediate

punishment sentence, “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(b). Moreover, Section 9771(c) precludes a trial court from

imposing a sentence of total confinement upon revocation of probation unless

the court finds one or more of the following:

      (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.




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42 Pa.C.S. § 9771(c). Flowers maintains that “[n]one of the factors set forth

in Section 9771(c) are present in this case.”        Flowers’ Brief at 17.    We

disagree.

      We recognize the trial court did not explicitly apply the Section 9771(c)

factors before imposing Flowers’ sentence. Nevertheless, we do not agree

with Flowers that none of the factors were present under the facts of his case.

See Flowers’ Brief at 17. While it is true he was not convicted of another

crime, his mental health impairments, coupled with his violent outbursts,

make it likely he would commit another crime if he were not imprisoned.

Indeed, after reciting the “instances of aggression” Flowers exhibited following

his intermediate punishment sentence, the trial court opined:

            Due to the nature of the charges and Mr. Flower[s’] violent
      history this Court is of the opinion that the sentence imposed was
      appropriate and within the sentencing guidelines. Additionally,
      the court ordered the state correctional institution to take notice
      of Mr. Flowers’ mental health condition and make every attempt
      to place him in a high impact mental health treatment facility.
      N.T. 12/22/15 at 9.

Trial Court Opinion, 3/23/2016, at 5.

      Considering Flowers’ continued violent outbursts both while on and off

his medication, as well as the lack of suitable outpatient mental health

treatment for him despite the court’s diligent efforts to find an appropriate

placement, we find the trial court did not err or abuse its discretion in imposing

a mitigated range sentence of incarceration following the revocation of his




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intermediate punishment sentence.13                Therefore, Flowers’ final claim is

meritless.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




____________________________________________


13 Our review of the record reveals that Packe and defense counsel researched
at least 15 placements for Flowers, none of which could accommodate his
special needs. See N.T., 11/13/2015, at 10-11. Indeed, Flowers’s case
presents a perfect storm of (1) serious charges which require him to register
as a sex offender, (2) violent behavior which remains largely untreatable, (3)
a lack of capacity to conceptually change his behavior due to mental
impairments, and (4) the lack of funding which would afform him placement
in certain facilities outside of prison. We share the frustration evidenced by
the trial court that the sentence imposed may still not address the underlying
mental health issues that appear to be the impetus of Flowers’s behavior.

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