J-S06009-17




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DASHIELL ELLIOTT

                            Appellant                  No. 3132 EDA 2015


           Appeal from the Judgment of Sentence September 10, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011272-2009


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                               FILED JUNE 29, 2017

       Dashiell Elliott appeals from the September 10, 2015 judgment of

sentence entered in the Philadelphia County Court of Common Pleas

following his violation of probation (“VOP”). We affirm.

       On November 10, 2009, Elliott pled guilty to possession of a firearm

with altered manufacturer number, conspiracy, firearms not to be carried

without a license, and sale or transfer of firearms.1       That same day, the

trial court sentenced Elliott to three concurrent terms of 1½ to 3 years’

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       *
           Former Justice specially assigned to the Superior Court.
       1
        18 Pa.C.S. §§ 6110.2(a), 903(a)(1), 6106(a)(1), and 6111(g)(4),
respectively.
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incarceration, followed by 3 years’ probation for the convictions for sale or

transfer of firearms, conspiracy, and firearms not to be carried without a

license. Elliott received no further penalty on the conviction for possession

of a firearm with altered manufacturer number.

     While on probation, Elliott committed a second offense. The trial court

set forth the subsequent procedural history as follows:

           On May 8, 2014, [Elliott] was arrested on Federal
        Firearms charges under federal docket number 2:14-cr-
        00204-LDD-1. . . . See N.T. 09/10/15 at pp. 3-4 ([Elliott]
        purchased firearms from an undercover informant in July
        2013 and November 2013).

           On July 21, 2014, [Elliott] pled guilty before the
        Honorable Legrome Davis to two counts of Possession of a
        Firearm by a Convicted Felon, 18 U.S.C. § 933(g)(1).

           On October 28, 2014, [Elliott] was sentenced to twenty-
        seven (27) months plus three (3) years probation.

           On August 19, 2015, a Gagnon II summary was filed [in
        this case]. The Gagnon II states that [Elliott] was in direct
        violation of his probation as a result of the underlying
        Federal indictment, and that until June 2, 2015, [Elliott]
        was under Special Supervision with State Parole; due to
        his probation case being past expiration, State Parole
        transferred the case to the Philadelphia Adult Probation
        and Parole Department to proceed with the violation
        process.

          On August 26, 2015, Paul Hetznecker, Esq. entered his
        appearance as privately retained counsel.

           On September 10, 2015, after a hearing, the Court
        found [Elliott] in direct violation of his probation. [Elliott]
        was sentenced to one (1) to two (2) years, to run
        consecutively to the Federal sentence [Elliott] was already
        serving under docket number 2:14-cr-00204-LDD-1.




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            On October 7, 2015, [Elliott] filed a pro se notice of
         appeal to the Superior Court.       A criminal docketing
         statement was not filed.

           On December 22, 2015, the Superior Court issued an
         Order remanding the case to the trial court to determine
         whether Attorney Hetznecker abandoned [Elliott].

             On January 20, 2016, after a hearing, the Court
         determined that Attorney Hetznecker did not abandon
         [Elliott]; that he was retained to represent [Elliott] on the
         VOP hearing only; that [Elliott] did not retain counsel to
         file an appeal nor did he request Attorney Hetznecker to
         file an appeal; and that new counsel be appointed by the
         Court Appointment Unit.

            On January 21, 2016, Michael Marryshow, Esq. entered
         his appearance.

            On February 25, 2016, Attorney Marryshow filed a
         1925(b) Statement of Matters Complained of on Appeal . .
         ..

1925(a) Opinion, 3/15/16, at 1-3 (“1925(a) Op.”) (some internal citations

omitted).

      On appeal, Elliott raises the following issue:

         Did the court violate [Elliott]’s right to a speedy hearing
         following a delay of one year where [Elliott] was prejudiced
         as he remained in jail awaiting the violation hearing and
         [Elliott] did not receive written notice of the probation
         violation charge and the court failed to state what
         condition of probation [Elliott] violated?

Elliott’s Br. at 4 (full capitalization omitted).

      Elliott first contends that the trial court violated his right to a speedy

hearing. However, Elliott has waived this claim by failing to raise it at the

VOP hearing.     See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”);


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Commonwealth v. Collins, 424 A.2d 1254, 1254 (Pa. 1981) (holding

failure to raise claim that appellant was denied a speedy revocation hearing

“at any time in the court below precludes their consideration on appeal”).

     Even if Elliott had preserved his claim, we would conclude that it lacks

merit. We review a sentence imposed following the revocation of probation

for an abuse of discretion.   See Commonwealth v. Simmons, 56 A.3d

1280, 1283 (Pa.Super. 2012).      Pennsylvania Rule of Criminal Procedure

708(B) provides that

        [w]henever defendant has been sentenced to probation or
        intermediate punishment, or placed on parole, the judge
        shall not revoke such probation, intermediate punishment,
        or parole as allowed by law unless there has been:

           (1) a hearing held as speedily as possible at which the
           defendant is present and represented by counsel; and

           (2) a finding of record that the defendant violated a
           condition of probation, intermediate punishment, or
           parole.

Pa.R.Crim.P. 708(B).    “The language ‘as speedily as possible’ has been

interpreted to require a hearing within a reasonable time.” Commonwealth

v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009) (quotation omitted). We

have explained that “[i]n evaluating the reasonableness of a delay, the court

examines three factors: the length of the delay; the reasons for the delay;

and the prejudice resulting to the defendant from the delay.”     Id. Where

the probation violation is based on a new conviction, “[t]he measure of delay

extends from the defendant's date of conviction or entry of a guilty plea on

the new charges to the date the court holds the revocation hearing.”

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Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa.Super. 2010).

With regard to prejudice, we have stated:

         If a defendant is already incarcerated on the charges that
         triggered the probation revocation, he cannot claim the
         delay in holding his revocation hearing caused him any
         loss of personal liberty. Likewise, where a conviction on
         new charges conclusively establishes the defendant's
         probation violation, the defendant cannot claim a delay in
         his VOP hearing prejudiced him because he lost favorable
         witnesses and evidence.

Id. at 1263-64 (internal citations omitted).

      Here, we conclude that Elliott failed to establish prejudice. As the trial

court stated, Elliott “was not deprived of any witnesses or evidence since the

sole reason [his] probation was revoked was because he pled guilty to the

Federal firearms charges.”    1925(a) Op. at 5.     Further, he “did not suffer

prejudice arising from a loss of personal liberty during the delay because he

was already incarcerated on the Federal charges that triggered the probation

revocation.” Id. at 6. Therefore, the trial court did not abuse its discretion

in finding Elliott failed to establish the delay was unreasonable.

      Next, Elliot claims that he did not receive written notice of the

probation violation charge. However, Elliott has waived this claim by failing

to include it in his Rule 1925(b) statement. See Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a [Rule] 1925(b)




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statement will be deemed waived.”).2

       Finally, Elliott claims that the Commonwealth did not present sufficient

evidence that Elliott violated a condition of his probation. Elliot argues that

the Commonwealth presented no evidence at the VOP hearing that he had

pled guilty to firearms charges in federal court. Elliott further claims the trial

court failed to state which condition of probation Elliott had violated.

       In reviewing whether a determination of violation is supported by

sufficient evidence, we apply the following principles:

               The imposition of sentence following the revocation of
           probation is vested within the sound discretion of the trial
           court, which, absent an abuse of that discretion, will not be
           disturbed on appeal. An abuse of discretion is more than
           an error in judgment—a sentencing court has not abused
           its discretion unless the record discloses that the judgment
           exercised was manifestly unreasonable, or the result of
           partiality, prejudice, bias or ill-will.

                                           ...

              When assessing whether to revoke probation, the trial
           court must balance the interests of society in preventing
           future criminal conduct by the defendant against the
           possibility of rehabilitating the defendant outside of prison.
           In order to uphold a revocation of probation, the
           Commonwealth must show by a preponderance of the
           evidence that a defendant violated his probation.


____________________________________________


       2
         We further note that Elliott’s argument regarding lack of notice is half
a paragraph embedded within his speedy trial argument and consists of a
conclusory statement followed by two citations. See Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to
. . . develop the issue in [a] meaningful fashion capable of review, that claim
is waived.”)



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Simmons, 56 A.3d at 1283-84 (quoting Commonwealth v. Allhouse, 333

A.3d 31, 37 (Pa.Super. 2011)).

     Section 9771(b) of the Sentencing Code provides that “[t]he court

may revoke an order of probation upon proof of the violation of specified

conditions of the probation.” 42 Pa.C.S. § 9771(b). Section 9771(c) further

states that “[t]he court shall not impose a sentence of total confinement

upon revocation unless it finds that . . . the defendant has been convicted of

another crime[.]” 42 Pa.C.S. § 9771(c).

     Here, the trial court concluded:

            Attorney Hetzbecker stated on the record at the VOP
        hearing that [Elliott] pled guilty to Federal firearms
        charges after he purchased two separate firearms from an
        undercover informant in July and November of 2013. N.T.
        09/10/15 at p. 4. Although the Court had a copy of the
        federal docket, [Elliott] conceded at the VOP hearing that
        he “got this indictment for selling [to] an undercover
        office[r] firearms,” that he “made a bad choice,” and that
        “it came about as a profit thing, trying to make a little bit
        of extra money[.]” Id. at p. 8. Thus, [Elliott]’s sufficiency
        claim is without merit.

1925(a) Op. at 7. We agree.

     The record reflects that the trial court revoked Elliott’s probation

because he committed a new crime.

        THE COURT: So, we’re here on direct violation for a gun
        offense that [Elliott] was convicted of, or pled guilty to, I
        don’t know which it was. Was [he] convicted in Federal
        Court?

        [DEFENSE COUNSEL]: He pled guilty, yes.

        THE COURT: He pled guilty. And I wanted to know the
        facts of the underlying offense since his sentence in my


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        case was on a gun charge where he was providing false
        information during a firearms transfer.

             So, what was the underlying indictment?

        [DEFENSE COUNSEL]:        Your Honor, the underlying
        indictment, which constitutes a direct violation here,
        involved Mr. Elliott purchasing from an undercover
        informant two separate firearms, and these occurred in
        July and November 2013.

        THE COURT: Okay.

        [DEFENSE COUNSEL]: He then admitted his guilt, pled
        guilty in front of Judge Davis.

N.T., 9/10/15, at 3-4.

     Therefore, we conclude the trial court did not abuse its discretion in

finding that the evidence was sufficient to uphold Elliott’s revocation of

probation.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2017




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