J-S20018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    JOHN ALLEN CHAVIS                           :
                                                :
                       Appellant                :   No. 1681 MDA 2017

          Appeal from the Judgment of Sentence September 13, 2017
             In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0002660-2015


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                                   FILED AUGUST 20, 2018

        John Allen Chavis appeals from the judgment of sentence imposed on

September 13, 2017, in the Court of Common Pleas of Lackawanna County on

the charge of criminal use of a communication facility (CUCF).1             Chavis

received a sentence of 18 to 60 months’ incarceration. In this timely appeal,

Chavis raises three claims, all of which relate to his exercise of the 5 th

Amendment right during allocution.             Because the record is unclear if the

invocation of the 5th Amendment was proper, we vacate the sentence and

remand for an in camera proffer, if necessary, and resentencing.

        A brief recitation of the history of this matter is required. Chavis was

arrested after selling heroin to a confidential informant. He was charged with

CUCF, possession with intent to deliver, possession, and possession of drug

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1   18 Pa.C.S. § 7512(a).
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paraphernalia.   He accepted a plea agreement wherein all charges except

CUCF would be dropped and the Commonwealth would not oppose furlough

to a drug treatment facility. Prior to sentencing, the trial court granted Chavis

a furlough to a local Salvation Army center for drug treatment. He completed

five of six months of the program before he absconded. He was apprehended

and charged with escape. Following his apprehension, he was sentenced, as

noted above, on the CUCF charge. Prior to sentencing, Chavis asked the trial

court for a continuance until his escape charge had resolved. Chavis informed

the court that he believed he could not adequately explain his actions

regarding absconding from the Salvation Army program without incriminating

himself on the open escape charge.        The trial court, without conducting a

hearing on the 5th Amendment claim, denied the request for continuance,

asserting the escape charge had no bearing on the resentencing.           At the

sentencing hearing, Chavis again explained he believed his right to allocution

was improperly limited by his invocation of the 5th Amendment.

      Initially, we note the following:

         Appellate review of a trial court's continuance decision is
         deferential. The grant or denial of a motion for a
         continuance is within the sound discretion of the trial court
         and will be reversed only upon a showing of an abuse of
         discretion. As we have consistently stated, an abuse of
         discretion is not merely an error of judgment. Rather,
         discretion is abused when the law is overridden or
         misapplied, or the judgment exercised is manifestly
         unreasonable, or the result of partiality, prejudice, bias, or
         ill-will, as shown by the evidence or the record[.]
      Commonwealth v. Brooks, 628 Pa. 524, 529-30, 104 A.3d 466
      (2014) (quotations marks, quotation, and citation omitted).

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      This Court has observed that “[t]rial judges necessarily require a
      great deal of latitude in scheduling trials. Not the least of their
      problems is that of assembling the witnesses, lawyers, and jurors
      at the same place at the same time, and this burden counsels
      against    continuances    except    for   compelling    reasons.”
      Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super.
      2013) (quotation omitted). However, the trial court exceeds the
      bounds of its discretion when it denies a continuance on the basis
      of “an unreasonable and arbitrary insistence upon expeditiousness
      in the face of a justifiable request for delay[.]” Id. at 672
      (quotation marks and quotation omitted). Accordingly, we must
      examine the reasons presented to the trial court for requesting
      the continuance, as well as the trial court's reasons for denying
      the request. See id.

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016).

      Further, Pa.R.Crim.P. 704(C)(1) grants a defendant the right of

allocution prior to imposition of sentence, stating, in relevant part:

      At the time of sentencing, the judge shall afford the defendant the
      opportunity to make a statement in his or her behalf…

Pa.R.Crim.P. 704(C)(1).

      The comment to Rule 704(C)(1) is strongly worded.

      Paragraph (C)(1) retains the former requirement that the judge
      afford the defendant an opportunity to make a statement… . The
      defendant’s right to allocution at sentencing is well established… .

Id., Comment (emphasis added).

      The 5th Amendment to the United States Constitution provides “no

person … shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend V. The right against self-incrimination applies

not only to the case in which the defendant is currently testifying, but prevents

the defendant from being compelled to give answers that “might incriminate



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[the speaker] in future criminal proceedings.” Commonwealth v. Knoble,

42 A.3d 976, 979 (Pa. 2012).

       When Chavis requested a continuance of the sentencing hearing, the

letter to the trial court stated:

       As the facts and circumstances of the [Chavis’s] pending charges
       may very well be a topic that could come up at today’s sentencing,
       when Defense Counsel makes sentencing arguments and/or when
       [Chavis] is given the opportunity to speak on his own behalf,
       [Chavis’s] Fifth Amendment Rights are implicated. [Chavis] either
       speaks at sentencing, potentially waiving his Fifth Amendment
       Rights, or he stands silent at Sentencing and he is thereby
       deprived of the Due Process Rights of having the opportunity to
       be heard prior to having a sentence imposed on him. The decision
       to choose between Constitutional Rights and in which proceeding
       [Chavis] should take action that could severely prejudice him,
       should not be one (1) [sic] that he is forced to make.

Letter to the Court, 9/13/2017, at 1-2.2

       Later that day, at the sentencing hearing, Defense Counsel repeated his

5th Amendment concerns, resulting in this exchange between Counsel and the

trial judge:

       THE COURT: This matter has been scheduled for sentencing
       several times since January of 2017 and there is no reason to
       continue it beyond today. The fact that there is an outstanding
       charge has absolutely no impact whatsoever on these
       proceedings. I may not consider the fact that there is an
       uncharged crime. It is not a conviction. It does not count on the
       prior record score. It has absolutely no impact, nor will it be given
       any consideration in the imposition of this sentence.

____________________________________________


2 This letter memorialized a verbal request Defense Counsel had made the
prior day. The letter was delivered to the trial court on the morning of the
sentencing hearing. We note the continuance request was not denied as
untimely.

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      [DEFENSE COUNSEL]: The purpose, Your Honor, of the request
      for continuance was that the facts and circumstances surrounding
      the new charge that’s pending before the Court would potentially
      be raised in my argument –

      THE COURT: Why should it be raised? Why should they be raised?
      They have nothing to do with this. The events took place
      afterwards. They have nothing to do with the C.U.C.F. that took
      place on December 7, 2015.

      [DEFENSE COUNSEL]: They would have relevance, Your Honor, as
      to whether he should be given full credit for the Salvation Army
      program. He can’t speak –

      THE COURT: The Salvation Army credit is totally up to me. It’s
      discretionary with the Court. Given the furlough that was granted,
      the fact that he went AWOL from that program and remained
      absent for almost two months before he was apprehended, he will
      not receive credit for the time at the Salvation Army.

      [DEFENSE COUNSEL]: And Your Honor, my point in raising that
      issue respectfully is that he can’t speak to that issue here today,
      nor can I, as it would relate to his escape charge that’s still
      pending. He’s been advised of his Fifth Amendment right, and I
      believe he’ll be asserting that today with regard to just that issue.

      THE COURT: Fine.

N.T. Sentencing, 9/13/2017, at 3-5.

      It appears from the foregoing exchange, the trial judge misapprehended

the gist of Chavis’s argument. The trial judge did not understand how details,

facts and circumstances of Chavis’s absconding from his furlough at the

Salvation Army could be relevant. However, Chavis’s flight and his failure to

complete his furlough was proffered as part of his allocution. As such, while

the relevance of the circumstances surrounding Chavis’s absconding may

prove to be irrelevant, relevance cannot be denied facially.



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       It appears clear to us that Chavis was attempting to request he be given

full credit for the time in the Salvation Army program, but was afraid that the

explanation would be used against him in the case arising from his escape.

The purpose of allocution at sentencing is to provide a defendant with the

opportunity to explain his actions and to provide possibly mitigating factors.

While a trial court is not required to believe a defendant’s allocution, the trial

court is required to hear the allocution and consider it.

       Once Chavis raised his colorable claim of 5th Amendment privilege, the

trial court had multiple methods to proceed.        The trial court could have

accepted the claim on face value and rescheduled the sentencing hearing.

Another option was the trial court could have held an in camera proffer, where

the defendant might provide an outline of the substance of his claim, thereby

allowing the trial court to determine if Chavis was actually entitled to 5th

Amendment protection. If Chavis was properly invoking his right against self-

incrimination, the hearing could then be rescheduled. If, however, the trial

court determined Chavis’s claim did not properly invoke the 5th Amendment,

Chavis would have had the option to immediately appeal the decision 3 or to

accept the ruling and proceed to sentencing.

       However, by denying Chavis’s request for a continuance and bypassing

Chavis’s 5th Amendment claim, the trial court denied Chavis a meaningful
____________________________________________


3 A decision denying a defendant Fifth Amendment protection is an
immediately appealable collateral order. See Commonwealth v. Davis, 176
A.3d 869 (Pa. Super. 2017), citing Ben v. Schwartz, 729 A.2d 547 (Pa.
1999).

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opportunity to present mitigating evidence, the very purpose of allocution.

This denial, without knowing the substance of Chavis’s claim, represents an

abuse of discretion.

       In light of the foregoing, we vacate the judgment of sentence and

remand for a new sentencing hearing, including an in camera hearing, if

necessary. Said hearing is to be held as soon as practicable, but not later than

60 days after the return of the certified record to the trial court, provided that

Chavis’s 5th Amendment claim has resolved.4

       Judgment of sentence vacated.           This matter is remanded for action

consistent with this decision. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/20/2018




____________________________________________


4It appears that the escape charge has resolved. Therefore, it appears that
Chavis’s 5th Amendment claim has also resolved. If this is true, the in camera
hearing is likely unnecessary.

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