J-S66008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EDWARD DEVEAU JOHNSON,

                            Appellant                 No. 1771 WDA 2016


       Appeal from the Judgment of Sentence Entered October 19, 2016
              In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007065-2006


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 21, 2017

        Appellant, Edward Deveau Johnson, appeals from the judgment of

sentence of two to four years’ incarceration, imposed following the

revocation of his probation.        We vacate Appellant’s judgment of sentence

and remand for resentencing.

        We do not delve into the facts of Appellant’s underlying conviction and

the events leading up to his probation violation hearing, as they are not

dispositive of his appeal. Instead, our focus is on the trial court’s conduct

during an October 19, 2016 probation violation hearing.            Specifically,

Appellant complains of the following exchange between him and the trial

court:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     [Trial court]: [Appellant], is there anything you want to tell me?

     [Appellant]: Yes, sir.   As far as the dirty urine[,] I had a dirty
     urine.

     [Court reporter]: I’m sorry. Can you repeat that[?]

     [Appellant]: I said I had a dirty urine. Me and [the probation
     officer] definitely started off rough to begin with. My first time
     meeting her personally was after the car crash when she came
     down to my residence. I was on OxyContin. But I raised my
     voice aggressively, which I told her but, and I told her flat out
     that I apologize. I’m sorry for anything or any misjudgments
     that you took from me because I was raised by my mom. I told
     her I was sorry about that.

          As far as the working go, I got two jobs waiting on me
     ASAP.

     [Trial court]: Where are they?

     [Appellant]: One with Minnifield Construction and one with —

     [Trial court]: Odell Minnifield?

     [Appellant]: Yes, sir.

     [Trial court]: He’s dead.

     [Appellant]: No, his son.

     [Trial court]: I said Odell, and you said yeah.     But Odell has
     been dead over a year now.

     [Appellant]: Yes, sir.

     [Trial court]: So which one are you working for?

     [Appellant]: I’m working for Odell, Jr.

     [Trial court]: Okay. All right. What else? What was your other
     job?

     [Appellant]: California Pools & Granite.

     [Trial court]: Pardon me.

     [Appellant]: California Pools & Granite.

     [Trial court]: Okay. Who’s the contact person there?

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      [Appellant]: My contact person?

      [Trial court]: You hear me. Come on, now.

      [Appellant]: Yes, sir. It’s Miles, Miles Miller.

      [Trial court]: Who?

      [Appellant]: Miles Miller.

      [Trial court]: Okay. Anything else?

      [Appellant’s counsel]: May I have one second, Your Honor?

         (Discussion held off the record between [Appellant] and
         counsel.)

      [Trial court]: So why would you tell me Odell. Come on. Let’s
      move on. Anything else you want to tell me?

           Two to four years, state correctional institutional.     Let’s
      move on. I’ve heard enough.

         (The Judge left the bench.)

      [Appellant]: Your Honor, please, please, please. Your Honor,
      please. Two seconds. Please. Please, Your honor. Please.
      Man, this is crazy.

         (Whereupon, this matter was concluded.)

N.T., 10/19/2016, at 20-23; see also Appellant’s Brief at 9-10.

      On October 28, 2016, Appellant filed a post-sentence motion in which

he asserted, inter alia, that the trial court made no findings on the record

relative to the alleged probation violations and/or the reasoning for the

sentence imposed; it did not give Appellant the opportunity to complete his

allocution statement; and it did not advise Appellant of his appellate rights.

See    Appellant’s    Post-Sentence     Motion/Motion    for   Reconsideration,

10/28/2016, at 1-2 (unnumbered pages). On November 16, 2016, the trial

court denied Appellant’s motion.


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       On November 18, 2016, Appellant filed a timely notice of appeal to this

Court. Subsequently, the trial court instructed Appellant to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal, and he timely

complied.     In its Rule 1925(a) opinion, the trial court requested that this

Court remand the case, acknowledging that “[a] review of the transcript

shows the sentence being pronounced but the traditional notice of

[Appellant’s] rights to post-sentence relief and his rights to appellate review

were not communicated to [him].” Trial Court’s Pa.R.A.P. 1925(a) Opinion,

4/13/2017, at 1 (single page).1 It did not address the other issues raised in

Appellant’s Rule 1925(b) statement.

       Appellant presents the following issues for our review:
          1. Under Pa.R.Crim.P. 708(D)(2) and 42 Pa.C.S. § 9721(b), a
             trial court must state on the record the reasons for the
             sentence imposed. Here, the trial court failed to state on
             the record the reasons for its sentence. Did the court err?

          2. Under Pa.R.Crim.P. 708(D)(1), a trial court must (1) afford
             the defendant the opportunity to make a statement on his
             behalf and (2) afford his counsel the opportunity to
             present information and argument relative to sentencing.
             The trial court failed to offer [Appellant] either opportunity
             here. Did the court err?

          3. Under Pa.R.Crim.P. 708(D)(3), at sentencing, a trial court
             must advise the defendant on the record of his post-
             sentence and appellate rights. At [Appellant’s] sentencing,
             the trial court failed to advise [Appellant] on the record of
             his post-sentence and appellate rights. Did the court err?
____________________________________________


1
 Despite the trial court’s failure to advise Appellant of his post-sentence and
appellate rights, Appellant managed to file both a timely post-sentence
motion, and a timely notice of appeal to this Court.



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         4. Under 42 Pa.C.S. § 9771(c), a trial court is prohibited from
            sentencing a probation violator to total confinement unless
            it finds that one of three situation applies. None were
            found to apply here.        In truth, the court evidently
            sentenced [Appellant] to two-to-four years of incarceration
            because it mistakenly believed that, during the sentencing
            hearing, [Appellant] lied about where he planned to work if
            released from jail. Did the court err?

Appellant’s Brief at 3-4. We address these issues out of order for ease of

disposition.

      First, Appellant argues that “[t]he trial court ignored and/or misapplied

the law when it failed to comply with Pa.R.Crim.P. 708(D)(1).” Appellant’s

Brief at 19 (emphasis omitted). Rule 708(D)(1) states that “[a]t the time of

sentencing, the judge shall afford the defendant the opportunity to make a

statement in his or her behalf and shall afford counsel for both parties the

opportunity to present information and argument relative to sentencing.”

Pa.R.Crim.P. 708(D)(1).    According to Appellant, “the trial court did hear

briefly from [him]; however, once the court mistakenly concluded that

[Appellant] lied about his employer, it interrupted [Appellant’s] allocution

and abruptly ended the hearing.”       Id. at 20.   He also claims that “[i]n

addition to cutting off [Appellant], the court also failed to give [Appellant’s]

counsel any opportunity to present argument relative to sentencing.”        Id.

Consequently, he insists that we remand the matter to the trial court. Id. at

20-21.

      Likewise, the Commonwealth agrees that we should remand the

matter for a new sentencing proceeding.      Commonwealth’s Brief at 6.       It



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concedes that the trial court failed to allow Appellant “to exercise his right of

allocution upon being sentenced following the revocation of his probation.”

Id.   The Commonwealth observes that “[A]ppellant, prior to [the trial

court’s] imposition of sentence, was only able to speak about his potential

for employment, and it seemed quite clear that he had more to tell the court

before [the trial court] brought the proceedings to a close.” Id. at 8.

      This Court has previously discussed a defendant’s right to allocution,

explaining:
      The general right to allocution is set forth in Pa.R.Crim.P.
      704(C)(1), which provides:

         At the time of sentencing, the judge shall afford the
         defendant the opportunity to make a statement in his or
         her behalf and shall afford counsel for both parties the
         opportunity to present information and argument relative
         to sentencing.

      P[a].R.Crim.P. 704(C)(1). Additionally, Pa.R.Crim.P. 708(D)(1),
      pertaining to sentencing procedures following revocation of
      probation, provides:

         At the time of sentencing, the judge shall afford the
         defendant the opportunity to make a statement in his or
         her behalf and shall afford counsel for both parties the
         opportunity to present information and argument relative
         to sentencing.

      Pa.R.Crim.P. 708(D)(1). Similarly, the Sentencing Code, at 42
      Pa.C.S.[] § 9752 — Sentencing proceeding generally — requires
      that the sentencing court “[a]fford to the defendant the right to
      make a statement.” 42 Pa.C.S.[] § 9752(a)(2).

      Our Supreme Court has noted that a defendant’s right to
      personally address the court prior to sentencing, and thereby
      plead for mercy, is of paramount importance and has rejected
      the proposition that a defendant must show prejudice because of
      the denial of the right. Commonwealth v. Thomas, 520 Pa.
      206, 553 A.2d 918, 919 (1989). As the Thomas Court stated:

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        “What effect the exercise of the right of allocution might have on
        the subjective process of sentencing can never be known with
        such certainty that a reviewing court can conclude there was no
        prejudice in its absence.” Id. The Court interpreted then-Rule
        1405, now renumbered at Rule 704, as requiring the sentencing
        court to inform the defendant of his right to speak prior to
        sentencing, and where the trial court erroneously fails to so
        inform the defendant of the right, a resentencing hearing is
        required. Id.; see also Commonwealth v. Hague, 840 A.2d
        1018, 1019 (Pa. Super. 2003) (“The failure to afford a criminal
        defendant the right to address the court prior to sentencing
        requires remand to allow allocution prior to resentencing.”)[.]

Commonwealth v. Hardy, 99 A.3d 577, 580 (Pa. Super. 2014) (footnote

omitted).     See also Thomas, 553 A.2d at 919 (“Notwithstanding the

modern innovations in our law, nothing has lessened ... the need for the

defendant, personally, to have the opportunity to present to the court his

plea in mitigation. The most persuasive counsel may not be able to speak

for a defendant as the defendant might, with halting eloquence, speak for

himself.”)   (citations,   internal   quotation   marks,    and     original   brackets

omitted); Commonwealth v. Jacobs, 900 A.2d 368, 377 (Pa. Super. 2006)

(“[A]llocution is an underlying process through which the defendant is given

the opportunity to speak, and through which the court may be inclined to

grant    leniency.    Failure   to    grant   a defendant    this    important right

undoubtedly constitutes legal error.”).

        Our review of the transcript indicates that the trial court prematurely

— and without discernible justification — put a stop to Appellant’s

statement, and therefore did not permit Appellant to fully exercise his right

to allocution pursuant to Pa.R.Crim.P. 708(D)(1).           Moreover, both parties



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request that we remand this matter for resentencing on this basis.2

Accordingly, we vacate Appellant’s judgment of sentence and remand this

case to the trial court for resentencing and compliance with Rule 708(D)(1).3

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




____________________________________________


2
 Again, we reiterate that the trial court also requests that we remand this
matter for resentencing, albeit on a different basis.
3
   In light of our disposition, we need not address Appellant’s remaining
issues on appeal. However, upon resentencing, the trial court should be
mindful of complying with Rule 708(D)’s other requirements including, inter
alia, stating on the record the reasons for the sentence imposed, and
advising Appellant of his post-sentence and appellate rights.          See
Pa.R.Crim.P. 708(D).



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