Com. v. Crump
| Decision Date | 28 May 2010 |
| Docket Number | No. 2841 EDA 2008.,2841 EDA 2008. |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Ryfee CRUMP, Appellant. |
| Court | Pennsylvania Superior Court |
John P. Cotter, Philadelphia, for appellant.
Hugh J. Burns, Jr., Asst. Dist. Atty., for Com., appellee.
¶ 1 Appellant, Ryfee Crump, appeals from the judgment of sentence imposed after the trial court revoked an earlier sentence of probation. We affirm.
¶ 2 A review of the record reveals the following facts. Appellant fled from the police and engaged them in an automobile chase before he crashed through a metal fence and into a tree. He then attempted to escape on foot, but was subsequently apprehended and found in possession of 3.576 grams of crack cocaine. After a non-jury trial on February 17, 2005, Appellant was found guilty of possession with intent to deliver ("PWID"). On May 3, 2005, the court sentenced Appellant to a term of incarceration of one to two years to be followed by a consecutive term of three years probation.
¶ 3 After serving his term of imprisonment, Appellant was released to probation. Appellant then was charged with violating the terms and conditions of probation as a result of his failure to report and due to a subsequent arrest for possession of a controlled substance. At the time of his second arrest, Appellant was shot but fled from the hospital and remained a fugitive until yet a third arrest. A violation of probation (VOP) hearing was conducted on his 2005 PWID sentence and the trial court found Appellant did violate his probation. He was sentenced to a term of one to two years incarceration with a consecutive term of four years probation. On appeal, Appellant asserts that the trial court erred in imposing a sentence of total confinement for technical violations of probation and he contends that the trial court imposed an illegal sentence.
¶ 4 Our standard of review is well settled. Sentencing is a matter vested within the discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009). An abuse of discretion requires the trial court to have acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). It is also now accepted that in an appeal following the revocation of probation, it is within our scope of review to consider challenges to both the legality of the final sentence and the discretionary aspects of an appellant's sentence. Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa.Super.2006).
¶ 5 Appellant's first issue contests the discretionary aspects of his sentence. We note that there is no absolute right to appeal when challenging the discretionary aspect of a sentence. Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa.Super.2008). Appeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code. Id. at 886. A substantial question is raised when the appellant sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process. Id.
¶ 6 When a challenge to the discretionary aspect of a sentence is raised, an appellant must provide a separate statement specifying where the sentence falls in the sentencing guidelines, what provision of the sentencing code has been violated, what fundamental norm the sentence violates, and the manner in which it violates the norm. Pa.R.A.P. 2119(f). In the instant case, Appellant has included a 2119(f) statement within his brief and advances a plausible argument that the trial court violated the fundamental norms underlying the sentencing process. The imposition of a sentence of total confinement after the revocation of probation for a technical violation, and not a new criminal offense, implicates the "fundamental norms which underlie the sentencing process." Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super.2000). Additionally, a substantial question that the sentence was not appropriate under the Sentencing Code may occur even where a sentence is within the statutory limits. Commonwealth v. Titus, 816 A.2d 251 (Pa.Super.2003). As noted, Appellant argues that the trial court abused its discretion in imposing a sentence of total confinement for technical violations of probation. Hence, we review Appellant's issue on its merits.
¶ 7 When imposing a sentence of total confinement after a probation revocation, the sentencing court is to consider the factors set forth in 42 Pa.C.S. § 9771. Commonwealth v. Ferguson, supra. Under 42 Pa.C.S. § 9771(c), a court may sentence a defendant to total confinement subsequent to revocation of probation if any of the following conditions exist:
See also Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa.Super.2001).
¶ 8 A sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question, but the record as a whole must reflect the sentencing court's consideration of the facts of the crime and character of the offender. Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super.2006). In the case sub judice, the trial court noted that Appellant failed to report on October 13, 2006, and October 23, 2006, and was arrested for possession of crack cocaine on October 29, 2006.
¶ 9 The court considered the testimony at the VOP hearing regarding Appellant's lack of success under probation, arrest while under supervision, failure to appear on numerous occasions, and flight from a halfway house while under parole supervision.1 The sentencing record therein reveals Appellant was found in possession of a controlled substance while on probation, thus showing Appellant was likely to commit another crime. See Malovich, supra, at 1254. Since the record as a whole reflects that the trial court considered the facts of the crime and character of Appellant in making its determination, we cannot re-weigh the sentencing factors to achieve a different result. Appellant therefore is not entitled to relief on that basis.
¶ 10 Appellant's remaining issue is that his sentence exceeds the statutory maximum. The issue of whether a sentence is illegal is a question of law and our scope of review is plenary. Commonwealth v. Maxwell, 932 A.2d 941, 942 (Pa.Super.2007). The maximum sentence allowable under the law for the crime of which Appellant was convicted, PWID, is ten years.2
¶ 11 Appellant was originally given a split sentence, a term of incarceration of one to two years followed by a consecutive term of three years probation. The trial court's sentence after the revocation of probation was one to two years imprisonment with a consecutive term of four years probation.
¶ 12 Appellant contends that when the two separate split sentences are added together, the amount of time exceeds the statutory maximum of ten years. The question thus becomes whether the original split sentence of incarceration and probation are to be factored into determining the legality of the new sentence imposed after the revocation of probation. We find that under the facts of the present case, the original probation sentence is not to be considered in determining the legality of Appellant's subsequent sentence.
¶ 13 When determining the lawful maximum allowable on a split sentence, the time originally imposed cannot exceed the statutory maximum. See 42 Pa.C.S. § 9754; 42 Pa.C.S. 9756; Commonwealth v. Nickens, 259 Pa.Super. 143, 393 A.2d 758, 759 (1978); Commonwealth v. Perkins, 302 Pa.Super. 12, 448 A.2d 70 (1982). Thus, where the maximum is ten years, a defendant cannot receive a term of incarceration of three to six years followed by five years probation. However, in a situation where probation is revoked on a split sentence, as in the case sub judice, a defendant is not entitled to credit for time spent on probation. 42 Pa.C.S. § 9771(b); see also 42 Pa.C.S. § 9760 (). Nor is a defendant automatically granted credit for time served while incarcerated on the original sentence unless the court imposes a new sentence that would result in the defendant serving time in prison in excess of the statutory maximum. Commonwealth v. Yakell, 876 A.2d 1040 (Pa.Super.2005); Commonwealth v. Williams, 443 Pa.Super. 479, 662 A.2d 658 (1995).
¶ 14 Pursuant to 42 Pa.C.S. § 9771(b), when a defendant is found in violation of his probation, "upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation." Therefore, the sentencing court at the time of re-sentencing must give "due consideration" to the time the defendant spent serving probation, but need not credit the defendant with any time spent on probation.
¶ 15 Additionally, Section 9754 of the Sentencing Code only mandates that a sentencing court keep a term of probation under the maximum term a defendant could be confined. Section 9754 states:
General rule.—In imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum term for which the defendant could be confined, and the authority that shall conduct the...
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