Com. v. Malovich

• Decision Date: 17 July 2006
• Citation: 903 A.2d 1247
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joseph James MALOVICH III, Appellant.
• Court: Pennsylvania Superior Court

903 A.2d 1247

COMMONWEALTH of Pennsylvania, Appellee, v. Joseph James MALOVICH III, Appellant.

Superior Court of Pennsylvania.

Argued May 25, 2006.

Filed July 17, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Donald E. Speice, Hollidaysburg, for appellant.

Terrence E. Tomassetti, Richard A. Consiglio, Asst. Dist. Atty's, Hollidaysburg, for Com., appellee.

BEFORE: DEL SOLE, P.J.E., ORIE MELVIN and COLVILLE^*, JJ.

OPINION BY COLVILLE, J.:

¶ 1 This appeal challenges the discretionary aspects of the sentence imposed following Appellant's probation revocation. We affirm the judgment of sentence.

¶ 2 Appellant was serving eighteen months' probation for theft by deception. (He had committed this crime by cashing a forged check for six hundred and fifty dollars.) When a probation officer went to Appellant's reported address to conduct a curfew check, he learned that Appellant no longer resided there. Four days later, the officer found Appellant. He was in possession of marijuana.

¶ 3 The trial court revoked Appellant's probation, sentencing him to state incarceration of not less than eighteen months nor more than thirty-six months. This appeal follows.

¶ 4 Before we reach the merits of this case, we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issues; (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 inappropriate under the sentencing code. Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super.2005). The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Id. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Id. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case. Id.

Timeliness

¶ 5 The court sentenced Appellant on August 22, 2005. On September 20, 2005, he appealed. Having been filed within thirty days of sentencing, this appeal is timely. Pa.R.Crim.P. 708(D).

Preservation of Issues

¶ 6 In order to decide whether Appellant preserved his issues, we first need to determine just what those issues are. He makes three claims. First, Appellant asserts that the sentencing court did not state its reasons for the penalty which it imposed. Second, he contends that the court's actions were inconsistent with a specific provision of the sentencing code, namely 42 Pa.C.S.A. § 9771(c). More precisely, he notes that this statute specifies the conditions under which a court may impose total confinement for a probation revocation. He then argues that the sentencing court gave no consideration to this statute. Third, Appellant alleges that the probation violations were minor, technical ones, thus rendering his particular sentence excessive and disproportionate to those violations.

¶ 7 Having determined what claims Appellant seeks to raise with respect to his sentence, we now decide whether he has preserved those three claims. To preserve an attack on the discretionary aspects of sentence, an appellant must raise his issues at sentencing or in a post-sentence motion. Commonwealth v. Shugars, 895 A.2d 1270, 1273, 1274 (Pa.Super.2006); Hyland, 875 A.2d at 1183. Issues not presented to the sentencing court are waived and cannot be raised for the first time on appeal. Commonwealth v. Evans, 2006 PA Super 132, 10; Pa.R.A.P. 302(a).

¶ 8 No post-sentence motions were filed. We therefore look to the sentencing proceedings to see what issues, if any, were preserved. At the hearing, Appellant and his counsel both spoke to the court. They presented mitigating factors and arguments. However, neither Appellant nor his counsel argued that the court failed to state its reasons for sentence on the record. It would thus appear that this first issue was waived.

¶ 9 Likewise, neither Appellant nor counsel claimed that total confinement was improper or that the court had failed to consider the statutory factors relating to such confinement. In fact, counsel even suggested that county incarceration might be proper. Appellant himself claimed that a jail term of twelve to twenty-four months would be more appropriate than a sentence of eighteen to thirty-six months. These comments take issue with the length and/or location of the sentence but they concede that total confinement of some length, in some location (county or state), would be proper. This would appear to waive Appellant's arguments regarding total confinement.

¶ 10 In short, there were no objections regarding Appellant's first two claims, although those claims are now presented on appeal. Thus, at least at this juncture, we would be inclined to find that Appellant waived these two contentions.

¶ 11 It is arguable that, even if Appellant waived these two arguments, he may have preserved his third argument that the sentence was excessive or disproportionate. After the court announced the sentence, Appellant did specifically complain on the record that the incarceration time was too long in light of his record. Also, as we just mentioned, he proposed a term of twelve to twenty-four months and his counsel suggested county custody. Although these remarks do not use the particular terms "excessive" or "disproportionate," they plainly make the point that the state penalty of eighteen to thirty-six months is too harsh.

¶ 12 In any event, there is another concern that will obviate the need to decide whether Appellant preserved his claim concerning excessiveness and proportionality. In fact, this additional consideration will trump our earlier inclination to find waiver of Appellant's other two claims. In particular, it appears that the trial court failed to advise Appellant concerning his right to file post-sentence motions. Once sentenced, Appellant had the right to file such motions within ten days and/or to appeal within thirty days. Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa.Super. 2003); Pa.R.Crim.P. 708(D). The sentencing court was required to advise Appellant of these rights. Pa. R.Crim.P. 708(C)(3). The court did explain that Appellant had thirty days to appeal but did not tell him that he had ten days to file a motion for reconsideration of sentence.

¶ 13 Had the court properly instructed Appellant, he may well have filed an appropriate motion raising the same three arguments he presents here. If Appellant had done so, we would find that he had preserved those claims. Instead, pursuant to the court's limited statement of his appellate rights, Appellant filed only this direct appeal, enunciating his arguments herein.

¶ 14 We will not conclude that Appellant forwent the opportunity to raise issues via post-sentence motions when the sentencing court did not tell him he could file such motions. See Commonwealth v. Anders, 155 Pa.Cmwlth. 508, 625 A.2d 730, 733 (1993) (holding that appellant did not waive the right to file post-verdict motions where trial judge advised him of appeal rights but did not advise him of right to file motions). Given that Appellant was unaware of the need to preserve claims in a motion for reconsideration, we find that he has not waived those claims on appeal. See also Commonwealth v. McCrosson, 392 Pa.Super. 261, 572 A.2d 791 (1990) (holding that failure to file post-trial motions did not waive appellate issues where trial court did not advise appellant of the need to preserve issues by motion).

¶ 15 Moreover, we note that the Commonwealth has not argued waiver but, instead, has addressed Appellant's arguments. The Commonwealth's brief and the record give us ample opportunity for meaningful judicial review of these claims.

¶ 16 Based on the foregoing analysis, we believe the fair and correct course is to find no waiver.

Concise Statement of Reasons for Allowance of Appeal

¶ 17 Appellant has included in his brief a statement of reasons for allowance of appeal. He has therefore met the third requirement for review of his sentence.

Substantial Question

¶ 18 If Appellant's concise statement raises a substantial question that the sentence is inappropriate under the sentencing code, this Court will grant permission to appeal and we will then consider the merits of Appellant's arguments. Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.2004).

¶ 19 We conduct a case-by-case analysis to determine what allegations constitute a substantial question. Id. In general, an appellant raises a substantial question by advancing a plausible claim that the sentencing court's actions were inconsistent with a specific provision of the sentencing code or were contrary to the fundamental norms underlying the sentencing process. Id.

¶ 20 This Court does not include or exclude an entire class of questions as being or not being substantial. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 626, 627 (2002). Instead, we evaluate each question to determine whether or not it is substantial in the particulars of its own case. McAfee, 849 A.2d at 274.

¶ 21 Of course, we do not accept bald assertions of sentencing errors. Mouzon, 812 A.2d at 627. Rather, Appellant must support his assertions by articulating the way in which the court's actions violated the sentencing code. Id.

¶ 22 If this Court grants appeal and reviews the sentence, the standard of review is clear: sentencing is vested in the discretion of the trial court, and will not be disturbed absent a manifest abuse of that discretion. McAfee, 849 A.2d at 275. An abuse of discretion involves a sentence which was manifestly unreasonable, or which resulted from partiality, prejudice, bias or ill will. Id. It is more than just an error in judgment. Id.

¶ 23 We note that...