Com. v. Ortega

• Decision Date: 17 May 2010
• Docket Number: No. 3292 EDA 2008.,3292 EDA 2008.
• Citation: 995 A.2d 879
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Charles A. ORTEGA, Appellant.
• Court: Pennsylvania Superior Court

995 A.2d 879

COMMONWEALTH of Pennsylvania, Appellee v. Charles A. ORTEGA, Appellant.

No. 3292 EDA 2008.

Superior Court of Pennsylvania.

Filed May 17, 2010.

COPYRIGHT MATERIAL OMITTED

John P. Cotter, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STEVENS, MUNDY, JJ., and McEWEN, P.J.E.

OPINION BY STEVENS, J.:

¶ 1 Appellant, Charles Ortega ("Ortega"), appeals from the judgment of sentence of 2½ to 8 years' imprisonment entered in the Court of Common Pleas of Philadelphia County after the court revoked his probationary sentence upon finding he had violated conditions of probation. Ortega raises several claims of error in which he argues that he was no longer on probation at the time of his alleged misconduct, that evidence was insufficient to prove the alleged misconduct, and that imposition of the revocation sentence violated his rights under the Double Jeopardy Clause of the Fifth Amendment because separate charges based on the alleged misconduct had earlier been dismissed. We affirm.

¶ 2 The transcript of Ortega's Violation of Probation ("VOP") hearing of September 26, 2008 indicates that, on January 13, 2004, a then eighteen year old Ortega entered into a negotiated guilty plea for Possession With the Intent to Deliver heroin and crack cocaine and was sentenced to a mitigated range guideline sentence of 5 to 23 months' incarceration to be followed by two years' reporting probation. Paroled on March 12, 2004, Ortega began reporting probation until, on May 4, 2004, he failed to report to his probation officer. Consequently, on September 13, 2004, wanted cards were issued for Ortega's arrest. N.T. 9/26/08 at 4-8.

¶ 3 Three and one-half years would pass before Ortega resurfaced. On December 14, 2007, a uniformed police officer with the Philadelphia Police Department apprehended Ortega for suspicion of drug possession and repeatedly supplying a false name during the narcotics investigation. N.T. 9/26/08 at 13. The officer placed Ortega in the back seat of the patrol car but did not handcuff him, as Ortega was using crutches because of a broken femur. N.T. at 15.

¶ 4 While en route to the police station, the officer overheard Ortega on his cell phone telling someone the current location of the patrol car. N.T. at 15-16. Ortega ignored the officer's order to end the call and, after the officer repeated the order, began banging on the car's interior partition and screamed "fuck you, pussy" at the officer. N.T. at 16. When the officer pulled over and opened the back door to confiscate the phone, Ortega first kicked the door and then delivered another kick that glanced off the officer's arm and hit him in the chest. N.T. at 17. At that moment, the officer flagged down a nearby police wagon and received assistance from two officers. N.T. at 17. Together, they managed to handcuff the uncooperative Ortega after employing pepper spray and informed him he was being arrested for assaulting an officer. N.T. at 17.

¶ 5 At Ortega's VOP hearing, the Commonwealth sought revocation of Ortega's probation and a sentence of incarceration for both technical violations of probation by absconding and his conduct toward his arresting officer. N.T. at 3. To establish technical violations, Ortega's probation officer testified that Ortega absconded two months after he was paroled, never reported, and never made any payments. N.T. at 3. It was the probation officer's recommendation that Ortega be incarcerated due to these technical violations. N.T. at 3.

¶ 6 Before the Commonwealth proceeded with the "Daisy Kates" portion of the hearing,¹ in which the arresting police officer would testify regarding the alleged assault, defense counsel raised a two-pronged objection to admission of his testimony. First, the testimony would be irrelevant because Ortega's two year term of probation expired prior to his December 14, 2007 arrest. Second, because the court had already dismissed the underlying charges of assault, it would be improper to base probation revocation on such evidence.

¶ 7 The Commonwealth contested the first argument on grounds that the term of probation remains open and continuing until a probationer actually serves the entire term. To rule otherwise would be to confer a benefit upon a probationer for absconding from supervision and liberating himself from all the conditions of his probation. The second argument also fails, the Commonwealth argued, for while a preliminary hearing saw the court downgrade the charges from aggravated assault to simple assault based on the merits, the court had bound the simple assault charge for trial. It was only thereafter, where the Commonwealth failed to secure a Standard Philadelphia Police Incident Report (Form 75-48), that the court dismissed the charges outright.

¶ 8 The court ruled that the absconder Ortega was still subject to an open sentence of probation at the time of the alleged assault, making the officer's testimony regarding Ortega's conduct while on probation relevant to the VOP proceedings. At the conclusion of testimony, the court deferred sentencing until it had the opportunity to review a presentence investigation report.

¶ 9 At the November 5, 2008 sentencing hearing, the court considered argument by respective counsel and stated the following reasons for its sentence:

THE COURT: Well, one of the things that concerns me was not just your behavior with the police officers, who have a difficult enough job to do that they should be assaulted when they are trying to do what they are obligated to do, protect the citizens of Philadelphia, but the fact that you were on my probation and you disappeared is of some concern to me. You just didn't fulfill the terms of your probation, which means you are not a good candidate for that, certainly.

Is there anything else you want to tell me?

DEFENDANT: No, Your Honor.

THE COURT: All right. For violating the terms of my probation, for absconding, for committing what I believe to be illegal behavior and this interaction with the police officers, which was the subject of that Daisy Kates hearing, I am going to sentence Mr. Ortega to serve not less than two and a half, no more than eight years, and that sentence will be served consecutive to the sentence that has been imposed by Judge Bright for an unrelated drug offense.

There will also be a $500 fine on that sentence, PWID, and this PWID, if the record isn't clear, that was a heroin case, so that carries a possible maximum sentence of 15 years. I don't think Mr. Ortega needs to be warehoused, but I think he needs to understand that one cannot assault police officers and expect not to suffer the consequences of that action, at least in this courtroom, and the behavior of the defendant in absconding for such a long period of time shows that I do agree with the Commonwealth's assertion that a community based sentence would not be appropriate for this defendant.

N.T. 11/5/08 at 19-20. The court thereafter denied Ortega's motion for reconsideration of sentence on November 10, 2008, and this timely appeal followed.

¶ 10 Ortega raises the following three issues on appeal:

I. WAS THE DEFENDANT ON PROBATION ON 12-14-07?

II. WAS THE EVIDENCE SUFFICIENT TO SHOW THAT THE DEFENDANT VIOLATED HIS PROBATION ON 12-14-07?

III. DID THE IMPOSITION OF A SENTENCE AT THE VIOLATION OF PROBATION (VOP) HEARING VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION, ALSO KNOWN AS THE DOCTRINE OF COLLATERAL ESTOPPEL WHEN APPLIED TO VOP PROCEEDINGS?

Brief for Appellant at 2.

¶ 11 The scope of review in an appeal following a sentence imposed after probation revocation is limited to the validity of the revocation proceedings and the legality of the sentence imposed following revocation. Commonwealth v. Infante, 585 Pa. 408, 419, 888 A.2d 783, 790 (2005). As Ortega's arguments implicate the validity of the revocation proceedings, we shall address his issues in turn.

¶ 12 As a preliminary matter, however, we must first address the Commonwealth's assertion that Ortega's appeal, which confines itself to challenging the court's consideration of his actions during arrest, is moot because the court's sentence was justifiable on technical violations alone. The extensive VOP hearing colloquy between the VOP court and defense counsel does reveal that defense counsel conceded the court possessed the authority to consider whether Ortega's absconder violation and other technical delinquencies occurring while on probation merited a revocation of probation sentence. See N.T. 9/26/08 at 9-10. It is also clear that the court determined Ortega's technical violations, serious and protracted as they were, made him unsuitable for another "community based sentence" of probation. N.T. at 20. Indeed, in light of 42 Pa. C.S.A. § 9771(c)(3),² we agree that the VOP court could have reasonably determined that revocation and a sentence of imprisonment for a defendant who absconded at the very outset of his probationary term and remained delinquent for three years was essential to vindicate the authority of the court. See Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.Super.2007) (acknowledging technical violations, where flagrant and indicative of an inability to reform, can support revocation and imprisonment).

¶ 13 Nevertheless, it is apparent from the record that the court did not base its sentence exclusively on evidence of Ortega's technical violations, as the court also gave great weight to the testimony that Ortega assaulted his arresting officer on December 14, 2007. We are therefore compelled to disagree with the Commonwealth's assertion that Ortega's appeal is moot, and we shall review his challenge on the merits for purposes of determining whether remand for another revocation hearing is necessary. See Commonwealth v. Mullins, 591 Pa. 341, 918 A.2d 82 (2007) (holding remedy for evidentiary problem at VOP hearing...