Commonwealth v. Flowers

• Decision Date: 24 October 2016
• Docket Number: No. 3 MDA 2016,3 MDA 2016
• Citation: 149 A.3d 867,2016 PA Super 230
• Parties: Commonwealth of Pennsylvania, Appellee v. Michael A. Flowers, Appellant
• Court: Pennsylvania Superior Court

149 A.3d 867
2016 PA Super 230

Commonwealth of Pennsylvania, Appellee
v.
Michael A. Flowers, Appellant

No. 3 MDA 2016

Superior Court of Pennsylvania.

Submitted May 31, 2016
FILED OCTOBER 24, 2016

Donna M. DeVita, Public Defender, Scranton, for appellant.

John H. Scanlon, IV, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: STABILE, J., SOLANO, J.,

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and FITZGERALD, J.^*

OPINION BY SOLANO, J.:

Appellant, Michael A. Flowers, appeals from the judgment of sentence entered following the revocation of his placement in State Intermediate Punishment,¹ which was imposed after he pled guilty to four counts of theft by unlawful taking.² For the reasons that follow, we vacate Appellant's judgment of sentence and remand for re-sentencing.

The trial court summarized the factual and procedural history relevant to this case as follows: Under Docket No. CP–35–CR–0002248–2011, Appellant was charged with four counts of Theft by Unlawful Taking, in violation of 18 Pa. C.S. § 3921(a), and four counts of Receiving Stolen Property, in violation of 18 Pa.C.S. § 3925(a). These charges stemmed from a July 15, 2011 report to Scranton Police in which the victim stated that her son discovered a bag of her jewelry in Appellant's possession when Appellant was in the hospital. Upon further investigation, Scranton Police discovered additional jewelry owned by the victim that Appellant sold at a local pawn shop. Trial Court Opinion, 3/1/16, at 1-2.

On January 26, 2012, Appellant entered an open guilty plea to four counts of Theft by Unlawful Taking in the Lackawanna County Drug Treatment Court, which is designed to help certain illegal drug users receive treatment, achieve drug abstinence, and ultimately have their cases dismissed. At that time, the remaining charges against Appellant were withdrawn.

On October 1, 2013, Appellant was terminated from the Lackawanna County Treatment Court program, based upon the following violations:

5/9/2012: Missed color [a drug testing requirement] and appointment with Tony Villano, sanction[ed] to one weekend in Lackawanna County prison.

5/18/2012: Admitted to using suboxone and heroin, placed in Lackawanna County prison, assessed for treatment.

9/29/2012: Missed color, week sanction.

10/11/2012: Tested positive for suboxone, placed in Lackawanna County prison.

2/2/2013: Tested positive for opiates at Salvation Army, placed in Lackawanna County prison, allowed re-entry to Salvation Army program on 2-25-13.

6/26/2013: [Appellant] caught stealing from Salvation Army, and admitted to doing so; placed in Lackawanna County prison.

Trial Court Opinion, 3/1/16, at 2-3. Appellant's guilty plea was accepted and sentencing was deferred pending referral to the Department of Corrections for an evaluation and eligibility assessment to determine Appellant's potential suitability for State Intermediate Punishment (SIP), a two-year program designed to move offenders from confinement to in-patient treatment, then to supervised out-patient treatment, and ultimately to reintegration into the community. Id. at 3.

On May 13, 2014, the trial court received the Department of Corrections' recommendation that Appellant would benefit from the SIP program. Thereafter, on June 9, 2014, the court sentenced Appellant on Count One to two years in the SIP program. It sentenced him to two years' probation each on Counts Two, Three, and

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Four, to run consecutively, for an aggregate sentence of two years in SIP followed by six years' probation. The court also ordered restitution in the amount of $4,300.00. Id . at 3.

On September 18, 2015, the court received notice that Appellant had been expelled from the SIP program due to his failure to comply with administrative and disciplinary guidelines, including repeated violations regarding substance abuse during SIP. On November 9, 2015, the court resentenced Appellant as follows: 2-5 years' incarceration on Count One, 1-3 years' incarceration plus two years' probation on Count Two, 1-2 years' incarceration plus two years' probation on Count Three, and two years' probation on Count Four, for an aggregate sentence of 4-10 years' incarceration, followed by six years' probation. On November 18, 2015, Appellant filed a timely Motion for Reconsideration of Sentence, which the court denied by an order dated December 1, 2015, and entered on December 2, 2015. Id. at 3-4. On December 28, 2015, Appellant filed a Notice of Appeal to this Court.

On appeal, Appellant raises two sentencing issues for our review:

1. Whether the lower court failed to articulate sufficient reasons or any reasons for the sentences imposed?

2. Whether the sentences imposed by the lower court were excessive in light of all of the factors presented?

Appellant's Brief at 4. In an opinion, the sentencing court expressed the view that, in light of Appellant's termination from SIP for repeated drug use violations, the reasons for the sentences were clear and that it neither imposed an illegal sentence nor abused its discretion. Trial Court Opinion, 3/1/16, at 10-14.

Jurisdiction

We begin by determining whether we have appellate jurisdiction. Appellant challenges the discretionary aspects of his sentence. Our jurisdiction to hear such a challenge is discretionary, and we may not exercise our discretion to review such an issue unless we first determine that: (1) the appeal is timely; (2) Appellant preserved his issue; (3) Appellant's brief includes a concise statement of the reasons relied upon for allowance of an appeal with respect to the discretionary aspects of his sentences, as required by Rule 2119(f) of the Pennsylvania Rules of Appellate Procedure ; and (4) that concise statement raises a substantial question that the sentences were inappropriate under the Sentencing Code. Commonwealth v. Colon , 102 A.3d 1033, 1042–43 (Pa. Super. 2014).³ If the appeal satisfies each of these prerequisites,

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we may accept it and proceed to the substantive merits of the case. Id.

The second, third, and fourth of these requirements are met here. Appellant preserved his sentencing challenge in his November 18, 2015 petition for reconsideration of sentence, and he included a separate Rule 2119(f) concise statement in his appellate brief. See Appellant's Brief at 9-10. In addition, Appellant has raised a substantial question for our review by asserting that the trial court failed to state adequate reasons on the record for Appellant's sentence. SeeCommonwealth v. Oliver , 693 A.2d 1342, 1347–48 (Pa. Super. 1997) (claim that sentencing court failed to state adequate reasons for sentence imposed presents substantial question regarding appropriateness of sentence).

The pivotal question, then, is whether Appellant filed a timely notice of appeal. Like most other appeals, an appeal from a sentence imposed after revocation of intermediate punishment must be filed within 30 days after imposition of the new sentence. See Pa. R. App. P. 903(a). In contrast to other sentencing situations in which the filing of a post-sentence motion extends the appeal period until after the motion has been decided, see Pa. R. Crim. P. 720(a)(2), the filing of a motion to modify a sentence imposed after revocation of parole or intermediate punishment does not toll the 30-day appeal period. Pa. R. Crim. P. 708(E).⁴ Here, Appellant was sentenced on November 9, 2015. He moved for reconsideration of his sentence on November 18, 2015, and the court denied that motion in an order dated December 1, 2015, which was stamped as entered on December 2, 2015. Appellant appealed on December 28, 2015, which was within 30 days of the order denying his motion for reconsideration, but more than 30 days from the November 9, 2015 order imposing Appellant's sentence. Accordingly, Appellant's appeal was untimely.

Appellant argues, however, that he filed his appeal late because the trial court provided him with incorrect information about the appeal deadline, and that his late filing therefore should be excused because the misinformation constituted a breakdown of the judicial process. See Appellant's Brief at 6-7, citingCommonwealth v. Parlante , 823 A.2d 927, 929 (Pa. Super. 2003), and Commonwealth v. Coolbaugh , 770 A.2d 788, 791 (Pa. Super. 2001). Notably, the Commonwealth agrees. See Commonwealth's Brief at 3. After careful review of the record, we also agree.

Rule 704(C)(3) of the Rules of Criminal Procedure provides that at the time of sentencing, the sentencing judge “shall determine on the record that the defendant has been advised of ... the right to file a post-sentence motion and to appeal, of the time within which the defendant must exercise those rights , and of the right to assistance of counsel in the preparation of the motion and appeal. [Emphasis added.]” The transcript of the sentencing proceeding on November 9, 2015 discloses that the trial court did not provide Appellant with information about when he could appeal, but that the court instead presided while the following colloquy occurred between Appellant and his trial counsel:

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[DEFENSE COUNSEL]: Michael, you have a

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