Commonwealth v. Huffman

• Decision Date: 06 January 2023
• Docket Number: 361 MDA 2022,362 MDA 2022,363 MDA 2022,J-A27044-22
• Parties: COMMONWEALTH OF PENNSYLVANIA v. NICHOLAS RAY HUFFMAN Appellant COMMONWEALTH OF PENNSYLVANIA v. NICHOLAS RAY HUFFMAN Appellant COMMONWEALTH OF PENNSYLVANIA v. NICHOLAS HUFFMAN Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA v. NICHOLAS RAY HUFFMAN Appellant COMMONWEALTH OF PENNSYLVANIA v. NICHOLAS RAY HUFFMAN Appellant COMMONWEALTH OF PENNSYLVANIA v. NICHOLAS HUFFMAN Appellant

Nos. 361 MDA 2022, 362 MDA 2022, 363 MDA 2022

J-A27044-22

Superior Court of Pennsylvania

January 6, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered January 31, 2022 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000417-2021, CP-28-CR-0000418-2021 CP-28-CR-0000501-2019

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Nicholas Ray Huffman, appeals the judgments of sentence imposed following a revocation of probation in each of the underlying matters. He challenges the discretionary aspects of his sentence. Upon review, we affirm.

At 10:57 p.m. on December 2, 2018, Chambersburg police officers responded to a report of an active domestic dispute at the home of Appellant's parents. Affidavit of Probable Cause for Criminal Complaint, CP-28-CR-000501-2019, 12/6/18. Appellant's mother alleged that he pushed her, causing her to strike her head on a small dresser, and then struck her four to five times on the left side of her head. Id. Appellant then tried to grab his sister before his father intervened. Id. Appellant's other sister made a five-minute recording of the dispute in which Appellant stated, "I will kill everybody if you call the cops," and admitted to pushing his mother. Id.

On October 28, 2019, Appellant pleaded guilty to terroristic threats as a misdemeanor of the first degree and simple assault as a misdemeanor of the second degree at CP-28-CR-0000501-2019.^[1] Written Guilty Plea Colloquy, CP-28-CR-0000501-2019, 10/28/19, 2. The parties left the sentence to the discretion of the court but agreed that the terms for each count would be designated to run concurrently and that the Commonwealth would "stand silent" at the time for recommendations at a deferred sentencing hearing. Id. On December 18, 2019, the court adopted Appellant's sentencing recommendation and imposed concurrent terms of twenty-four months' probation.^[2] Sentencing Orders, CP-28-CR-0000501-2019, 12/18/19; Appellant's Pre-Sentence Memorandum, CP-28-CR-0000501-2019, 12/9/19, 5.

On February 24, 2021, Appellant's probation officer notified the court of an impending violation of probation hearing. The alleged violations included that: (1) home visits resulted in the conclusion that Appellant had not been there for days and his whereabouts were unknown; (2) Appellant had admitted to daily heroin use for a two-week period; (3) Appellant left an in-patient treatment program after six days even though he was ordered to attend treatments until he was successfully discharged; (4) Appellant failed to report a change of address to his probation officer; (5) Appellant failed to provide documentation for completion of a mental health evaluation; and (6) Appellant failed to provide acceptable proof of employment. Gagnon II Notice, 2/24/21, 1-2.

Appellant was subsequently charged with new offenses committed on April 2, 2021. The Pennsylvania State Police responded to a report that Appellant had used a victim's debit card without authorization to withdraw $100 from an automated teller machine at a Sheetz store. Affidavit of Probable Cause for Criminal Complaint, CP-28-CR-0000417-2021, 4/3/21, 1-2. The victim informed the police that Appellant was inside her residence and appeared to "be under the influence." Id. at 1. A minor in the victim's home related that she observed Appellant's use of the debit card. Id. She also related that she observed him "buy drugs" at a Dollar Tree store. Id. Appellant allegedly admitted the allegations to a responding trooper, agreeing that he purchased heroin from his "usual drug dealer" to support his ongoing addiction. Id. at 2. When Appellant was subsequently processed in a Franklin County jail, a jail officer seized a capsule of suspected fentanyl from him. Affidavit of Probable Cause for Criminal Complaint, CP-28-CR-0000418-2021, 1.

On May 20, 2021, Appellant pleaded guilty to access device fraud as a misdemeanor of the first degree at CP-28-CR-0000417-2021, and knowing or intentional possession of a controlled substance (fentanyl/Schedule II narcotic) as an ungraded misdemeanor at CP-28-CR-0000418-2021.^[3] Order, CP-28-CR-0000417-2021, 5/20/21, 1; Order, CP-28-CR-0000418-2021, 5/20/21, 1. In exchange for the pleas, the Commonwealth agreed to nolle prosse additional charges, recommend concurrent sentences of thirty-six months' restrictive probation with time served for access device fraud and twelve months' restrictive probation with time served for the controlled substance charge, and recommend probation revocation sentences of thirty-six months' restrictive probation with time served for terroristic threats and twenty-four months' restrictive probation with time served for simple assault. Written Guilty Plea Colloquies, CP-28-CR-0000417-2021 & CP-28-CR-0000418-2021, 1-2. On the same date, the court revoked Appellant's probation at CP-28-CR-0000501-2019, and imposed the agreed-upon terms of probation.^[4] Sentencing Orders, CP-28-CR-0000501-2019, CP-28-CR-0000417-2021 & CP-28-CR-0000418-2021, 5/20/21, 1; Order of Court, CP-28-CR-0000501-2019, 5/20/21, 1.

On October 19, 2021, Appellant's probation officer notified the court of another impending violation of probation hearing. The alleged grounds for the violation were that: (1) Appellant was unsuccessfully discharged from a court-ordered inpatient drug and alcohol treatment program on August 2, 2021; (2) Appellant was unsuccessfully discharged from a different drug and alcohol treatment program on September 14, 2021; and (3) Appellant was unsuccessfully discharged from the Good Wolf Treatment Court on September 17, 2021.^[5] Notification of Hearing, 10/19/21, 1. Present counsel was subsequently appointed due to a conflict of interest. Order of Court, 10/22/21, 1.

At the ensuing hearing, Appellant waived a hearing on the determination of a probation violation and admitted that he was unsuccessfully discharged from inpatient drug and alcohol treatment programs at Concept 90 and Pyramid Bellevue, and was unsuccessfully discharged from the Good Wolf Treatment Court. N.T. 1/31/22, 4-5. On that basis, the court found him in violation of his probation, and proceeded to resentence him. Id. at 5-6. The court imposed twelve to sixty months' imprisonment for terroristic threats and concurrent imprisonment terms of six to twenty-four months for simple assault, six to twenty-four months for access device fraud, and three to twelve months for knowing or intentional possession of a controlled substance.^[6] Id. at 23-25; Sentencing Orders, 1/31/22.

The court prefaced the imposition of the sentence with the following remarks:

THE COURT: All right. The record should reflect the Court has taken several minutes here to fashion the sentences to be imposed. We have previously reviewed prior to the hearing the intermediate violation summary sheet and the attachments hereto.

We are familiar with the Defendant's participation in the Good Wolf Treatment Court as we are the primary judge presiding over the Good Wolf Treatment Court. We are also aware of his progress or lack thereof in the program as we were -- the judge that terminated the Defendant's participation in the Good Wolf Treatment Court as reflected in the packet.

Mr. Huffman, your attorney has pointed out some legal precepts in your case. We are generally aware of those.

First, the statute cited by your attorney appropriately dealing with the considerations for the Court when any sentence of total confinement is considered after a representation of probation. Those consideration[s] are whether the Defendant has been convicted of another crime or the conduct of the Defendant indicates that it is likely that he will commit another crime if he is not in prison or such sentence is essential to [v]indicate the authority of the Court, which I don't believe there is any dispute that you have not been convicted of a new offense.

So the question for the Court is whether we can find that your conduct indicates that it is likely that you will commit another crime if you are not in prison -- and/or the sentence of total confinement is necessary to [v]indicate the authority of the Court.

We listened intently to your statement. And what I listen for, particularly when Defendants have written something out, as I often tell participants in the Good Wolf Treatment Court is because writing is a deliberative process. It takes time. You must think about what you are saying, what you are trying to communicate. And it affords you an opportunity to really think about what you are saying.

So when I have Defendants come before me whether it is Good Wolf Treatment Court or any other type of proceeding and have something written out, I listen very intently because that is the best insight into what you are thinking because you have to take time. You have to take time to write and deliberate upon what you wanted to say.

And of particular interest to me in what you wrote is a couple of things. The first of which is I did not hear to any great extent words of contriteness, words of understanding, words of acceptance, words of realization. And I took notice of that because what appears to be lost on you, Mr. Huffman, is the common denominator in the problems in your life is you. You have your own particular view of what happened and then in an isolated circumstance that view may be just as likely as any other to be true.

But the more circumstances in which you find yourself having problems, the less likely it is that is some external

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