IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L O P I N I O N. BY: WRIGHT, J. February 19, 2014

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1 DO NOT PUBLISH Commonwealth v. Christian Ford - - Nos ; ; ; ; Wright, J. - - February 19, Criminal - - Pa.R.A.P. 1925(a). Defendant violated the terms of his parole and probation by being unsuccessfully discharged from a court mandated drug and alcohol treatment program and by missing a probation appointment. Sufficient evidence existed for the Court to find Defendant violated his parole and probation by a preponderance of the evidence. Imposition of a sentence following the revocation of parole or probation falls within the sound discretion of the trial court.

2 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : No ; v. : ; ; : CHRISTIAN FORD : O P I N I O N BY: WRIGHT, J. February 19, 2014 This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. Defendant, Christian Ford, claims that there was insufficient evidence to support the Court s finding that he violated his parole, and that the Court s sentence for the violation was manifestly excessive and an abuse of discretion. A review of the record and applicable law demonstrates that Defendant s claims lack merit and, therefore, his appeal should be dismissed. BACKGROUND On December 2, 2009, Defendant, Christian Ford, was sentenced on three separate dockets by the Honorable Michael J. Perezous. On docket number , after previously pleading guilty on July 14, 2009 to one count each of False Identification to a Law Enforcement Officer 1 and Possession of Drug Paraphernalia, 2 Defendant was given an aggregate sentence of one year of probation. On docket number , Defendant pled guilty to one count each of Theft by Unlawful Taking 3 and Criminal Mischief 4 and received an aggregate sentence of one year of probation, consecutive to the sentence on docket number On docket number , Defendant pled guilty to one count each Theft by Unlawful Taking, 5 Criminal 1 18 P.S. 4914(a) P.S (a)(32) Pa. C.S.A. 3921(a) P.S. 3304(a)(5) Pa. C.S.A. 3921(a).

3 Mischief, 6 and Criminal Trespass, 7 and received an aggregate sentence of time served to twenty three months followed by three years of probation. Within weeks, Defendant was arrested for Driving Under the Influence 8 and Driving While Operating Privilege is Suspended. 9 A capias was issued, and on July 26, 2010, Defendant was found in violation of his supervision. 10 Several months after his release from Lancaster County Prison, Defendant was charged on docket number with Possession of Drug Paraphernalia. 11 Once again, a capias was issued, and on June 2, 2011, Defendant was found in violation of his supervision. On June 16, 2011, Defendant pled guilty to the new charge and received a sentence of one year of probation. In addition to these first two new charge violations, Defendant has appeared before this Court on no less than five additional technical and new charge violations. On September 26, 2011, Defendant violated his supervision by failing to complete his required drug and alcohol treatment and by using cocaine. On March 1, 2012, Defendant once again violated his probation by failing to participate in drug and alcohol treatment and by missing a scheduled appointment with his Probation Officer. On June 12, 2014, Defendant pled guilty on docket number before Magisterial District Judge Denise Commins to one count of Theft by Deception 12 and received a sentence of one year of probation. On August 26, 2012, Defendant was found to have violated his probation by receiving the new charge, and by failing to appear for a scheduled probation appointment. On January 18, 2012, once again, Defendant violated his probation by failing a drug test P.S. 3304(a)(5) P.S. 3503(b)(1)(ii) P.S. 3892(b) P.S. 1543(b)(1). 10 Defendant pled guilty to the new charges on September 9, Pa. C.S.A (a)(32) P.S. 3922(a)(1). 2

4 Finally, on September 6, 2013, Defendant appeared before this Court for a Parole and Probation Violation Hearing on his seventh violation, the matter which is the subject of the instant appeal. At the Hearing, Senior Probation Officer Cheryl Hazzard, Defendant s assigned Probation Officer, testified that Defendant was unsuccessfully discharged from two drug and alcohol treatment programs that he was required to complete as a component of his supervision, and that he failed to appear for a scheduled appointment on May 30, (N.T. Parole/Probation Violation Hearing, 3:17 7:9.) Accordingly, Officer Hazzard issued a capias for the violations. (N.T. Parole/Probation Violation Hearing, 7:10-15.) Following Officer Hazzard s testimony, Defendant claimed that he did not agree with the court mandated drug and alcohol treatment that he was receiving, and admitted that he was discharged from Pennsylvania Counseling. (N.T. Parole/Probation Violation Hearing, 19:23 20:21.) Defendant then tried to excuse his discharge by stating that he began a different unapproved drug and alcohol treatment program. (N.T. Parole/Probation Violation Hearing, 19:21 20:21.) Finding Officer Hazzard s testimony credible, and considering Defendant s own admission that he was unsuccessfully discharged from Pennsylvania Counseling, the Court ruled that Defendant had violated the terms of his parole and probation. (N.T. Parole/Probation Violation Hearing, 27:19 28:17.) On September 23, 2013, a Sentencing Hearing was conducted on Defendant s parole and probation violations. At the Hearing, the Court revoked Defendant s parole and probation and re-sentenced him to a total aggregate sentence of six to twelve months of incarceration followed by two years of consecutive probation. (N.T. Parole/Probation Violation Sentencing, 7:15 8:7.) On October 3, 2013, Defendant filed a Post Sentence Motion to Modify Sentence, which Motion was denied on November 12, Following a timely Notice of Appeal of his sentence, on January 2, 2014 Defendant filed his Concise Statement of Matters Complained of 3

5 on Appeal. In his Statement, Defendant claims that there was insufficient evidence to support the Court s finding that he violated his parole, and that the Court s sentence for the violation was manifestly excessive and an abuse of discretion. DISCUSSION Defendant s first claim is that there was insufficient evidence to support the Court s finding that he violated his parole because the majority of Officer Hazzard s testimony presented at the Parole and Probation Violation Hearing was hearsay. Pennsylvania Courts have held that the Commonwealth establishes a probation violation meriting revocation when it shows, by a preponderance of the evidence, that the probationer s conduct violated the terms and conditions of his probation, and that probation has proven an ineffective rehabilitation tool incapable of deterring probationer from further antisocial conduct. Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008). During the Parole and Probation Violation Hearing, Officer Hazzard provided testimony that Defendant was unsuccessfully discharged from two drug and alcohol treatment programs that he was required to complete as a part of his supervision. Although defense counsel objected to this testimony, the Court held that, in the context of a probation violation hearing, hearsay was admissible. Upon further review, while ample reason existed to accept Officer Hazzard s testimony, the Court notes that it was remiss in not making a specific finding of good cause for admitting the hearsay evidence on the record. Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009). Nevertheless, even excluding all hearsay statements and testimony, Defendant s own testimony demonstrates that he was in fact discharged from a court mandated Drug and Alcohol Program. At the Parole and Probation Violation, Defendant specifically admitted that he was 4

6 discharged from his required treatment at Pennsylvania Counseling. (N.T. Parole/Probation Violation Hearing, 20:19-21.) Moreover, in an attempt to control the terms of his supervision, Defendant tried to excuse his discharge by stating that he enrolled in a different drug and alcohol treatment program without prior approval from Officer Hazzard. (N.T. Parole/Probation Violation Hearing, 19:21 20:21.) Additionally, even excluding the challenged hearsay and overlooking Defendant s own admissions, the Commonwealth still presented sufficient evidence for the Court to find that Defendant violated the terms of his supervision. Specifically, Officer Hazzard testified that, in addition to his failure to complete the required treatment programs, Defendant did not attend a scheduled probation appointment on May 30, (N.T. Parole/Probation Violation Hearing, 7:5-9.) Defendant did not contact Officer Hazzard after the missed appointment, instead, he appeared unannounced in the probation office five days later. (N.T. Parole/Probation Violation Hearing, 10:2-7.) While Defendant testified that Officer Hazzard canceled and failed to reschedule the missed appointment, the Court found Officer Hazzard s testimony substantially more credible than Defendant s, which was disjointed, accusatory and frequently confusing. Accordingly, based solely on Officer Hazzard s testimony that Defendant missed his probation appointment and excluding all hearsay statements, there was substantial evidence to find that Defendant violated the terms of his parole and probation by a preponderance of the evidence. Defendant s second claim is that his sentence for the parole and probation violation was manifestly excessive and an abuse of discretion. The essence of Defendant s claim is a challenge to the discretionary aspects of sentencing for which there is no automatic right of appeal. Commonwealth v. Marts, 889 A.2d 608, 611 (Pa. Super. 2005). Before a court may even consider the merits of a discretionary sentencing issue, a defendant first must demonstrate that: 5

7 (1) the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (2) a timely notice of appeal was filed; (3) Defendant fully complied with Pa. R.A.P. 2119(f); and (4) there was a substantial question that the sentence imposed was not appropriate under the Sentencing Code. Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008). As the procedural history illustrates, Defendant preserved the issue with a timely post sentence motion and filed a timely appeal. Additionally, Defendant filed a Concise Statement of Matters Complained of on Appeal with this Court in which he raises the sentencing issue. Giving Defendant the benefit of every doubt, we will assume for purposes of this appeal that he will likewise satisfy the requirements of Pa. R.A.P. 2119(f) by filing a separate statement with the Superior Court. Thus, the issue which must be addressed is whether there is a substantial question that the sentence imposed was not appropriate under the Sentencing Code. A determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Marts, 889 A.2d at 612. Generally, in order to establish a substantial question, an appellant must show actions by the sentencing court that were inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. Id. Moreover, a substantial question exists only where an aggrieved party can articulate clear reasons why the sentence imposed by the trial court compromises the sentencing scheme as a whole. Commonwealth v. Cunningham, 805 A.2d 566, 574 (Pa. Super. 2002) Defendant s claims that his sentence was too severe and an abuse of discretion do not present substantial questions to address on appeal. Defendant has failed to show any action by the Court that was contrary to the fundamental norms underlying the sentencing process. 6

8 Instead, Defendant s claims are bald assertions, unsupported by clear reasons as to how his sentence undermined the sentencing scheme as a whole. However, even if any of Defendant s challenges were considered substantial questions, Defendant s sentence was warranted under the circumstances. Generally, imposition of a sentence following a revocation of parole or probation falls within the sound discretion of the trial court. Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). Moreover, upon revocation of probation, 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. 42 Pa. C.S.A. 9771(b). Finally, a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Cunningham, 805 A.2d at 575. In contrast to Defendant s claims, the Court specifically selected a sentence that was consistent with the protection of the public, the gravity of the offenses, and Defendant s rehabilitative needs. The Court s sentencing analysis also incorporated all pertinent factors such as the character of Defendant, arguments of counsel, Defendant s own statement, and the statements of Defendant s mother and fiancé. (N.T. Parole/Probation Violation Sentencing, 7:12-14.) Particularly important to the Court in fashioning a sentence was Defendant s utter refusal, or inability, to comply with the terms of his supervision. Defendant has appeared before this Court on six prior occasions for violations of his parole and probation. While on supervision, Defendant has repeatedly received new charges, failed to participate in required treatment, and ignored the directives of his Probation Officer. As the Court noted at the Parole and Probation Violation Hearing, Defendant has, since the beginning of his supervision, 7

9 attempted to create his own program, complying with conditions when convenient and disregarding them when he deems appropriate. (N.T. Parole/Probation Violation Hearing, 33:16 34:9.) Given Defendant s repeated non-compliance, his sentence was appropriate, and indeed necessary, to vindicate the authority of the Court. CONCLUSION Since Defendant s claims of error lack merit, this Court respectfully requests that Defendant s appeal be dismissed. Accordingly, I enter the following: 8

10 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : No ; v. : ; ; : CHRISTIAN FORD : O R D E R AND NOW, this day of February, 2014, the Court hereby submits this Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. BY THE COURT: Attest: JEFFERY D. WRIGHT JUDGE Copies to: Trista M. Boyd, Assistant District Attorney Janice L.M. Longer, Esq., 120 North Shippen Street, Lancaster, PA 17602