Commonwealth v. Lucky

229 A.3d 657

COMMONWEALTH of Pennsylvania, Appellee

v.Aaron LUCKY, Appellant

No. 1672 EDA 2018

Superior Court of Pennsylvania.

Argued November 13, 2019

Filed February 13, 2020

Jennifer J. Tobin, Philadelphia, for appellant.

Thomas C. Mandracchia, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

Aaron Lucky (Appellant) appeals from the judgment of sentence of three and one-half to seven years of incarceration entered following the revocation of his probation. Upon review, we vacate the judgment of sentence and remand for resentencing.

We glean the following factual and procedural background from the record. On January 23, 2014, Appellant pleaded guilty to one count of third degree felony retail theft¹ for stealing $120 worth of body wash from a drugstore in Philadelphia. On March 13, 2014, the trial court sentenced Appellant to 6 to 23 months of county incarceration, followed by three years of reporting probation. On June 2, 2014, Appellant was granted parole.

Subsequently, a bench warrant was issued for Appellant based on his failure to report to his probation officer and one failed drug test. Appellant was arrested on February 29, 2016. On March 18, 2016, after a Gagnon I² hearing, the revocation court found Appellant in technical violation of his probation. N.T., 3/18/2016, at 21. The revocation court deferred sentencing pending the completion of pre-sentence investigation and mental health evaluation reports. Id. at 21-22. At a hearing on June 1, 2016, the revocation court revoked Appellant's probation and sentenced Appellant to a statutory maximum term of three and one-half to seven years of incarceration. Appellant did not file post-sentence motions or a direct appeal.

On December 19, 2016, Appellant timely filed a pro se petition seeking relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546, claiming, inter alia , ineffective assistance of counsel for failure to present witnesses and other evidence at his June 1, 2016 sentencing hearing. Counsel was appointed and filed an amended PCRA petition on September 19, 2017, which included additional claims relating to counsel's ineffectiveness at the sentencing hearing, as well as counsel's failure to file post-sentence motions or a direct appeal. On March 2, 2018, with the agreement of the parties, the PCRA court granted, Appellant a new sentencing hearing. Supplemental pre-sentence investigation and mental health evaluation reports were ordered.

The resentencing hearing was held on May 4, 2018. At the hearing, Appellant presented the testimony of his employer and mother. Appellant was working about 40-50 hours per week for a retail supply company at the time of his arrest for violation of his probation. N.T., 5/4/2018, at 10, 12-13. Appellant's employer testified that Appellant was a "very hard-honest good worker," was "good with people," went "way above and beyond" on the job, and was punctual. Id. at 13. His employer testified that he had a full-time job offer waiting for Appellant upon his release from prison. Id. at 13-14.

Appellant's mother, who is in her seventies, testified that before and during Appellant's probation, he assisted his mother on a regular basis, performing chores such as cleaning, cooking, and shopping. Id. at 19. She also testified that she loves Appellant and he is "very good" to her, her husband, and Appellant's siblings. Id. at 20, 32.

In addition, Appellant's counsel offered medical records and information relating to Appellant's significant medical needs. Id. at 23. During argument, Appellant's counsel asked the resentencing court to reconsider its prior sentence of total confinement and to impose a sentence which amounted to time-served, with possibly one year of probation, because Appellant had already served about two years and seven months of incarceration on this conviction. Id. at 24-25. His counsel argued that the factors to consider in resentencing Appellant were the nature of his underlying offense, retail theft; that his probation violations were technical, i.e. , failure to report and one failed drug test; that he has a job waiting for him upon release; that he has a loving and supportive family; and that his serious medical needs could be better treated outside of prison. Id. at 24.

The Commonwealth joined Appellant's request for a time-served sentence with a period of probation, and indicated on the record that it supported Appellant's release and return to work.³ Id. at 26-27.

Next, Appellant addressed the court in allocution. He apologized and took responsibility for his conduct that resulted in the technical probation violations. Id. at 31. Appellant, who is in his fifties, also highlighted his lack of any further criminal charges or convictions while on probation, his completion of a vocational program, his employment history, the length of time he had already served on the retail theft conviction, his medical needs, and his relationship with his aging parents. Id. at 28-35.

The resentencing court then considered the pre-sentence investigation report, which included Appellant's extensive criminal history dating back to 1982, and indicated that Appellant had been found guilty of two misconduct charges while incarcerated in 2016 and 2017, that Appellant can be manipulative and uncooperative, and that Appellant is at high risk for reoffending. Id. at 35-36, 38. The resentencing court also considered Appellant's mental health evaluation report, including an evaluator's prognosis of Appellant as "guarded;" the conduct which resulted in technical probation violations; his employment history and how it did not correspond to what had been reported; his poor health; his past drug use which appeared to be in remission; and his apparent lack of progress in completing certain programs while incarcerated. Id. at 35-39.

The resentencing court then imposed a sentence of two and one-half to five years of incarceration, with credit for time served, followed by two years of probation. Id. at 40-41. After Appellant's counsel clarified the sentence with the resentencing court, Appellant asked for permission to address the court, which was allowed. Id. at 42-43. Appellant asked questions about the length of the sentence that the court had just imposed, and expressed his view that the new sentence was really the same as the June 1, 2016 sentence, in terms of the overall period of time Appellant would be subject to supervision. Id. at 43. The judge interrupted Appellant, asking Appellant whether he was "seriously going to argue with" her when she had just reduced his sentence, and stating she had not been inclined to do so. Id. at 44. Appellant expressed he was upset by the sentence especially given the Commonwealth's recommendation of a time-served sentence. Id. at 45-46. At this point, the resentencing court stated it had reconsidered the sentence and re-imposed the statutory maximum sentence of three and one-half to seven years of incarceration, with the same conditions.^{4 , 5} Id. at 47.

On May 14, 2018, Appellant filed a post-sentence motion seeking reconsideration of his sentence, which set forth the same claims of error Appellant now raises on appeal. The court denied the motion for reconsideration by order dated June 19, 2018. On June 4, 2018, Appellant timely filed the instant appeal. Both Appellant and the resentencing court complied with Pa.R.A.P. 1925.⁶

On appeal, Appellant presents the following four issues⁷ for our consideration.

a. Did not the [resentencing] court err, abuse its discretion, and violate general sentencing principles when, following a revocation of probation for technical violations, the [revocation] court imposed the statutory maximum sentence for retail theft, which sentence was unduly harsh, and manifestly excessive, unreasonable, and disproportionate to the nature of the underlying offense and the probation violations, and when the court failed to take into account and weigh all mitigating, relevant and necessary factors to be considered by a sentencing court, and when confinement in a state correctional facility for the term imposed is inconsistent with the aims of Pennsylvania's sentencing laws and is violative of Appellant's right to due process under the United States and Pennsylvania Constitutions?

b. Did not the [resentencing] court violate the requirements of 42 Pa.C.S. § 9771(c) and the fundamental norms of sentencing by imposing a sentence of total confinement when 1) Appellant had not been convicted of a new crime; 2) Appellant's conduct did not demonstrate that he would commit a new crime if not incarcerated; and, 3) incarceration was not essential to vindicate the authority of the court?

c. Did not the [resentencing] court err when it imposed a manifestly excessive and unreasonable sentence and failed to articulate in open court at the time of sentencing adequate reasons for the sentence imposed and failed to take into account and weigh the relevant sentencing factors, including the needs of community safety, the gravity of the offense as it relates to the victim, and the rehabilitative needs of [ ] Appellant, as required by 42 Pa.C.S. § 9721(b) ?

d. Was not the sentence imposed manifestly excessive and unreasonable, the product of an abuse of discretion by the court, and violative of Appellant's due process rights under the United States and Pennsylvania Constitutions, as it was not based on factors set forth in the sentencing code and, instead, was the result of the [resentencing] court's partiality and bias against, or ill will towards, Appellant, as reflected throughout the proceedings in this case?

Appellant's Brief at 3-5 (some capitalization altered).

These issues present a challenge to the discretionary aspects of Appellant's sentence, which we consider mindful of the following.

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence

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