Commonwealth v. Starr

234 A.3d 755

COMMONWEALTH of Pennsylvania, Appellee

v.Edmund STARR, Appellant

No. 748 WDA 2019

Superior Court of Pennsylvania.

Submitted March 31, 2020

Filed June 23, 2020

Justin Thomas Romano, Pittsburgh, PA, for Appellant.

Michael Wayne Streily, Allegheny County District Attorney's Office, Pittsburgh, PA, for Appellee.

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

OPINION BY STRASSBURGER, J.:

Edmund Starr (Appellant), appeals nunc pro tunc from his November 28, 2016 judgment of sentence, which the trial court imposed after revoking Appellant's probation. We affirm.

In a prior memorandum, we provided an overview of the relevant facts and procedural history.

On February 20, 2014, Appellant entered a negotiated guilty plea to unlawful contact with a minor, statutory sexual assault, corruption of minors, indecent assault with a person less than 16 years old, and selling or furnishing alcohol to a minor, in connection with Appellant's inappropriate conduct with his wife's 15-year-old sister. The court sentenced him on March 3, 2014, to the negotiated aggregate term of 8 to 16 months’ imprisonment, plus 10 years’ probation. The terms of Appellant's probation included special conditions, including a condition restricting his internet access. [As part of his plea, Appellant signed a form specifically acknowledging that he would be bound by the special conditions while on probation. He also verbally acknowledged the special conditions on the record¹ ].

While on probation, Appellant committed numerous technical violations, including repeated violations of the internet restriction. On November 28, 2016, the court held a revocation hearing, revoked Appellant's probation, and resentenced him to an aggregate term of 2 to 6 years’ imprisonment, plus 6 years’ probation, with the same [ ] internet access restriction.

Appellant initially filed a timely direct appeal on December 27, 2016[, but later discontinued it voluntarily].. On December 12, 2017, Appellant filed a counseled petition pursuant to the Post Conviction Relief Act ("PCRA") at 42 Pa.C.S.[ ] §§ 9541-9546, seeking to reinstate his post-sentence motion rights nunc pro tunc . [ ] In the PCRA petition, Appellant claimed he wanted to challenge the condition of his probation restricting his internet access. The Commonwealth did not oppose Appellant's request. Thus, the court entered an order on January 16, 2018, restoring Appellant's post-sentence motion and attendant rights nunc pro tunc .

On January 22, 2018, Appellant timely filed a post-sentence motion nunc pro tunc , which the court denied that day. Appellant filed a counseled notice of appeal [ ]on February 20, 2018.

Commonwealth v. Starr , 209 A.3d 541 (Pa. Super. 2019) (unpublished memorandum at 1). On January 30, 2019, this Court dismissed Appellant's appeal because it had been untimely filed. Id.

On February 14, 2019, Appellant filed a second PCRA petition and sought to restore his appellate rights based upon counsel's ineffectiveness in filing a late notice of appeal. The trial court granted his petition on April 24, 2019, and appointed new counsel to represent Appellant. Appellant filed timely a notice of appeal, and Appellant's appeal is now properly before us.²

In this appeal, Appellant raises the following four issues.

I. Whether the trial court abused its discretion when it imposed an internet restriction as a special condition of Appellant's probation revocation sentence when there exists no nexus between the crimes charged and access to the internet.

II. Whether the underlying record is sufficient to support the imposition of an internet restriction as a special condition of Appellant's revocation sentence when there was no showing by the Commonwealth that the special condition was reasonably tailored to Appellant's unique rehabilitation needs and no consideration was given to principles of individualized sentencing.

III. Whether the special condition of Appellant's probation[,] which requires that "[Appellant] shall not possess or use a computer with access to any" online computer service," or any other electronic device that allows internet connections and/or access at any location (including employment) without the prior written approval of the probation/parole officer...[,]" is effectively a blanket internet ban, which is constitutionally overbroad and in violation of [Appellant's] rights under the First Amendment of the United States Constitution and Article 1, Section 7 of the Pennsylvania Constitution.

IV. Whether the sentence imposed for a violation of a special condition of probation should be vacated when the special condition found to be violated was an internet restriction[,] which was improperly imposed.

Appellant's Brief at 6-7 (answers omitted).

"[I]n reviewing an appeal from a judgment of sentence imposed after the revocation of probation, this Court's scope of review includes the validity of the hearing, the legality of the final sentence, and if properly raised, the discretionary aspects of the appellant's sentence." Commonwealth v. Kuykendall , 2 A.3d 559, 563 (Pa. Super. 2010).

Challenge to Discretionary Aspects of Sentence

We begin by reviewing Appellant's challenges to the discretionary aspects of his sentence presented in issues one and two. "An appellant wishing to appeal the discretionary aspects of a probation-revocation sentence has no absolute right to do so but, rather, must petition this Court for permission to do so." Commonwealth v. Kalichak , 943 A.2d 285, 289 (Pa. Super. 2008). Before this Court can address such a discretionary challenge, an appellant must invoke this Court's jurisdiction by establishing that (1) the appeal was timely filed; (2) the challenge was properly preserved by objecting during the revocation sentencing or in a post-sentence motion; (3) his or her brief includes a concise statement of the reasons relied upon for allowance of appeal of the discretionary aspects of the sentence pursuant to Pa.R.A.P. 2119(f) ; and (4) the concise statement raises a substantial question that the sentence is inappropriate under the Sentencing Code. Commonwealth v. Swope , 123 A.3d 333, 338 (Pa. Super. 2015).

Instantly, Appellant has satisfied the first three requirements by timely filing a post-sentence motion challenging the restrictiveness and reasonableness of the sentence nunc pro tunc , timely filing a notice of appeal nunc pro tunc , and including a Rule 2119(f) concise statement in his brief. Thus, we examine whether Appellant has presented a substantial question for our review.

In his Rule 2119(f) statement, Appellant asserts that the imposition of a broad internet restriction as a condition of his probation violates 42 Pa.C.S. § 9754,³ insomuch as the trial court failed to consider the nature and elements of the underlying crime, Appellant's unique rehabilitative needs, and whether the sentence helps facilitate his rehabilitation. Appellant's Brief at 20-21. This presents a substantial question for our review. See Commonwealth v. Houtz , 982 A.2d 537, 539 (Pa. Super. 2009).

Before we delve into Appellant's arguments, we note what Appellant is not challenging in this appeal. Appellant does not challenge the trial court's decision to sentence him to prison, or the length of his prison or probation sentence. He solely challenges the trial court's discretion in sentencing him to a probation sentence that includes a condition restricting his ability to use the internet and computer devices that connect to the internet.

Appellant's argument is two-fold. First, he argues that the imposition of a broad internet restriction was an abuse of the trial court's discretion, because there is no nexus between the internet and Appellant's crimes for which he was serving probation (unlawful contact with a minor and statutory sexual assault). Appellant's Brief at 21-22 (citing Houtz , 982 A.2d at 540 (holding that a broad internet restriction without a nexus to the crime is punitive, unduly restrictive, and incompatible with freedom of conscience)). Appellant contends the trial court abused its discretion in imposing an internet ban that substantially impairs Appellant's ability to function in modern society without having any relation to his crimes. Appellant's Brief at 23-24.

Appellant's second related argument is that the internet restriction is not tailored to meet Appellant's particular rehabilitative needs, and asserts that the Commonwealth did not introduce any evidence regarding the need for an internet ban for Appellant. Appellant's Brief at 25-26. Appellant argues that the ban is a "one-size-fits-all" approach to sentencing individuals who committed sex crimes, which is imposed upon individuals who participate in SOC in contravention of section 9754 without regard to individual rehabilitative needs. Id. He emphasizes that the ban restricts more activity than is necessary to protect society from misconduct on the internet and prevents Appellant from engaging with the modern world. Id.

We review Appellant's challenge to the discretionary aspects of his sentence following the revocation of his probation using the following standard.

The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment - 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.

Commonwealth v. Simmons , 56 A.3d 1280, 1283-84 (Pa. Super. 2012).

This Court has stated the following regarding a condition of probation.

A probation order is unique and individualized. It is constructed as an alternative to imprisonment and is designed to rehabilitate a criminal defendant while still preserving the rights of law-abiding citizens to be secure in their persons and property. When conditions are

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