Commonwealth v. Williams

1

COMMONWEALTH OF PENNSYLVANIA v. DENNIS WILLIAMS Appellant

No. 717 EDA 2023

No. J-S02045-24

Superior Court of Pennsylvania

February 9, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered February 14, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005633-2007

BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

STEVENS, P.J.E.

Appellant Dennis Williams, appeals from the judgment of sentence entered in the Court of Common Pleas of Delaware County following the revocation of his probation. After a careful review, we affirm.

The relevant facts and procedural history are as follows: On September 13, 2007, the Commonwealth filed an Information charging Appellant with one count of possession with the intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30), one count of firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1), and one count of criminal conspiracy, 18 Pa.C.S.A. § 903(a)(1). On February 22, 2010, Appellant entered a negotiated guilty plea to all three charges, and on that same date, he was sentenced to an aggregate of twenty-four months to forty-eight months in prison to be followed by five years of probation. In 2012, Appellant was paroled, and he began serving his term of probation on June 7, 2013.

On February 22, 2014, while he was on probation for the instant matter, Appellant was arrested in the state of Delaware for possession of a firearm and related charges, and the state of Delaware immediately took Appellant into custody. On April 16, 2014, the trial court in Pennsylvania issued a bench warrant for Appellant's arrest due to the probation violation in the instant case. ^[1] On March 13, 2015, Appellant was convicted of the offenses in the state of Delaware, and he was sentenced to a term of prison.

On October 20, 2022, Appellant "was released from [the state of] Delaware" and immediately transferred "to Pennsylvania state prison" on the bench warrant. N.T., 2/14/23, at 6. On February 14, 2023, Appellant, who was represented by counsel, proceeded to a Gagnon II^[2] hearing.

At the hearing, Appellant argued the trial court should "heavily" consider the nine years Appellant already served in the Delaware state prison for the gun offense, which led to the revocation proceedings in the instant matter. N.T., 2/14/23, at 6. Appellant further argued he had been in a Pennsylvania state prison for the last four months, and this should constitute "time served for the [probation] violation." Id. at 7. Appellant argued there were numerous mitigating factors for the trial court to consider in imposing Appellant's revocation sentence. Specifically, Appellant's counsel informed the trial court of the following (verbatim):

During [Appellant's] time in custody in [the state of] Delaware he used his time productively. He would also like to explain to Your Honor what he did in custody, and his plans for when he is released. He obtained his [inaudible] license, he obtained a cosmetology degree, he has plans for when he is released to work at Servpro doing fire and water restoration damage, so he has a job for when he gets out. He knows where he's going to be living, he will be living with his aunt, Shirley Butler, in Chester, eventually he wants to move in with his mother in [the state of] Delaware, and he does have three more years of probation for his Delaware state case, so he will be on supervision for the next three years for that case. I believe that is sufficient to ensure the safety of the community. I understand that this is a serious violation, but he has used his time productively in these nine years and shown that he does not need any additional punishment in terms of confinement. If Your Honor was not inclined to impose simply the time served, I would be asking for three years of probation to run concurrently with the Delaware state case.

Id.

The parole agent recommended the trial court impose a period of confinement for the instant matter. Id. at 8. The Commonwealth indicated that it concurred with the parole agent and noted that Appellant had just started the five-year probationary period of his original sentence in the Pennsylvania case when he was arrested for "shots fired" in the Delaware state case. Id. at 9. The Commonwealth averred that, if the trial court considered the imprisonment for the Delaware state conviction as "time served" for the Pennsylvania revocation matter, Appellant "would actually be given a benefit" from committing another crime. Id. at 10-11.

The trial court then afforded Appellant an opportunity to make a statement, and the following exchange occurred (verbatim):

[APPELLANT]: I am 37, I have five kids, I have two youngest, they are 10 and 11, but what I really wanted to talk to you about is I did actually two years on the street from once I was paroled and when I was transferred over to the special probation before I incurred the new charge I did six months on a special probation. And I was on special probation 6/7/2013 I didn't catch a charge until 2014, I made parole in 2012, that's two years on the street. Also, this is my first violation, the charge in Delaware I was only convicted of possession of a firearm by a person prohibit and I take accountability for my actions because I'm a burned male, I'm mad that it took me this long that I didn't change the people and places and things that I put myself around. So, in that hence I put myself in a situation that I shouldn't have been in and I'm willing to take on probation in Delaware also. I was on probation, and I was in the process of getting everything from Pennsylvania transferred over to Delaware because that's where my mother lives and that is actually a conduit situation for me to be in. I have a job available, I've completed prevention, looking for change. I have my OSHA license, I have a fire license and a cosmetology license while I was in jail. Minimum write ups, like I really just was trying and if I wasn't able to get time served or reinstatement to try and get everything lined up with Delaware so once I'm done I can get out of the tristate, I have to get out of the tristate and that's the only way that I feel as though I can be productive by getting out of the tristate that way I'm not putting myself around people and places and things that I know are a conduit to putting me back in jail. In 2014 when I caught this case, I had lost my brother, he fell off a bridge in Delaware. I was kind of going through something, my original PO would be able to tell you that, I was going through something mentally---

[DEFENSE COUNSEL]: Yeah, he was.

[APPELLANT]: And I got caught on my case, yes, I put myself around some things that I shouldn't have put myself around, I take accountability for that because those are my actions of putting myself around them people and I'm just asking it for, I've missed on so much years of my kids life….

THE COURT: Yeah.

[APPELLANT]: I'm just asking for like no jail time to even just be reinstated because this is my first violation on the special parole and they usually don't give you, I mean special probation, they usually don't give you time on your first violation…

THE COURT: Well…

[APPELLANT]: I'm just asking for the…

THE COURT: So, wait…

[APPELLANT]: And (inaudible).

THE COURT: When did he get released, so he got released from Delaware prison…

[DEFENSE COUNSEL]: Yes.

THE COURT: Four months ago.

[DEFENSE COUNSEL]: Right.

THE COURT: Okay, well it would be hard to get another violation when you spent the last nine years in jail. So, you…

[APPELLANT]: I didn't hear you, one time?

THE COURT: Okay it would be hard to get another violation when you've been in jail for all this time.

[APPELLANT]: Oh, yeah, I mean I understand that…

THE COURT: Okay, I mean just…

[APPELLANT]: But that was my first violation.

THE COURT: Yeah, no I get it….So, yes I'm giving you some extra time, not as much as some, I'm taking---look you violated on this case in a very short period of time with a pretty significant crime. Yeah, I hope you've learned your lesson, and you know your kids were like one year old when you went away, and now they're 10[.]

Id. at 11-14.

The trial court confirmed Appellant's Delaware conviction violated his probation in the instant matter, and the trial court then imposed an aggregate revocation sentence of 10 months to 24 months in prison to be followed by 3 years of probation. The trial court noted Appellant would be given credit for time served in Pennsylvania. The trial court indicated the sentence would be imposed concurrently to any remaining portion of Appellant's sentence in the state of Delaware.

Appellant filed a timely, counseled motion for reconsideration of his revocation sentence, which the trial court denied on March 8, 2023. This timely appeal followed, and all Pa.R.A.P. 1925 requirements have been adequately met.

On appeal, Appellant sets forth the following issues in his "Statement of the Questions Presented" (verbatim):

1. Whether the trial court violated Rule 708(B) of the Pennsylvania Rules of Criminal Procedure where the trial court's Gagnon II revocation hearing was untimely?

2. Whether the trial court erred as a matter of law and violated the discretionary aspect of sentencing when it imposed a manifestly excessive and unreasonable sentence inasmuch as the trial court did not state adequate grounds for imposing such a sentence, such a sentence lacked sufficient support in the record, was disproportionate to the alleged violations and such sentence failed to give individualized consideration to Appellant's personal history and background, and was in excess of what was necessary to address the

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