HomeMy WebLinkAboutCP-21-CR-0003069-2011
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGES: (2) CRIMINAL ATTEMPT TO
: OBTAIN DRUGS BY FRAUD
: (OXYCODONE)
:
JACK ALAN HOKE : CP-21-CR-3069-2011
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Peck, J., May 28, 2014 –
On January 23, 2014, Defendant, after having been expelled from the State
Intermediate Punishment Program (SIP), was resentenced at Count 2, Criminal Attempt
to Obtain Drugs by Fraud (Oxycodone), an ungraded felony, to undergo imprisonment in
1
a state correctional facility for not less than 36 months nor more than 72 months. On
2
February 19, 2014, Defendant filed a Notice of Appeal. In accordance with Pennsylvania
Rule of Appellate Procedure 1925(b), Defendant has filed the following concise
statement of matters complained of on appeal:
1.It is respectfully submitted that This Honorable Court erred in
sentencing defendant to a maximum sentence of imprisonment
exceeding the statutory maximum sentence for the offense.
Specifically, This Honorable Court sentenced defendant to a
maximum sentence of 72 months confinement, while the statutory
maximum for this offense is 5 years or 60 months, therefore the
sentence was illegal.
2.This Honorable Court abused its discretion in sentencing defendant
to a sentence of 36 months when the recommendation from the
District Attorney’s office that was agreed to by the parties was 24
months, and the original offer from the government that led to the
guilty plea was 30 months.
3.This Honorable Court abused its discretion when sentencing
defendant by not considering the fact that defendant was wrongfully
removed from the SIP program due to his not receiving proper
medical treatment for a documented medical condition that
1
Order of Court, In Re: Resentence (Jan. 23, 2014).
2
Notice of Appeal, filed February 19, 2014.
prevented him from completing the tasks required by the program
3
without proper treatment.
This Court’s opinion in support of our Order of Court, In Re: Resentence, is
written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
PROCEDURAL HISTORY
On October 7, 2011, Defendant was charged with Obtaining Drugs by Fraud
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(Oxycodone), 35 P.S. § 780-113(a)(12), an ungraded felony. On January 17, 2012, an
Information was filed by the District Attorney charging Defendant with the above charge
as well as with Criminal Attempt to Obtaining Drugs by Fraud (Oxycodone), 18
5
Pa.C.S.A. § 901 and 35 P.S. § 780-113(a)(12), also an ungraded felony. On the
Information, both Count 1 and Count 2 were listed as having a maximum term of
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imprisonment of 5 years. On October 4, 2012, Defendant pled guilty to Count 2,
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Criminal Attempt to Obtaining Drugs by Fraud. At Defendant’s guilty plea colloquy, the
Commonwealth advised this Court and Defendant, in accord with the Information, that
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the maximum possible term of imprisonment for Count 2 was five years. Defendant then
entered his plea in anticipation of entering the State Intermediate Punishment Program
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(SIP) if accepted, which would result in a flat 24 month sentence. Defendant was
ordered to appear at the Cumberland County Prison on December 26, 2012, at 9:00 a.m.,
and the Sheriff was directed to transport Defendant to SCI Camp Hill for screening for
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entry into the SIP at that time.
On December 26, 2012, Defendant filed a motion to defer commitment, which
was granted, and Defendant was ordered to appear before this Court on January 8,
3
Defendant’s Concise Statement of the Errors Complained of on Appeal, March 17, 2014, ¶¶ 1-3.
4
Criminal Complaint, filed October 7, 2011 at Criminal Docket MJ-09303-489-2011.
5
Information filed at the above docket on Jan. 17, 2012.
6
Information, Jan. 17, 2012.
7
Order of Court, In Re: Guilty Plea (Oct. 4, 2012).
8
Transcript of Proceedings, October 4, 2012 (Peck, J.) at 3.
9
Id.
10
Order of Court (Oct. 4, 2012).
2
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2013. On January 8, 2013, pursuant to an order of this Court, Defendant was taken by
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the Sheriff to SCI Camp Hill for screening for entry into SIP. After Defendant had
completed the screening process, and upon receipt by this Court of a report from SCI
Camp Hill that Defendant would benefit from SIP, Defendant was sentenced on June 10,
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2013, to a period of state intermediate punishment of 24 months.
By letter dated November 4, 2013, this Court was informed that Defendant had
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been expelled from SIP. That letter stated that Defendant had been “expelled from the
Program as a result of his lack of meaningful participation, demonstrated by ongoing
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behavioral problems and program violations.” We therefore scheduled a hearing for
1617
December 6, 2013. At Defendant’s request, that hearing was continued. In requesting
a continuance, defense counsel stated that he was “hopeful that we can . . . resolve
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something as to what the sentence will be. . . .” In response, we informed defense
counsel that “when someone gets kicked out of something and there is a revocation, the
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sentence is entirely up to \[this Court\].” Defense counsel responded, “Yes, ma’am.”
On December 9, 2013, this Court received a pre-sentence investigation memo
which listed the sentencing guidelines for Count 2 as follows: a mitigated range of 36
months, a standard range of between 48 and 60 months, and an aggravated range of also
11
Defendant’s Motion to Defer Commitment for Incarceration, filed Dec. 26, 2012; Order (Dec. 26,
2012).
12
Order of Court, In Re: Commitment for Entry into State Intermediate Punishment Program (Jan. 8,
2013).
13
Order of Court, In Re: Sentence (SIPP) (June 10, 2013).
14
Letter, Re: Expulsion of Jack Hoke, KW6813, from the State Intermediate Punishment (SIP) Program,
Docket No. CP3069 CT2/2011, from Terri A. Somers, Drug and Alcohol Program Manager, Bureau of
Treatment Services, Department of Corrections, dated November 4, 2013.
15
Id.
16
Order of Court (Nov. 14, 2013).
17
Order of Court, In Re: Continued Video Conference Hearing/PSI Ordered (Dec. 6, 2013).
18
Transcript of Proceedings, December 6, 2013 (Peck, J.) at 2.
19
Id.
20
Id.
3
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between 48 and 60 months. That memo also advised this Court that Defendant had been
“expelled from the Program \[SIP\] as a result of his lack of meaningful participation,
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demonstrated by ongoing behavioral problems and program violations.” On January 23,
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2014, Defendant was brought before us via teleconference to be resentenced. We
informed Defendant that the standard range pursuant to sentencing guidelines was
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between 48 and 60 months. Defense counsel acknowledged this range as correct. We
then sentenced Defendant at Count 2, Criminal Attempt to Obtain Drugs by Fraud, an
ungraded felony, to undergo imprisonment in a state correctional facility for not less than
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36 months nor more than 72 months, a mitigated range sentence. As our sentencing
order states, we sentenced Defendant in the mitigated range out of “consideration that the
Defendant has indicated that he has been clean since he has been in prison, and in
consideration that his addictions stem out of multiple medical surgeries that he has had
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for injuries.”
DISCUSSION
Defendant challenges the sentence imposed by this Court on January 23, 2014,
upon three different grounds. First, Defendant complains that the sentence of 36 to 72
months incarceration is beyond the statutory maximum. Second, Defendant complains
that we abused our discretion in sentencing beyond the 24 months allegedly agreed to by
the Commonwealth. Third, and finally, Defendant complains that, in sentencing him to a
minimum of 36 months incarceration, a mitigated range sentence, we failed to consider
Defendant’s allegedly improper expulsion from SIP. We find that Defendant’s errors
21
Memo, Re: Jack Alan Hoke, from Samantha K. Fazenbaker (Adult Probation), December 9, 2013.
22
Id.
23
Transcript of Proceedings, In Re: Resentence, January 23, 2014 (Peck, J.).
24
Id. at 5.
25
Id.
26
Order of Court, In Re: Resentence (Jan. 23, 2014).
27
Id.
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complained of on appeal are without merit, and the judgment of sentence should be
affirmed.
A.Sentence imposed was within the statutory maximum.
Defendant pled guilty to Count 2, Criminal Attempt to Obtaining Drugs by Fraud
(Oxycodone), 18 Pa.C.S.A. § 901 and 35 P.S. § 780-113(a)(12), an ungraded felony.
Subsection 780-113(a)(12) states: “(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited: . . . (12) The acquisition or obtaining of
possession of a controlled substance by misrepresentation, fraud, forgery, deception or
subterfuge.” 35 P.S. § 780-113 (a)(12). Subsection (f)(1) of Section 780-113 provides for
the following penalty for a violation of (a)(12):
(f) Any person who violates clause (12), (14) or (30) of
subsection (a) with respect to:
(1) A controlled substance or counterfeit substance
classified in Schedule I or II which is a narcotic drug, is
guilty of a felony and upon conviction thereof shall be
sentenced to imprisonment not exceeding fifteen years, or
to pay a fine not exceeding two hundred fifty thousand
dollars ($250,000), or both or such larger amount as is
sufficient to exhaust the assets utilized in and the profits
obtained from the illegal activity.
28
35 P.S. § 780-113 (f)(1) (emphasis added). A crime of attempt, such as Defendant pled
guilty to, is “of the same grade and degree as the most serious offense which is attempted
. . . .” 18 P.C.S.A. § 905(a). Finally, “\[u\]pon revocation of a State intermediate
punishment sentence, the sentencing alternatives available to the court shall be the same
as the alternatives available at the time of initial sentencing.” 42 Pa.C.S.A. § 9774 (c).
From all of the foregoing statutes, it is clear that the maximum incarceration for
the offense to which Defendant pled guilty is fifteen years. As such, our sentence of 36 to
72 months (3 to 6 years) is well within the statutory maximum.
Although Defendant did not raise the validity of his plea in his concise statement
of errors complained of, and we therefore believe that that issue has been waived, we will
28
See generally, Commonwealth v. Thomas, 51 A.3d 255 (Pa. Super. 2012) (recognizing Oxycodone as a
Schedule II Controlled Substance and as a narcotic).
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briefly address the merits of the unraised issue in case the Court finds that Defendant’s
errors complained of, while not explicitly raising the issue, implicitly entail it.
In Persinger, our Supreme Court held that “\[a\] defendant obviously cannot be
expected to plead intelligently without understanding the consequences of his plea. In
order to understand the consequences of his plea it is clear that a defendant must be
informed of the maximum punishment that might be imposed for his conduct.”
Commonwealth v. Persinger, 615 A.2d 1305, 1308 (Pa. 1992). In the present matter, at
the time of Defendant's plea, he was mistakenly informed, orally and via the Information,
that the maximum imposable sentence was five years.
In Persinger, the defendant was sentenced to one to two years of incarceration on
each of six counts of Bad Checks and two and a half to five years of incarceration on one
count of Theft by Deception. Persinger, 615 A.2d at 1306. The trial court in Persinger
ordered the sentences to run consecutively, thus resulting in an aggregate sentence of
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seven and a half to fifteen years of incarceration. Id. The defendant filed an appeal with
the Superior Court alleging that his plea was not knowingly and intelligently entered as
he was not informed that his sentences could run consecutively, and therefore trial
counsel was ineffective for failing to file a motion to withdraw the guilty plea post-
sentencing. Id. at 1306-7. The Superior Court affirmed the defendant’s sentence. Id. at
1307-8. Our Supreme Court, however, found that while the defendant was informed of
the maximum imposable sentence for each offense he was not informed that the
sentences could be imposed consecutively. Id. As a result, the Court held that trial
counsel was ineffective because the defendant’s guilty plea colloquy was defective,
reasoning that “a defendant must be informed of the maximum punishment that might be
imposed for his conduct” and that the term ‘maximum’ includes “the total possible
aggregate sentence.” Id. at 1308-9. The Court reversed the order of the Superior Court
and remanded the case for trial. Id. at 1309.
29
The defendant’s sentence was subsequently modified with one of the Bad Checks sentences being
vacated. Persinger, 615 A.2d at 1306 n. 3. Thus the defendant’s minimum aggregate sentence was 7 ½
years rather than 8 ½ years.
6
In the present matter, the Information erroneously listed the maximum
incarceration for Count 2 as 5 years, and the Commonwealth, during Defendant’s guilty
plea colloquy, reinforced the erroneous Information by also stating that the maximum
incarceration for Count 2 was 5 years. With that information, Defendant pled guilty in
anticipation of entering SIP with a flat sentence of 24 months. Defendant was
subsequently accepted into SIP. However, on November 4, 2013, we were informed that
Defendant had been expelled from SIP. On January 23, 2014, we resentenced Defendant
to a period of incarceration of 36 to 72 months. At Defendant’s resentencing, but prior to
our imposing sentence, defense counsel acknowledged, per a pre-sentence investigation
memo, that the standard range sentence for Count 2 was between 48 and 60 months. As a
minimum sentence of 60 months, the top of the standard range, would result in a
maximum period of incarceration of 120 months, defense counsel’s acknowledgment of
this range in Defendant’s presence provided notice that the charge to which Defendant
had pled guilty carried a maximum sentence beyond the 5 years both listed on the
Information and verbally confirmed by the Commonwealth at Defendant’s guilty plea
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colloquy on October 4, 2012. Thus, unlike the defendant in Persinger, Defendant was in
a position to challenge the validity of his guilty plea after being expelled from SIP and
prior to resentencing, when he became aware of a possible maximum term of
imprisonment beyond the 5 years contained in the Information and referenced at
Defendant’s guilty plea colloquy. Defendant chose not to do so, and his counsel did not
object or move to withdraw Defendant’s plea. Moreover, we do not believe that
30
We note that the Court stated, in Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super. 2002), that
“where a criminal defendant pleads guilty believing that his maximum sentence is less than what he could
actually receive by law, there is no manifest injustice unless he receives a higher sentence than what he
was told.” While we recognize that our sentence of 36 to 72 months exceeds the erroneous maximum of
the Information, the potential for a sentence beyond 5 years was made clear to Defendant via the pre-
sentence investigation memo that provided for a standard range sentence of 48 to 60 months and which
was furnished to Defendant prior to resentencing. See note 21, supra. Thus, while Defendant received a
higher maximum sentence than what he was told was possible at the time of his guilty plea, he did not
receive a higher sentence than what he was told prior to resentencing.
7
Defendant would have pursued a different course of action even if he had been aware at
the time of his plea that he faced a maximum period of incarceration of 15 years rather
than 5. Defendant entered his plea in order to be considered for SIP. A potential
maximum of 15 years of incarceration would have surely served as an even more
compelling incentive for Defendant to plead guilty and seek entry into SIP, thus
exchanging a potential maximum of 15 years for a flat 24 month sentence of intermediate
punishment.As such, we believe Defendant’s guilty plea was valid, despite the erroneous
Information, as the incorrect maximum period of incarceration relayed to Defendant was
31
immaterial to his decision to plead.
We do recognize, however, that the sentencing alternatives available to this Court
after revocation of an SIP sentence, according to Section 9774(c) of Title 42, shall be the
same as those available at the time of initial sentencing. If the Court determines that
Section 9774(c) constrains this Court to sentence Defendant within the statutory
maximum incorrectly included on the Information, finding that the Defendant had relied
upon the incorrect maximum at the time of his plea and therefore this Court was bound to
sentence Defendant according to the incorrect maximum, we are prepared to resentence
Defendant upon remand to a sentence consistent with the Information.
B.This court was not bound by any alleged agreement as to sentencing.
In general, “\[s\]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005). A sentence
constitutes an abuse of discretion if:
the sentence imposed . . . either exceed\[s\] the statutory limits
or \[is\] manifestly excessive. In this context, an abuse of
discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the
record, that the sentencing court ignored or misapplied the
31
See Commonwealth v. Hodges, 789 A.2d 764, (Pa. Super. 2002) (“\[I\]n determining whether a plea has
been voluntarily entered, an examination of the totality of the circumstances is warranted.”).
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law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Id. In this particular case, we explicitly informed Defendant more than a month prior to
his resentencing that “the sentence is entirely up to \[this Court\],” and defense counsel, in
response, acknowledged that sentencing is the prerogative of the Court. Yet now
Defendant complains that we abused our discretion by not honoring an alleged agreement
between Defendant and the Commonwealth. However, at the time of resentencing, the
Commonwealth deferred to the Court’s judgment regarding sentencing, clearly refuting
Defendant’s claim that any agreement existed between the Commonwealth and
32
Defendant. Even so, we would not have been bound by any such agreement, if one had
existed, and explicitly informed Defendant of that. Thus, exercising our own judgment,
we sentenced Defendant to a mitigated range sentence, and that sentence was neither
beyond the statutory limit nor manifestly excessive. Likewise, we find any claim that the
mitigated range sentence we imposed, in recognition of Defendant’s sobriety, was an
abuse of discretion incredible. This claim is meritless.
C.The propriety of Defendant’s expulsion from SIP was not before the Court.
Pursuant to Section 9774(a) of Title 42:
The court may at any time terminate a sentence of State
intermediate punishment pursuant to 61 Pa.C.S. Ch. 41
(relating to State intermediate punishment).
42 Pa.C.S.A. § 9774(a). If a court determines that a participant was expelled from SIP, it
shall revoke the participant’s sentence of SIP. 42 Pa.C.S.A. § 9774(b). Finally, “\[u\]pon
revocation of a State intermediate punishment sentence, the sentencing alternatives
available to the court shall be the same as the alternatives available at the time of initial
sentencing.” 42 Pa.C.S.A. § 9774 (c). Of particularly importance, subsection 9774(b)
does not require this Court to determine the propriety of a defendant’s expulsion but to
32
Transcript of Proceedings, In Re: Resentence, January 23, 2014 (Peck, J.).
9
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simply determine if the defendant has been expelled. Based upon the letter we received,
we determined that Defendant had been expelled, and we therefore revoked Defendant’s
SIP sentence. Whether Defendant was properly expelled is an issue Defendant may
pursue if he so chooses, but his resentencing was not the proper forum.
With respect to the sentence imposed upon Defendant, Defendant’s bare
allegations that he was improperly expelled from SIP as the result of his medical
conditions preventing him from meaningfully participating in the program carried no
weight with the Court, and we were certainly not obliged to consider such allegations,
especially absent any evidence beyond representations made to this Court by defense
counsel. Moreover, Defendant’s claim was directly contradicted by Terri Somers, Drug
and Alcohol Program Manager, Bureau of Treatment Services, who, in a letter to this
Court, stated that:
Mr. Hoke has failed to progress in treatment. He has a history
of physical injuries which he used as an excuse for not being
able to meet \[Quehanna Boot Camp’s Therapeutic
Community\] requirements. Medical staff met with Mr. Hoke,
and allowed him certain accommodations, deemed necessary,
to assist with pain management. Mr. Hoke also requested a
number of accommodations that were denied as they were
34
medically unnecessary.
In short, we found Defendant’s testimony on this point not credible. Thus, in exercising
our discretion, we did not misapply the law, exercise our judgment for reasons of
partiality, prejudice, bias or ill will, or arrive at a manifestly unreasonable decision by
simply crediting Ms. Somers’ assessment over Defendant’s. And it bears repeating, we
find incredible Defendant’s claim that imposing a mitigated range sentence was an abuse
33
Letter, Re: Expulsion of Jack Hoke, KW6813, from the State Intermediate Punishment (SIP) Program,
Docket No. CP3069 CT2/2011, November 4, 2013.
34
Letter, Re: Expulsion of Jack Hoke, KW6813, from the State Intermediate Punishment (SIP) Program,
Docket No. CP3069 CT2/2011, November 4, 2013 (emphasis added). During Defendant’s resentencing,
we asked Defendant if he had read the above letter. He replied that he had and that he had filed a
grievance with regards to his expulsion. (Transcript of Proceedings, In Re: Resentence, January 23, 2014
(Peck, J.) at 6.)
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of discretion. As above, we find Defendant’s challenge to his sentence to be without
merit.
CONCLUSION
This Court concludes that it properly sentenced Defendant. The issues raised by
Defendant on appeal, therefore, are without merit.
BY THE COURT,
_______________________________
Christylee L. Peck, J.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
Jason B. Duncan, Esq.
8 N. Baltimore Street
Dillsburg, PA 17019
Attorney for Defendant
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