Com. v. Millan, M.

C
J-S56027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MIGUEL MILLAN                              :
                                               :
                       Appellant               :   No. 536 EDA 2020


      Appeal from the Judgment of Sentence Entered November 21, 2014,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0014355-2010.


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                              Filed: March 5, 2021

        Miguel Millan appeals the judgment of sentence imposed following

revocation of his probation for a 2010 charge for possession with intent to

deliver. Upon review, we affirm.

        We summarize Millan’s numerous criminal offenses and probation

violations as follows. On November 24, 2009, Millan was arrested and charged

with retail theft. On April 7, 2010, he entered into a negotiated guilty plea,

and the trial court sentenced him to twelve (12) months of the Intermediate

Punishment Program (IPP) followed by two (2) years' probation.

        Several months later, on October 7, 2010, following a violation of

probation ("VOP") hearing, the trial court continued Millan’s probation.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S56027-20



      On January 26, 2011, Millan entered into a negotiated guilty plea to the

2010 possession with intent to deliver ("PWID") at issue here, and the trial

court sentenced him to three (3) years' probation. The trial court also found

that Millan violated his probation on the retail theft case and continued his

probation.

      On June 3, 2011, following a VOP hearing, the trial court revoked Millan’s

probation on both cases and sentenced him to eleven and a half (11.5) to

twenty-three (23) months’ incarceration followed by five (5) years' probation

on each case, to run concurrently.

      On April 9, 2013, Millan entered into a negotiated guilty plea to a second

charge of PWID. The trial court sentenced Millan to eleven and a half (11.5)

to twenty-three (23) months’ incarceration followed by five (5) years'

probation with immediate parole. Additionally, following a VOP hearing, the

trial court continued Millan’s probation on the retail theft and the 2010 PWID.

      On February 26, 2014, after another VOP hearing, the trial court again

continued Millan’s probation on the retail theft and the 2010 PWID.

      On April 3, 2014, Millan was arrested for:      (i) stalking - repeatedly

commit acts to cause fear, (ii) harassment - communicates lewd, threatening

language, and iii) contempt for violation of a PFA order. At a hearing on June

25, 2014 on these new charges, Millan’s ex-girlfriend and mother of his child

testified that Millan sent her a picture of him with a needle in his arm

threatening to stab her with it. Millan also repeatedly sent text messages with

harsh and threatening language to her.       Millan ultimately entered into a

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J-S56027-20



negotiated guilty plea to the new charges. The trial court sentenced Millan to

eleven and a half (11.5) to twenty-three (23) months’ incarceration followed

by eighteen (18) months' probation.          Additionally, the trial court

specifically ordered Millan to end all contact with the Complainant.

The trial court also held a VOP hearing on Millan’s three other probation cases.

The trial court revoked Millan’s probation in all three cases and resentenced

him to one (1) to two (2) years' incarceration plus five (5) years' consecutive

probation on the retail theft case, ten (10) years' probation on the 2010 PWID

and ten (10) years' probation on the 2013 PWID, each to run concurrently to

the sentence imposed on the new charges.

      Millan continued to harass the Complainant by way of letters and phone

calls from prison. The trial court held another VOP hearing on November 21,

2014, and, at the conclusion of the hearing, found Millan in violation of its

probation. The trial court revoked probation and sentenced Millan to five (5)

to ten (10) years' incarceration on the 2010 PWID case, followed by ten (10)

years' probation on the 2013 PWID case. The trial court ordered these VOP

sentences to run consecutively to any other sentence Millan may have been

serving.

      On December 10, 2014, Millan filed a motion for reconsideration of his

VOP sentences, which the trial court denied. No direct appeal was taken.

      Following two Post–Conviction Relief Act ("PCRA") petitions, the trial

court reinstated Millan's appellate rights nunc pro tunc regarding the VOP

sentences for the retail theft and the 2010 PWID cases. On February 6, 2020,

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Millan timely filed the instant direct appeal regarding only his VOP sentence of

incarceration for the 2010 PWID case. Millan raises one issue for our review,

namely whether this sentence was unduly harsh and unreasonable for his

violation of probation on the 2010 PWID case. Millan’s Brief at 6.

        Millan challenges the discretionary aspects of the incarceration sentence

entered on November 21, 2014 for violation of probation in his 2010 PWID

case.    “It is well settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.”        Commonwealth v.

Austin, 

66 A.3d 798

, 807-08 (Pa. Super. 2013) (citation omitted). This Court

has explained that, to reach the merits of a discretionary sentencing issue, we

must conduct a four-part analysis to determine the following factors:

        (1) whether the appeal is timely; (2) whether [a]ppellant
        preserved his issue; (3) whether [a]ppellant's brief includes a
        concise statement of the reasons relied upon for allowance of
        appeal with respect to the discretionary aspects of sentence [in
        accordance with 2119(f)]; and (4) whether the concise statement
        raises a substantial question that the sentence is appropriate
        under the sentencing code. . . . [I]f the appeal satisfies each of
        these four requirements, we will then proceed to decide the
        substantive merits of the case.

Commonwealth v. Colon, 

102 A.3d 1033

, 1042–43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 

66 A.3d 798

, 808 (Pa. Super. 2013)).

        Here, Millan timely appealed and set forth a statement of reasons for

his appeal, satisfying the first and third requirements under Colon. Regarding

the other two requirements, we must review each one for compliance.




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      Regarding preservation of the issues, in his 2119(f) statement, Millan

claims that the trial court imposed a sentence that was manifestly excessive.

Millan’s Brief at 16. Specifically, Millan argues that the trial court failed to

adequately consider certain mitigating factors, including his childhood

circumstances, criminal background, and character. Millan also argues that

the trial court did not give any reasons for imposing a 5 to 10 year sentence

of incarceration or provide a hearing on his motion for reconsideration given

the severity of this sentence.    We observe that Millan did not raise these

arguments before the trial court, and therefore did not preserve them.

Because Millan did not satisfy the second requirement under Colon, we will

not review the merits of these claims.

      However additionally, Millan argues that the court failed to adequately

consider the factors set forth in Sentencing Code, particularly his rehabilitative

needs. He claims that he did not threaten his ex-girlfriend and only committed

technical violations of probation for his 2010 PWID case. Our review of the

record reveals that Millan preserved this issue, and therefore he has satisfied

the second requirement under Colon. Accordingly, we must consider whether

Millan’s claim raises a substantial question.

      We interpret Millan’s claim to be that he received an excessive sentence

for his probation violation based upon only technical probation violations. This

Court has found that, a probation revocation sentence based solely on

technical violations and claimed to be excessive, raises a substantial question.

Commonwealth v. Malovich, 

903 A.2d 1247

, 1253 (Pa. Super. 2006);

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Commonwealth. v. Sierra, 

752 A.2d 910

, 913 (Pa. Super. 2000).               We

therefore will address the merits of this claim.

      This Court has stated:

         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.

         In determining whether a sentence is manifestly excessive,
         the appellate court must give great weight to the sentencing
         court's discretion, as he or she is in the best position to
         measure factors such as the nature of the crime, the
         defendant's character, and the defendant's display of
         remorse, defiance, or indifference.

      Upon revoking probation, a sentencing court may choose from any
      of the sentencing options that existed at the time of the original
      sentencing, including incarceration. [U]pon revocation [of
      probation] . . . the trial court is limited only by the maximum
      sentence that it could have imposed originally at the time of the
      probationary sentence.

Colon, 102 A.3d at 1044

(quotations and citations omitted).

      When imposing a sentence, the trial court must follow the general

principle that the sentence be “consistent with the protection of the public,

the gravity of the offense as it relates to the impact on the life of the victim

and on the community, and the rehabilitative needs of the defendant.” 42

Pa.C.S.A. § 9721(b).     Additionally, where probation has been revoked, a

sentence of total confinement may only be imposed if:

      (1) the defendant has been convicted of another crime; or

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J-S56027-20


      (2) the conduct of the defendant indicates that it is likely that he
      will commit another crime if he is not imprisoned; or

      (3) such a sentence is essential to vindicate the authority of the
      court.

42 Pa.C.S.A. § 9771(c).

      Millan claims that his sentence was unduly harsh and unreasonable in

light of his violations, which were only technical in nature. Millan Brief at 17.

Regarding the violation itself, Millan argues that he did not directly contact the

Complainant as prohibited by the court. Additionally, his communication was

not threatening or violent, but merely indicated he would seek custody of his

son when he got out of prison. Thus, according to Millan, “a conviction for

[PWID] where he originally received a sentence of three years[’] probation

should not have resulted in a five (5) to ten (10) year state sentence on the

basis of a letter that had nothing to do with the original offense” and was not

grave enough to justify such a sentence. Millan’s Brief at 18-19.

      Millan relies on a case where this Court has rejected lengthy

incarceration sentences imposed based solely upon technical violations of

probation. In Commonwealth v. Parlante, 

823 A.2d 927

(Pa. Super. 2003),

this Court found that the trial court abused its discretion where it imposed a

lengthy sentence based on a number of technical violations. There, the trial

court based its revocation sentence solely on the likelihood that the defendant

would violate probation again without considering that her few crimes were

not violent among other important factors. While this Court agreed that the




                                      -7-
J-S56027-20



defendant should serve some prison time for her violations, we concluded 4

to 8 years was excessive.

Id. at 930-931.

       Similarly, we observe that in Commonwealth v. Williams, 

69 A.3d 735

(Pa. Super. 2013), we rejected a sentence of 24 to 48 years of

incarceration for violation of probations based upon subsequent convictions

for unrelated offenses. We concluded that, although the trial court considered

all of the relevant factors set forth in Sentencing Code and accorded

reasonable weight to each, the sentence for the violation was not “consistent

with” those factors.

Id. at 742.

In Williams, the defendant stole property

worth only a few thousand dollars, and although she was aggressive during

some of the incidents, her crimes were not on par with more serious violent

crimes.    Nonetheless, the trial court imposed an incarceration sentence

commensurate with more violent crimes such as murder or rape.

Id. at 742- 743.

  On appeal, this Court recognized that “although such events should

occur infrequently, the appellate courts retain the authority to reject a

sentence as unreasonable/or excessive . . .” and Williams was such a case.

Id. at 743

(citing Commonwealth v. Walls, 

926 A.2d 957

, 964 (Pa. 2007)).

       Here, the trial court imposed a revocation sentence of five (5) to ten

(10) years of incarceration, the statutory maximum, for Millan’s 2010 PWID

(heroin). Based upon our review, the instant case does not warrant the type

of relief afforded in Parlante and Williams.

       Initially, the trial court sentenced Millan to 3 years’ probation for his

2010 PWID conviction. Just a few months later, Millan violated his probation,

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J-S56027-20



and the court revoked his probation and resentenced him to eleven and a half

(11.5) to twenty-three (23) months’ incarceration plus five (5) years of

probation. Thereafter, Millan violated his probation two more times. For the

second and third violation, the court merely maintained Millan’s probation.

      Notably, three of Millan’s probation violations resulted from guilty pleas

to new offenses, including a second PWID, stalking, harassment, and

contempt of a PFA. Then, following Millan’s fourth probation violation, the trial

court increased Millan’s probation sentence and gave Millan a very stern

warning that if he bothered the Complainant and her kids, one of which was

his, the court would revoke his probation and give him a lengthy state

sentence. N.T., 6/25/14, at 31-33.

      A few months later, despite the court’s admonition, Millan contacted the

Complainant from prison.     At his fifth violation hearing for his 2010 PWID

conviction, the court stated in addressing Millan’s ex-girlfriend:

      I find that he has stalked you by writing the letter to your home
      address. I find that he stalked you by trying to make contact with
      you through the phone, from the prisons. I find that he violated
      my court order when I told him not to try and contact you.

Id. at 17.

The court continued generally:

      I believe that [Complainant] needs a measure of protection. I’m
      going to try to give her that . . . . I specifically told him not to
      contact [Complainant] under any circumstances.

      That was my order I believe he tried to play close to the line. I
      believe he’s a slickster, I believe he’s a con man, and that’s what
      he’s trying to do, and here today, he’s trying to con me.




                                      -9-
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Id. at 18-19.

As a result, the court found Millan in violation for a fifth time,

revoked his probation, and imposed a five (5) to (10) year sentence of

incarceration.

      In its opinion, the court further explained it reasons:

      [T]he court gave careful consideration to all relevant factors in
      sentencing [Millan]. . . . [Millan] has been convicted of a number
      of felonies. [H]e has shown an inability to abstain from criminal
      behavior, as he has repeatedly violated probations imposed by
      this Court. More importantly, [Millan] violated the order of this
      Court, which explicitly required [him] to end all contact with the
      Complainant. Thus, the sentence imposed by this Court is
      necessary for the protection of the Complainant and to vindicate
      the authority of this Court. The sole fact that [Millan] contacted
      the Complainant (in violation of the order of this Court) shows that
      [Millan] is unable to abide by this court’s authority, and that he
      continues to pose a threat to the Complainant if not incarcerated.

                                      ***

      [Furthermore], [t]he sentence was necessary to foster [Millan’s]
      rehabilitation. The basic objective of probation is to provide a
      means to achieve rehabilitation without resorting to incarceration.
      . . . When it becomes apparent that the probation order is not
      serving this desired end the court’s discretion to [impose] a more
      appropriate sanction should not be fettered. This court afforded
      [Millan] many opportunities to show his ability to comport his
      behavior with the law. Having violated each probation sentence
      as well as directly violating the order of this Court, it has become
      apparent that probation sentences have not facilitated [Millan’s]
      rehabilitation. Accordingly, incarceration is necessary to foster
      [Millan’s] rehabilitation.

Trial Court Opinion, 6/26/20, at 7-8 (citations omitted).

      Based on the above, it is evident that the trial court considered the

relevant sentencing factors. Given Millan’s history, the trial court was well

familiar with Millan. The court gave Millan multiple opportunities to show that


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J-S56027-20



he could rehabilitate within society, however probation was clearly ineffective.

The lesser sentence of incarceration previously imposed by the court likewise

did not deter Millan. As such, the circumstances of this case supported the

court’s imposition of a sentence of total confinement as essential to vindicate

the authority of the court. We therefore conclude that the trial court did not

abuse its discretion in imposing the five (5) to (10) year maximum

incarceration sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/21




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