IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L

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1 Commonwealth v. Harsh Nos , Ashworth, J. February 19, 2015 Criminal Drug Court Probation Violation DUI Possession of Drug Paraphernalia Guilty Plea Post Sentence Motion to Modify Discretionary Aspect of Sentence Mitigating Factors Rehabilitative Needs A sentence of 8 to 23 months incarceration followed by 3 years of consecutive probation for a second DUI was not excessive and was well within the standard sentencing guidelines. IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : v. : Nos , : JARED ANDREW HARSH : O P I N I O N BY: ASHWORTH, J., FEBRUARY 19, 2015 Jared Andrew Harsh has filed a timely motion to modify sentence following his judgment of sentence imposed on January 27, For the reasons set forth below, this motion will be denied. I. Procedural Background The procedural history may be summarized as follows. On May 15, 2012, Harsh appeared before this Court for admission into the Lancaster County Court of Common Pleas

2 Adult Drug Court Program 1 on a probation violation hearing on Information Nos and for failure to complete inpatient drug and alcohol treatment. 2 At that time, Harsh stipulated to his probation violation as a condition of participation in the Drug Court Program. He was sentenced to a new five-year period of probation at No , and to a new two-year period of probation at No After a thorough oral and written colloquy, Harsh elected to participate in, and was required to successfully complete, the Drug Court Program. Harsh graduated from the Drug Court Program on September 17, 2013, although he continued on probation in order to complete the Aftercare requirements of the Drug Court Program. During his Drug Court Aftercare probation appointment on October 17, 2013, Harsh reported that he had used Ativan, cocaine and heroin (violations of #18 of the Drug Court participant contract). While Harsh had a prescription for the Ativan, he did not have the permission of his probation officer to take it. 1 The Drug Court Program provides the participant an opportunity to pursue treatment for his or her addiction(s), while productively addressing associated legal problems. Program participants, once accepted, have frequent contact with the Drug Court Judge, the probation officer, and treatment providers. They are required to complete a Four Phase program culminating with graduation. The Phase program was designed to be completed in one year. Following graduation, a participant, when appropriate, may petition the court to have his or her charges dismissed, and/or reduced or record expunged. Program participants are expected to complete and participate in numerous pro-social, treatment-oriented activities. These include: AA/NA meetings; group and individual therapy; weekly court appearances; probation appointments; and urine testing. Drug Court participants receive sanctions if they violate Program rules or fail to achieve Phase requirements. Possible violations include: missed appointments; failed or adulterated urine tests; new arrests/charges; and lack of participation in treatment. Sanctions are imposed relative to the violation, and include demotion in Phase, fines, curfew restrictions, incarceration, and termination from the Drug Court Program. 2 Harsh was on supervision for convictions for delivery of cocaine, 35 P.S (A)(30), at Information No , and for unauthorized use of a motor vehicle, 18 Pa. C.S.A. 3928, driving under the influence of alcohol or a controlled substance (DUI), 75 P.S. 3802(A)(2), fleeing or attempting to elude, 75 P.S. 3733(A), possession of drug paraphernalia, 35 P.S (A)(32), and driving while operating privileges suspended or revoked, 75 P.S. 1543(a), at Information No

3 On November 25, 2013, Harsh was arrested and charged with possession of drug paraphernalia, 35 P.S (A)(32), at Information No Harsh was subsequently involuntarily committed to the hospital in November, and voluntarily admitted to a drug detoxification program in December of On February 1, 2014, Harsh failed to report for weekend drug testing (a violation of #19 of the Drug Court participant contract). On March 6, 2014, he failed to report for a probation appointment (a violation of #4 of the Drug Court participant contract). Harsh reported for his probation appointment on March 14, 2014, and admitted to cocaine and heroin use on March 11, 2014 (a violation of #18 of the Drug Court participant contract). He further lied about going to a family member s cabin when he was excused from weekend drug testing on March 1, 2014 (a violation of #15 of the Drug Court participant contract), and that he was prescribed benzodiazepine and was taking it without permission from his probation officer (a violation of #18 of the Drug Court participant contract). 3 Harsh pled guilty to this ungraded misdemeanor charge at the Magisterial District Justice level on September 23, The penalty was assessed by the Court of Common Pleas on October 31,

4 Harsh voluntarily committed to drug detoxification on April 1, 2014, and was released on April 7, He failed to report for weekend drug testing on April 27, 2014 (a violation of #19 of the Drug Court participant contract). 4 On May 15, 2014, Harsh failed to report for a probation appointment (a violation of #4 of the Drug Court participant contract). 4 Harsh s criminal record reveals that he was arrested on April 27, 2014, in Philadelphia and charged with criminal trespass, 18 Pa. C.S.A. 3503(b.1)(1)(i), at Information No He pled guilty to the charge and was sentenced on August 18,

5 On May 12, 2014, Harsh committed the following new criminal offenses in Chester County: (1) DUI: controlled substance (5 counts), 75 P.S. 3802(d)(1), (d)(2); intentional possession of a controlled substance by person not registered, 35 P.S (A)(16); and possession of drug paraphernalia, 35 P.S (A)(32). These offenses were docketed to Chester County Information No A capias 5 was filed on May 21, 2014, on Information No for Harsh s arrest. Meanwhile, on May 17, 2014, Harsh entered another drug detoxification program. The organization brought Harsh for a Drug Court review hearing on June 3, At that time, the capias was modified to walk-in status pending the scheduling of a probation violation hearing. On June 20, 2014, Harsh reported to his probation officer that he was released from treatment and living at a recovery house. Harsh missed weekend drug testing on August 10, 2014 (a violation of #19 of the Drug Court participant contract). On September 3, 2014, Harsh was arrested for a DUI in Lancaster County. This charge was docketed to No On September 5, 2014, he was placed in Lancaster County Prison for a warrant. Harsh was brought to a Drug Court review hearing on September 9, 2014, at which time he was unsuccessfully discharged from the Aftercare portion of the Drug Court Program. He was further advised that his probation at Information No was going to be violated due to the new criminal charges in Chester and Lancaster Counties, and for failing to successfully complete the Aftercare portion of 5 A capias is a writ requiring a government official to bring a parolee or probationer to court to answer for an alleged parole or probation violation. 6 Harsh admitted to consuming three bags of heroin just prior to entering his vehicle. As a result of his impairment, he crashed his vehicle into a curb and off the roadway. 5

6 the Drug Court Program. Accordingly, Harsh s walk-in status was revoked and a bench warrant on Information No was reissued. On November 20, 2014, Harsh entered a guilty plea in Chester County to the charge of DUI (2 nd offense), and received a sentence of 3 to 23 months incarceration. He received a consecutive sentence of one year probation on the charge of intentional possession of controlled substance by person not registered. The remaining five charges were withdrawn, pursuant to the plea agreement. After serving his sentence in Chester County, Harsh appeared for a probation violation hearing in this Court on Information No on January 27, At that time, Harsh was found in violation of his probation. Probation was revoked and he was resentenced to a four-year period of probation. 7 This sentence was made concurrent with the sentence imposed at No , and the sentence imposed in Chester County. At the same time, Harsh tendered an open guilty plea on Information No immediately stood for sentencing after waiving his right to a presentence investigation report. This Court accepted the plea and Harsh He received a sentence of 8 to 23 months incarceration for the DUI (2 nd offense), with credit for time served from September 20, 2014, followed by a three-year period of probation, and a fine of $1, The standard conditions for second offense DUI convictions involving controlled substances were also imposed. It was further noted on the sentencing conditions order that the three-year probation period could be reduced to two years if Harsh had no violations. The statutory fine of $25.00 was imposed for the summary offense of roadways laned for traffic. will be corrected. 7 The sentencing sheets reflect a sentence of time-served to 23 months incarceration in addition to the probation. This is a clerical error and 6

7 On February 6, 2015, Harsh filed a timely motion to modify sentence in which he claims the sentence for the DUI at Information No constituted a manifest abuse of discretion and was clearly unreasonable considering the circumstances presented at sentencing. (See Motion to Modify at 7.) Harsh seeks a DUI sentence of 6 to 23 months incarceration without a period of consecutive probation. (Id. at 8.) On Information No , Harsh wants the Court to reduce the sentence from four years of probation to two years. II. Discussion Harsh is challenging only the discretionary aspects of his sentencing. With respect to the DUI, he claims his sentence of 8 to 23 months incarceration is clearly unreasonable under the circumstances. This sentence is within the permissible statutory maximum 8 and, therefore, clearly is a legal sentence. Moreover, the sentence is within the standard range sentencing guidelines which call for a minimum sentence in the range of 6 to 16 months of incarceration, plus or minus 3 months for an aggravated or mitigated range sentence. Nonetheless, Harsh asserts that it is an unreasonable one. 8 Harsh was sentenced on a DUI, controlled substance, which is graded as a misdemeanor of the first degree. A person convicted of such crimes may be sentenced to imprisonment for up to five years. 18 Pa. C.S.A Harsh s sentence of 8 to 23 months for his second DUI did not exceed the statutory maximum. 7

8 Harsh further contends the sentence of four years probation on Information No is excessive. It is clearly stated in the Sentencing Code not only that the court may revoke a defendant's probation if appropriate, but also that upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing. 42 Pa. C.S.A. 9771(b). See Commonwealth v. Wallace, 582 Pa. 234, 242, 870 A.2d 838, (2005). The new probation sentence imposed by this Court on Harsh is within the permissible statutory maximum 9 and, therefore, clearly is a legal sentence. Still, Harsh asserts that it is an excessive one. I begin by noting that sentencing is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Commonwealth v. Wall, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007). 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. Id. (quoting Commonwealth v. Smith, 543 Pa. 566, 571, 673 A.2d 893, 895 (1996)). In considering whether a sentence was manifestly excessive or unreasonable the appellate court must give great weight to the sentencing judge's discretion, as he or she is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Wall, supra at 565, 926 A.2d at 961 (quoting Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242, 1243 (1990)). See also Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997) (noting that the sentencing court is in the best position to measure various factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance or indifference). That discretion, however, is not without its limitations. The Pennsylvania Supreme Court has instructed: [A] trial court must 9 Harsh was sentenced on delivery of cocaine, 35 P.S (a)(30), which is an ungraded felony which carries a ten-year maximum prison term under 35 P.S (f)(1.1). 8

9 follow the general principle that the sentence imposed should call for confinement that is 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. Commonwealth v. Mouzon, 571 Pa. 419, 424, 812 A.2d 617, 620 (2002) (footnote omitted). See 42 Pa. C.S.A. 9721(b). In clarifying the proper standard of appellate review of a sentencing court's imposition of sentence, our Supreme Court has noted: Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed. Even with the advent of the sentencing guidelines, the power of sentencing is a function to be performed by the sentencing court.... Thus, rather than cabin the exercise of a sentencing court's discretion, the guidelines merely inform the sentencing decision. Wall, supra at 565, 926 A.2d at (footnote omitted; citations omitted). Here, a sentence of 8 to 23 months incarceration followed by 3 years of consecutive probation for a second DUI was not excessive and was well within the standard sentencing guidelines. This Court is intimately familiar with Harsh s addiction, his failure to rehabilitate, his failure to adhere to laws requiring him not to drive, and his failure to adhere to laws requiring him not to drive impaired. This Court evaluated, among other things, Harsh s DUI history dating from 2003, the circumstances of Harsh s most recent DUI convictions in Chester and Lancaster Counties, his character, his proclivity towards drug abuse, the danger he represents to the community and himself, and the amount of heroin he consumed just prior to getting into his car and driving on September 3, As a result of his impairment, he crashed his vehicle into a curb and off the roadway. He could have 9

10 very easily injured or killed another driver or a pedestrian. The imposition of a standard range sentence was not clearly unreasonable or too severe a punishment under the circumstances of this case. See Commonwealth v. Johnson, 873 A.2d 704 (Pa. Super. 2005); Commonwealth v. Messmer, 863 A.2d 567, 573 (Pa. Super. 2004); Commonwealth v. Philipp, 709 A.2d 920 (Pa. Super. 1998). It is clear that in fashioning this sentence the Court did consider the individual circumstances concerning Harsh and the crimes he committed. Furthermore, the Court took into consideration defense counsel s comments on behalf of his client. Counsel reiterated that Harsh has struggled with a drug addiction throughout most of his adult life. He stressed that Harsh s prior criminal history is related to his drug addiction. (See also Motion to Modify at 7.) To the extent that Harsh argues that the trial court did not adequately consider these mitigating factors, i.e., [Harsh s] age [and] personal characteristics or life circumstances, which were presented by counsel at sentencing (see Motion to Modify at 8), such a claim is not supported by the record. In addition, I note that when sentencing an appellant, the trial court is permitted to consider the seriousness of the offense and its impact on the community. Commonwealth v. Roden, 730 A.2d 995, 998 (Pa. Super. 1999). Harsh has a 12-year history of committing crimes in this County and in Chester, Dauphin and Philadelphia Counties. 10 Clearly, he failed to adjust to his probationary periods and it was necessary to consider a sentence of confinement that takes into account the protection of the public. Harsh contends that sentencing him to an extended period of incarceration does not address his rehabilitative needs and that [w]ithout adequate treatment, [he] is likely to reoffend upon his release from prison. (See Motion to Modify at 7.) The fact that Harsh disagrees with the sentencing court's conclusion regarding his rehabilitative potential does not render the sentence imposed an abuse 10 The drug charges in Dauphin County dating from March 12, 2012, remain open at Information No

11 of discretion. See Commonwealth v. Gibson, 716 A.2d 1275, 1279 (Pa. Super. 1998) (sentence of 10 to 20 years imprisonment imposed for convictions of controlled substance possession with intent to deliver and conspiracy, which was outside sentencing guidelines, was appropriate where defendant was extensively involved in drugs at an early age, disregarded earlier opportunity to reform, failed to comply with court's previous sentencing orders, lost his job due to use of drugs, and spent his money on drugs rather than support his children). This Court obviously considered the fact that Harsh was in the Drug Court Program and provided with an opportunity to get clean and sober and live a law-abiding, productive life. Harsh continued to make extremely poor decisions and chose to reject the opportunities provided to him in Drug Court. He made the conscious decision to hold on to his addictive behaviors and to commit crimes. The judgment exercised in this case was neither manifestly unreasonable, nor the result of partiality, prejudice, bias or ill-will, and, as such, the Court did not abuse its discretion. The sentence imposed was neither clearly unreasonable nor so manifestly excessive as to constitute too severe a punishment. See Commonwealth v. Mouzon, 571 Pa. 419, , 812 A.2d 617, 625 (2002). III. Conclusion For the reasons set forth above, Harsh s motion to modify sentence will be denied. Accordingly, I enter the following: 11

12 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : v. : Nos , : JARED ANDREW HARSH : O R D E R AND NOW, this 19 th day of February, 2015, upon consideration of Defendant Jared Andrew Harsh s motion to modify sentence, it is hereby ORDERED that said motion is DENIED. 12

13 Pursuant to Pa. R.Crim.P. 708, this Court advises Defendant that he has the right to appeal from this Order denying his motion to modify the sentence imposed after his probation revocation at No but the appeal must be filed within 30 days from the date of the judgment of sentence imposed on January 27, Failure to appeal within 30 days of the judgment of sentence will result in the loss of appellate rights. Pursuant to Pa. R.Crim.P. 720, this Court advises Defendant that he has the right to appeal from this Order denying his motion to modify the sentence imposed at No Defendant shall have 30 days from the date of this final Order to appeal to the Superior Court of Pennsylvania. Failure to appeal within 30 days will result in the loss of appellate rights. Defendant is further advised that he has the right to assistance of counsel in the preparation of the appeal. If Defendant is indigent, he has the right to appeal in forma pauperis and to proceed with assigned counsel as provided in Pa. R.Crim.P BY THE COURT: DAVID L. ASHWORTH JUDGE ATTEST:

14 Copies to: Cheryl A. Ondechek, Assistant District Attorney Daniel M. Straszynski, Assistant Public Defender

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