Com. v. Barone, P. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL BARONE
Appellant No. 1120 WDA 2014
Appeal from the Judgment of Sentence June 4, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009732-2012
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 20, 2015
Appellant, Paul Barone, appeals from the judgment of sentence
entered following the revocation of his probation on June 4, 2014, in the
Court of Common Pleas of Allegheny County. After review, we vacate the
judgment of sentence and remand for resentencing.
Barone originally entered a guilty plea to criminal trespass on March
25, 2013, and was sentenced to seven years’ probation. A year later,
Barone violated his probation and was re-sentenced to one year of
intermediate punishment followed by five years’ probation.
A little over a year after that, Barone once again appeared for a
probation violation hearing after testing positive for opiates. A pre-sentence
investigation report (PSI) was not requested prior to sentencing, and the
revocation court did not offer its reasons for not requesting a PSI or
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otherwise receive any pertinent sentencing information. At the conclusion of
the brief hearing, the court summarily revoked Barone’s probation and re-
sentenced him to 18 to 36 months’ imprisonment. Barone filed a motion for
reconsideration of sentence, which the court denied. This timely appeal
followed.
Barone argues on appeal that the revocation court erred in imposing a
sentence without requesting a PSI report or otherwise taking into
consideration his background, character, or rehabilitative needs. This issue
challenges the discretionary aspects of Barone’s sentence. Our scope of
review in an appeal from a revocation sentencing includes discretionary
sentencing challenges. See Commonwealth v. Cartrette, 83 A.3d 1030,
1034 (Pa. Super. 2013) (en banc). Therefore, Barone’s claim is properly
before us.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[We] conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
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question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Barone filed a timely appeal and challenged his sentence in a
post-sentence motion.1 Barone’s appellate brief also contains the requisite
2119(f) concise statement. Therein, Barone’s challenge focuses on the
sentencing court’s failure to order a PSI report or conduct an appropriate
colloquy at sentencing. See Appellant’s Brief at 13. These claims raise
substantial questions for our review. See Commonwealth v. Flowers, 950
A.2d 330, 332 (Pa. Super. 2008).
“Imposition of a sentence is vested in the discretion of the sentencing
court and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Smith, 673 A.2d 893, 895 (1996) (citation omitted).
We proceed to the merits.
A PSI report may be requested for sentencing at the discretion of the
sentencing court. See Pa.R.Crim.P 702(A)(1). If the sentencing court does
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1
In its Rule 1925(a) opinion, the lower court concludes that Barone’s
apparent failure to serve the court with a copy of his Rule 1925(b) Concise
Statement of Errors Complained of on Appeal, filed with the Department of
Court Records on August 26, 2014, results in waiver of his claim on appeal.
See Trial Court Opinion, 12/4/14. In its brief, the Commonwealth agrees
with Barone’s suggestion that, in the interests of judicial economy, we
should not find waiver of Barone’s claims. See Commonwealth’s Brief at 10.
As there is no objection from the Commonwealth, we decline to find waiver
in this instance.
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not order a PSI report, the sentencing court must “place on the record the
reasons for dispensing with the pre-sentence investigation report … when
incarceration for one year or more is a possible disposition under the
applicable sentencing statutes.” Pa.R.Crim.P 702(A)(2)(a).
The reasoning given for not requesting a PSI report must, “even on a
probation or parole revocation, … actively explore the defendant's character
and his potential response to rehabilitation programs.” Commonwealth v.
Kelly, 33 A.3d 638, 641 (Pa. Super. 2011) (citation omitted). An active
exploration into the defendant’s character and potential responses may
include information normally found in PSI reports such as the following:
(A) a complete description of the offense and the
circumstances surrounding it, not limited to aspects
developed for the record as part of the determination of
guilt;
(B) a full description of any prior criminal record of the
offender;
(C) a description of the educational background of the
offender;
(D) a description of the employment background of the
offender, including any military record and including his
present employment status and capabilities;
(E) the social history of the offender, including family
relationships, marital status, interests and activities,
residence history, and religious affiliations;
(F) the offender's medical history and, if desirable, a
psychological or psychiatric report;
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(G) information about environments to which the offender
might return or to which he could be sent should probation
be granted;
(H) supplementary reports from clinics, institutions and other
social agencies with which the offender has been involved;
(I) information about special resources which might be
available to assist the offender, such as treatment centers,
residential facilities, vocational training services, special
educational facilities, rehabilitative programs of various
institutions to which the offender might be committed,
special programs in the probation department, and other
similar programs which are particularly relevant to the
offender's situation; [and]
(J) a summary of the most significant aspects of the report,
including specific recommendations as to the sentence if
the sentencing court has so requested.
Id. at 641-42 (citation omitted). Even if a sentencing court is familiar with a
defendant, a PSI report is still necessary to provide a sufficient amount of
information for sentencing. See Flowers, 950 A.2d at 333-34.
Here, the sentence for Barone’s probation violation carried a possible
incarceration period of greater than one year. Therefore, the sentencing
court should have requested a PSI report or provided reasoning for not
ordering the PSI report. See Pa.R.Crim.P 702(A)(2)(a). During the
sentencing hearing, however, the sentencing court did not receive a PSI
report or give a reason for not requesting a PSI report. Indeed, the two-
page sentencing transcript reveals that the sentencing court did not receive
any pertinent sentence information or conduct an appropriate colloquy for
not requesting a PSI prior to imposing sentence. Although the sentencing
court was familiar with Barone and his case, familiarity with the case alone
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does not mean there was enough information to sentence Barone without a
PSI. See Flowers, 950 A.2d at 333-34.
Based on the foregoing, we agree with Barone that the information (or
lack thereof) provided during the sentencing hearing was not sufficient to
determine an accurate individualized sentence. Accordingly, we are
constrained to vacate the judgment of sentence and remand for re-
sentencing.
On remand, the sentencing court must either order a PSI report or
conduct a comprehensive colloquy that offers the equivalent information a
PSI report would otherwise provide.
Judgment of sentence vacated. Case remanded for re-sentencing in
accordance with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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