Com. v. Rosario, K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMOWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH ROSARIO :
:
Appellant : No. 798 WDA 2019
Appeal from the Judgment of Sentence Entered February 21, 2019
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001262-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH ROSARIO :
:
Appellant : No. 799 WDA 2019
Appeal from the Judgment of Sentence Entered February 21, 2019
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0000223-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH ROSARIO :
:
Appellant : No. 800 WDA 2019
Appeal from the Judgment of Sentence Entered February 21, 2019
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001543-2013
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
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MEMORANDUM BY MURRAY, J.: FILED APRIL 16, 2020
Keith Rosario (Appellant) appeals from the judgment of sentence
imposed following the revocation of his probation in three cases. Upon review,
we vacate the judgment of sentence and remand for resentencing.
Appellant’s underlying convictions arose from three separate criminal
informations, accusing Appellant of twice selling illegal drugs to a confidential
informant, and possession of a firearm not to be carried without a license.
See Trial Court Opinion, 9/9/19, at 1-3. At docket number CP-63-CR-
0001262-2013, Appellant was charged with selling 1.7 grams of crack cocaine
to a confidential informant on June 1, 2011. Id. at 2. At docket number CP-
63-CR-0000223-2015, Appellant was charged with selling 6.7 grams of
marijuana to a confidential informant on March 15, 2011. Id. at 2-3. At
docket number CP-63-CR-0001543-2013, Appellant was charged with
possessing a .38 special revolver without a license on May 23, 2013. Id. at
3.
On May 4, 2015, Appellant entered a global guilty plea at all three
criminal docket numbers, pleading guilty to two counts of delivery of a
controlled substance and one count of firearms not to be carried without a
license.1 The same day, the trial court sentenced Appellant at docket number
CP-63-CR-0001543-2013 to 2½ to 5 years of imprisonment, at docket number
CP-63-CR-0001262-2013 to 5 years of probation consecutive to his term of
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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 6106(a).
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imprisonment at docket number CP-63-CR-0001543-2013, and at docket
number CP-63-CR-0000223-2015 to 1 year of probation, concurrent to his
probation sentence at docket number CP-63-CR-0001262-2013.
Appellant was subsequently paroled; however, while on parole, he was
charged with “attempted homicide, aggravated assault, kidnapping and
firearms charges[] at [docket] number CP-63-CR-0002611-2017.” Trial Court
Opinion, 9/9/19, at 6 (citation omitted). As a result, the Commonwealth
alleged that Appellant violated the terms of his parole and probation.2
Appellant appeared before the trial court on May 7, 2018 for a Gagnon II3
hearing. At the conclusion of the hearing, the trial court found Appellant to
be in violation of his supervision and revoked both his parole and probation.
See N.T., 5/7/18, at 15. On February 21, 2019, the trial court resentenced
Appellant to the balance of his 2½ to 5 year term of imprisonment originally
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2 While Appellant was on parole from his incarceration at docket number CP-
63-CR-0001543-2013 when the Commonwealth filed its petition for
revocation, and had not yet begun serving his probationary sentences at the
other two dockets, the “fact that [A]ppellant had not commenced serving
probation when the new offense occurred did not prevent the court from
revoking its prior order placing [A]ppellant on probation.” Commonwealth
v. Ware, 737, A.2d 251, 253 (Pa. Super. 1999) (“If, at any time before the
defendant has completed the maximum period of probation, or before he
has begun service of his probation, he should commit offenses of such
nature as to demonstrate to the court that he is unworthy of probation . . .
the court [can] revoke or change the order of probation.”) (emphasis in
original).
3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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imposed at docket number CP-63-CR-0001543-2013, 5 to 10 years of
imprisonment at docket number CP-63-CR-0001262-2013, and 5 years of
probation at docket number CP-63-CR-0000223-2015, to be served
consecutive to one another.4
Appellant filed a motion for reconsideration of sentence on March 4,
2019.5 The trial court denied Appellant’s motion on May 1, 2019. Thereafter,
Appellant filed three separate timely notices of appeal.6 Both Appellant and
the trial court have complied with Pennsylvania Rule of Appellate Procedure
1925.
Appellant presents three issues for review:
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4 In resentencing Appellant for his parole violation, the trial court was limited
to recommitting him “to serve the remainder of the term which [Appellant]
would have been compelled to serve had the parole not been granted[.]” 61
Pa.C.S.A. § 6138(a)(2). However, upon revoking Appellant’s probationary
sentences at the other two dockets, the trial court had at its disposal all
“sentencing alternatives available to the court . . . at the time of initial
sentencing.” 42 Pa.C.S.A. § 9771(b).
5 The corresponding docket entry incorrectly indicates the document was filed
on March 5, 2019, as opposed to March 4, 2019. As Appellant filed his motion
for reconsideration on March 4, 2019, as reflected by its time stamp, the
motion was timely filed, despite the clerk of courts incorrectly making the
“docket entry reflecting the date of receipt” as required by Pa.R.Crim.P.
576(A)(3).
6 Appellant has complied with our Supreme Court’s holding in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) by filing separate
notices of appeal at each docket, “where a single order resolves issues arising
on more than one docket.” Id. at 971.
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1. The [trial] court failed to adequately state reasons on the record
on how the imposed sentence would serve the purposes defined
in 42 Pa.C.S. § 9721(b).
2. The [trial] court’s sentence was excessive and based upon
improper factors.
3. The [trial court], in re-sentencing Appellant, failed to make a
determination under the Recidivist Risk Reduction Incentive
statute. 42 Pa.C.S.A. § 9755(b.1)[.]
Appellant’s Brief at 6-7 (reordered for ease of disposition).7
Appellant’s first two issues challenge the discretionary aspects of his
sentence. “The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for permission to
appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.
2014). “An appellant must satisfy a four-part test to invoke this Court’s
jurisdiction when challenging the discretionary aspects of a sentence.” Id.We conduct this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
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7 Appellant’s Rule 1925(b) statement raises two additional discretionary
sentencing claims. See Rule 1925(b) Statement, 6/24/19, at 4-5. However,
because Appellant abandoned these claims in his brief, we do not address
them. See Appellant’s Brief at 6-7; see also Commonwealth v. Briggs, 12
A.3d 291, 310 n.19 (Pa. 2011), cert. denied, 132 S.Ct. 267 (2011) (refusing
to address claim appellant raised with trial court but subsequently abandoned
in brief).
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Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Appellant has complied with the first three prongs of this test by raising
his sentencing claims in a timely post-sentence motion, filing timely notices
of appeal, and including in his brief a Rule 2119(f) concise statement. See
Appellant’s Brief at 1-5. Therefore, we examine whether Appellant presents
a substantial question.
Appellant argues that the trial court “failed to state on the record below
pursuant to 42 Pa.C.S.A. § 9721(b) how the sentence of confinement was
consistent with the protection of the public, 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.” Appellant’s Brief at 2. We have held
that such a challenge presents a substantial question for our review. See
Commonwealth v. Derry, 150 A.3d 987, 994-95 (Pa. Super. 2016) (claim
that a VOP sentencing court failed to consider the factors under 42 Pa.C.S.A.
§ 9721(b) raises a substantial question). Appellant also argues that the trial
court’s sentence was excessive, and claims that the court relied upon an
improper factor. Appellant’s Brief at 7. This also raises a substantial question.
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See Commonwealth v. Downing, 990 A.2d 788, 2010 (Pa. Super. 2010)
(claim that trial court relied on improper factors raises a substantial question).
Turning to the merits, we recognize:
In selecting from the alternatives set forth in subsection (a), the
court shall 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. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
“Revocation of a probation sentence is a matter committed to the sound
discretion of the trial court and that court’s decision will not be disturbed on
appeal in the absence of an error of law or an abuse of discretion.”
Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation
omitted). Following revocation, a sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence of total confinement,
but the record as a whole must reflect the sentencing court’s consideration of
the facts of the crime and character of the offender. Commonwealth v.
Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
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the defendant’s character and weighed those considerations along
with mitigating statutory factors. Additionally, the sentencing
court must state its reasons for the sentence on the record. 42
Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the
record by indicating that he or she has been informed by the pre-
sentencing report; thus properly considering and weighing all
relevant factors.
Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,
154 (Pa. Super. 2004)) (citations omitted).
After thorough review of the record, we are constrained to agree with
Appellant that the trial court failed to comply with Section 9721(b) of the
Sentencing Code. Prior to imposing Appellant’s sentence, the trial court
stated:
Taking into account the seriousness of the charges that are before
this [c]ourt, which were firearms, and at No. 1543-2013 and drugs
at the other two numbers, and these were transactions of drugs,
furthermore, as the [c]ourt recalls from the affidavit and the trial
of your co-defendant Mr. Escribano, the 911 call that resulted in
these charges being filed, these firearm charges being filed were
that shots were being fired, the fact that [Appellant] was only
paroled for four months, is there any question about that, before
the new charges were brought? . . . And for the aggravating nature
of the new charges and incorporating the reasons set forth on the
record during the original plea, the [c]ourt does find that it’s
appropriate to depart from the guidelines.
N.T., 2/21/19, at 13-14.
While the trial court notes the seriousness of Appellant’s underlying
convictions and the aggravating nature of the charges he acquired while on
parole, instead of giving consideration to the sentencing factors set forth in
Section 9721(b) and placing additional reasons for Appellant’s sentence on
the record, the court incorporates the reasons set forth on the record at
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Appellant’s original sentencing hearing held on May 4, 2015. N.T., 2/21/19,
at 13-14.
Importantly, and contrary to its statement at Appellant’s resentencing,
our review reveals that at Appellant’s original sentencing hearing, the trial
court failed to explain the sentence, cite any legitimate sentencing factor, or
provide a reason for its imposition of Appellant’s original sentence. See N.T.,
5/4/2015, at 1-11. Immediately after accepting Appellant’s guilty plea, the
trial court announced the sentence in open court without any
acknowledgement of the factors set forth in Section 9721(b), or any other
legitimate sentencing factor. Id. at 7-8.
Upon review of the entire record, we cannot say the trial court gave
adequate consideration to the sentencing factors delineated in Section
9721(b). The only statements made by the court during Appellant’s
resentencing which could arguably be regarded as an explanation for
Appellant’s sentence, were references to the seriousness of both Appellant’s
underlying convictions, and the crimes that formed the basis for his
revocation. The court failed to consider or discuss how Appellant’s age, family
history, and rehabilitative needs contributed to the sentence. The trial court
also failed to address how the sentence is designed for the protection of the
public, and did not place on the record its understanding or acknowledgment
of the applicable sentencing guidelines for resentencing. Accordingly, we are
constrained to conclude that the trial court failed to impose an individualized
sentence “consistent with the protection of the public, the gravity of the
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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).
Appellant further contends the trial court could not have properly
complied with Section 9721(b) because it did not have the benefit of a pre-
sentence investigation report (PSI report) at resentencing, “nor did the court
state on the record why it dispensed with obtaining a [PSI] report.”
Appellant’s Brief at 17.
Rule 702 of the Pennsylvania Rules of Criminal Procedure provides:
(A) Pre-sentence Investigation Report
(1) The sentencing judge may, in the judge’s discretion, order a
pre-sentence investigation report in any case.
(2) The sentencing judge shall place on the record the reasons for
dispensing with the pre-sentence investigation report if the judge
fails to order a pre-sentence report in any of the following
instances:
(a) when incarceration for one year or
more is a possible disposition under the
applicable sentencing statutes; . . .
Pa.R.Crim.P. Rule 702.
We have previously stated that the mandate for the PSI springs
from the imperative of individualized sentencing; each person
sentenced must receive a sentence fashioned to his or her
individual needs. To achieve that objective, the trial judge, before
imposing sentence, even on a probation or parole revocation,
must actively explore the defendant’s character and his potential
response to rehabilitation programs. Indeed, given the
defendant’s failure to respond to the original sanction of
probation, the need for scrutiny of his character and underlying
social influences is arguably enhanced, confirming the need of a
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current PSI report contoured to reflect the defendant’s most
recent offenses.
Commonwealth v. Kelly, 33 A.3d 638, 641 (Pa. Super. 2011) (citation
omitted).
While Rule 702 “vests discretion in the trial court to dispense with a PSI,
it also mandates that under certain circumstances the court must document
its reasons for doing so.” Commonwealth v. Flowers, 950 A.2d 330, 332-
33 (Pa. Super. 2008) (footnote omitted). We have noted the “possibility that
technical noncompliance with the requirements of Rule 702(A)(2) might be
rendered harmless [if the trial court elicits] sufficient information during the
colloquy to substitute for a PSI report, thereby allowing a fully informed
sentencing decision.” Id. at 333 (citation omitted). However, “in the absence
of a PSI, the court must conduct a pre-sentence inquiry such that it is apprised
of the particular circumstances of the offense, not limited to those of record,
as well as defendant’s history and background.” Commonwealth v. Kelly,
33 A.3d 638, 642 (Pa. Super. 2011) (citation omitted).
Here, the trial court did not order a PSI report in advance of Appellant’s
resentencing.8 Appellant faced a possible sentence of more than one year,
and thus, under Rule 702(A)(2)(a), the court was required to state on the
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8 The Commonwealth confirms the trial court did not order a PSI report to aid
in resentencing Appellant. Commonwealth Brief at 7. Further, our review of
the transcript from Appellant’s original sentencing hearing evidences that no
PSI report was prepared for that hearing, and no explanation was offered for
its absence. See N.T., 5/4/2015, at 1-11.
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record its reasons for dispensing with a PSI report. No explanation was
provided. See N.T., 2/21/19, at 1-17. Therefore, the trial court was required
to conduct a pre-sentence inquiry of the particular circumstances of the
offense, not limited to those of record, as well as defendant’s history and
background. Kelly, 33 A.3d at 642.
We observe that a properly crafted PSI report must at least address
the following factors:
(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;
(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 education facilities,
rehabilitative programs of various institutions to which the
offender might be committed, special programs in the probation
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department, and other similar programs which are particularly
relevant to the offender’s situation;
(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.
Flowers, 950 A.2d at 334 n.2.
The information heard by the trial court and its questions to Appellant
during resentencing do not “approach the level of thoroughness afforded by a
properly crafted PSI report.” Id. at 333 (citations omitted). At resentencing,
the only inquiry the trial court made as to Appellant’s background or the facts
surrounding his case was when it asked Appellant whether anything “positive”
occurred while he was on parole, whether he completed court-mandated boot
camp, and what type of labor he did while on parole. N.T., 2/21/19, at 7-8.
The court did not hear or attempt to acquire information regarding Appellant’s
prior criminal record, education, employment history, familial relationships,
interests and activities, residence history, or information about resources
available to assist Appellant. The record therefore indicates that “the trial
court sentenced [Appellant] without obtaining even the most basic personal
information necessary to enable it to craft a sentence tailored to [Appellant’s]
individual and rehabilitative needs.” Kelly, 33 A.3d at 642. Thus, the trial
court’s noncompliance with Rule 702(A) was not harmless in this case, and
supports remand. See id. (vacating a sentence and remanding for
resentencing where the trial court failed to place on the record its reasons for
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dispensing with a PSI report, and failed to conduct a sufficient pre-sentence
inquiry in the absence of a report).
Our careful review of the record reveals that the trial court did not
properly consider of the facts of the crime and the character of the Appellant,
Crump, 995 A.2d at 1283, such that the trial court has failed to comply with
the requirements of Section 9721(b) of the Sentencing Code. Further, the
trial court did not have the benefit of a PSI report, the record is devoid of an
explanation as to why a report was not ordered, and the trial court failed to
overcome Rule 702’s requirements of eliciting sufficient information during
resentencing to suffice for the absence of a PSI report. We are therefore
constrained to conclude that the trial court abused its discretion in
resentencing Appellant.9
In his final claim, Appellant argues that his sentence is illegal because
the trial court failed to make a determination on the record at resentencing as
to his eligibility for the Recidivism Risk Reduction Incentive (RRRI) program.10
See Appellant’s Brief at 20. In response, the Commonwealth concedes that
the trial court “did not make a determination under the RRRI statute[.]”
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9 As we are remanding for resentencing because the trial court failed to comply
with Section 9721(b) of the Sentencing Code and Pennsylvania Rule of
Criminal Procedure 702, we do not address Appellant’s second discretionary
claim pertaining to whether his sentence was excessive and based upon
improper factors.
10 61 Pa.C.S.A. §§ 4501-4512.
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Commonwealth Brief at 13 (citation omitted). Because RRRI eligibility
“concerns a matter of statutory interpretation and is, thus, a pure question of
law, our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Chester, 101 A.3d 56, 60 (Pa. 2014) (citation omitted).
Section 9756(b.1) of the Sentencing Code provides that a trial court
imposing sentence “shall determine if the defendant is eligible for a recidivism
risk reduction incentive minimum sentence under 61 Pa.C.S. Ch. 45.” Id.;
see also 61 Pa.C.S.A. § 4505(a) (“At the time of sentencing, the court shall
make a determination whether the defendant is an eligible defender.”).
Accordingly, this Court has explicitly stated that, “where the trial court fails to
make a statutorily required determination regarding a defendant’s eligibility
for an RRRI minimum sentence as required, the sentence is illegal.”
Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).
Upon review, we agree that the trial court failed to make a determination
as to Appellant’s RRRI eligibility. See N.T., 2/21/19, at 1-17. Appellant’s
sentence is therefore illegal. At remand, the court shall make an on-the-
record finding as to Appellant’s RRRI eligibility.
In sum, the trial court abused its discretion in both resentencing
Appellant and failing to make an RRRI determination. Accordingly, we vacate
Appellant’s judgment of sentence and remand for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/2020
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