Com. v. Vega, W.

J-S25041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WALTER VEGA, JR.
Appellant No. 1585 WDA 2015
Appeal from the Judgment of Sentence June 18, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000368-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 17, 2016
Walter Vega, Jr. appeals from a judgment of sentence of 2½-5 years’
imprisonment imposed following revocation of his probation. His sole issue
in this appeal is:
Did the trial court abuse its discretion by imposing consecutive
statutorily allowed maximum revocation sentences, without
considering [Vega’s] age, family history, rehabilitative needs,
and a pre-sentence investigative report, resulting in an
aggregate excessive, unreasonable, and harsh sentences
contrary to the fundamental norms that underlie the sentencing
process considering the nature of the crimes?
Brief For Appellant, at 5. In essence, Vega contends that the trial court
failed to review a pre-sentence investigation report (“PSI”) before imposing
Vega’s post-revocation sentence. Vega has waived this issue; accordingly,
we affirm.
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On September 6, 2013, the Commonwealth filed an information
charging Vega with, inter alia, resisting arrest, institutional vandalism and
disorderly conduct.1 On October 16, 2013, Vega entered a negotiated guilty
plea to these offenses, and the court sentenced him to two years’ probation
for institutional vandalism, a concurrent term of two years’ probation for
resisting arrest, and one year of probation, consecutive to the other
sentences, for disorderly conduct.
The transcript from Vega’s October 16, 2013 guilty plea hearing is not
in the certified record.
On June 18, 2014, Vega appeared for a revocation of probation
hearing before the same judge who imposed his initial sentence. Vega
admitted that he violated multiple terms of probation, including (1) failing to
report to his probation officer between December 2013 and January 2014,
(2) moving from his approved residence without notifying his probation
officer, (3) consuming alcohol, and (4) pleading guilty to a new charge of
simple assault2 for a domestic incident with his girlfriend on February 6,
2014. N.T., 6/18/14, at 2-4. Following his arrest on the new simple assault
charge, Vega damaged a prison cell and brawled with his cellmate. Id. at 3-
4.
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1
18 Pa.C.S. §§ 5104, 3307(a)(3) and 5503(a)(1), respectively.
2
18 Pa.C.S. § 2701. Vega was sentenced to 2 years’ probation for this new
offense. Id. at 2.
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The court revoked Vega’s probation and imposed consecutive
sentences of 1-2 years’ imprisonment for institutional vandalism, 1-2 years’
imprisonment for resisting arrest and 6-12 months’ imprisonment for
disorderly conduct, the maximum available sentence for each offense.3 N.T.,
6/18/14, at 4. The court explained that it was sentencing Vega to
imprisonment because the convictions underlying his probationary sentence
were “anger-type” in nature, and his conduct while on probation
demonstrated no attempt to reform. N.T., 6/18/14, at 4. The court
admitted in its Pa.R.A.P. 1925 opinion that it did not obtain a pre-sentence
investigation report (“PSI”) for purposes of Vega’s revocation hearing or
state on the record that it had considered Vega’s age, family history or
rehabilitative needs. Id. at 2. Nevertheless, the court justified its sentence
by observing that Vega’s “crime and character” were “foremost in this
Court’s mind” at the revocation hearing. Id.
Vega did not appeal within thirty days after the new judgment of
sentence. On February 23, 2015, however, he filed a PCRA petition alleging
that his trial counsel failed to comply with his request to file a direct appeal.
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3
Resisting arrest is a second degree misdemeanor, 18 Pa.C.S. § 5104, for
which the maximum sentence is 1-2 years’ imprisonment. 18 Pa.C.S. §
106(b)(7). Vega’s offense of institutional vandalism was graded as a second
degree misdemeanor under 18 Pa.C.S. § 3307, for which the maximum
sentence is 1-2 years’ imprisonment. Vega’s offense of disorderly conduct
was graded as a third degree misdemeanor under 18 Pa.C.S. § 5503, for
which the maximum sentence was 6 months–1 year of imprisonment. 18
Pa.C.S. § 106(b)(8).
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In an order dated September 15, 2015, the trial court reinstated Vega’s
direct appeal rights and authorized him to file post-sentence motions within
the next ten days.
On September 24, 2015, Vega filed a timely motion to modify his
sentence. The court denied this motion the next day. Vega filed a timely
notice of appeal, and both Vega and the trial court complied with Pa.R.A.P.
1925.
Vega’s appeal consists of a challenge to the discretionary aspects of
his sentence. 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.
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super.2014).
“Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011). Before this Court can address such a discretionary
challenge, an appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
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four-part test: (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 question that the sentence
appealed from is not appropriate under the Sentencing Code.
Allen, 24 A.3d at 1064.
Here, Vega filed a timely appeal, raised his claim of excessiveness in a
post-sentence motion and provided a concise statement in his brief for
allowance of appeal with respect to the discretionary aspects of sentence. In
addition, the argument in Vega’s brief – imposition of consecutive sentences
without first reviewing a PSI – presents a substantial question for appeal.
See Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa.Super.2008)
(claim that trial court failed to order PSI or conduct appropriate colloquy at
sentencing hearing raised substantial question).
Despite satisfying Allen’s four-part test, Vega has waived this issue
for a different reason. The court’s failure to review a PSI at the revocation
hearing is excusable when the court had the benefit of a PSI at the original
sentencing hearing. See Commonwealth v. Pasture, 107 A.3d 21, 27-29
(Pa.2014). Here, the transcript from Vega’s initial sentencing hearing on
October 16, 2013 is missing from the record. Consequently, we cannot tell
whether the court reviewed a PSI at Vega’s initial sentencing hearing, which
in turn prevents us from determining whether the court abused its discretion
at Vega’s revocation hearing. As the appellant, Vega has the duty to ensure
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that the certified record is complete for purposes of appellate review. See
Commonwealth v. Gonzalez, 109 A.3d 711, 725 (Pa.Super.2015). Vega
must bear the blame for the absence of the October 16, 2013 transcript
from the record.
For the benefit of the parties, we explain Vega’s waiver in further
depth. The Pennsylvania Rules of Criminal Procedure vest a sentencing
judge with the discretion to order a PSI as an aid in imposing an
individualized sentence. The Rules provide in relevant part:
(1) The sentencing judge may, in the judge's discretion, order a
[PSI] in any case.
(2) The sentencing judge shall place on the record the reasons
for dispensing with the [PSI] if the judge fails to order a [PSI] 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. 702(A)(1), (2)(a). When ordered, the PSI shall be available to
the sentencing judge and other specified individuals for review, but it cannot
become part of the record. Pa.R.Crim.P. 703(A).
We have discussed the role of the PSI as follows:
The first responsibility of the sentencing judge [is] to be sure
that he ha[s] before him sufficient information to enable him to
make a determination of the circumstances of the offense and
the character of the defendant. Thus, a sentencing judge must
either order a PSI report or conduct sufficient presentence
inquiry such that, at a minimum, the court is apprised of the
particular circumstances of the offense, not limited to those of
record, as well as the defendant's personal history and
background....The court must exercise “the utmost care in
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sentence determination” if the defendant is subject to a term of
incarceration of one year or more[.]
To assure that the trial court imposes sentence in consideration
of both “the particular circumstances of the offense and the
character of the defendant,” our Supreme Court has specified
the minimum content of a PSI report. The “essential and
adequate” elements of a PSI report include all of 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;
(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
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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;
(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.
[While case law does not] require that the trial court order a pre-
sentence investigation report under all circumstances, the cases
do appear to restrict the court's discretion to dispense with a PSI
report to circumstances where the necessary information is
provided by another source. Our cases establish, as well, that
the court must be apprised of comprehensive information to
make the punishment fit not only the crime but also the person
who committed it.
Commonwealth v. Carillo-Diaz, 64 A.3d 722, 725-26 (Pa.Super.2013).
When the court revokes probation, PSI procedures continue to apply,
Carillo-Diaz, 64 A.3d at 725 n.3, with one important modification.
Specifically, when the trial court obtains a PSI for an initial sentencing
hearing, it is not mandatory to obtain a new, second PSI before revoking
probation and imposing a new sentence. Pasture, 107 A.3d at 27-29.
In Pasture, the defendant entered an Alford4 plea to aggravated
assault and corruption of minors. The trial court initially sentenced the
defendant to 11½-23 months’ imprisonment, followed by 8 years of
reporting probation, for aggravated indecent assault, plus five consecutive
____________________________________________
4
North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (trial court does not
commit constitutional error in accepting guilty plea despite defendant's claim
of innocence).
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years’ reporting probation for corruption of minors. The court had the
benefit of a PSI before imposing sentence. Id. at 23, 28-29. While serving
his probationary term, the defendant began using drugs and alcohol in
violation of a condition of probation. Without obtaining a new PSI, the trial
court revoked the defendant’s probation and sentenced him to 2½-5 years’
imprisonment, followed by three years of probation, for his aggravated
indecent assault conviction, plus a consecutive five years’ probation for his
corruption of minors conviction. The Superior Court vacated the defendant’s
judgment of sentence and remanded for resentencing based on, inter alia,
the trial court’s failure to obtain a new PSI prior to resentencing.
Our Supreme Court reversed and reinstated the defendant’s sentence.
The Court observed that following revocation of probation,
a sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the
statutes in question. Simply put, since the defendant has
previously appeared before the sentencing court, the stated
reasons for a revocation sentence need not be as elaborate as
that which is required at initial sentencing. The rationale for this
is obvious. When sentencing is a consequence of the revocation
of probation, the trial judge is already fully informed as to the
facts and circumstances of both the crime and the nature of the
defendant, particularly where, as here, the trial judge had the
benefit of a PSI during the initial sentencing proceedings. See
[Commonwealth v.] Walls, 926 A.2d [957,] 967 n.7
[(Pa.2007)] (‘Where [a PSI] exist[s], we shall continue to
presume that the sentencing judge was aware of the relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors’).
Contrary to the Superior Court's suggestion in the instant case,
there is no absolute requirement that a trial judge, who has
already given the defendant one sentencing break after having
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the benefit of a full record, including a PSI, must order another
PSI before fashioning the appropriate revocation sentence.
Pasture, 107 A.3d at 28. The Court further reasoned:
[A]fter entering his plea, Pasture initially received a lenient
sentence for aggravated indecent assault and corruption of
minors. In fact, Pasture originally received a mitigated-range
sentence, and the bulk of his sentence was probationary in
nature. Despite this, he failed to adhere to the conditions
imposed upon him, and the trial court, upon revocation of the
probation, imposed a lengthier sentence, which was within the
statutory bounds. We emphasize a trial court does not
necessarily abuse its discretion in imposing a seemingly harsher
post-revocation sentence where the defendant received a lenient
sentence and then failed to adhere to the conditions imposed on
him … In point of fact, where the revocation sentence was
adequately considered and sufficiently explained on the record
by the revocation judge, in light of the judge's experience with
the defendant and awareness of the circumstances of the
probation violation, under the appropriate deferential standard of
review, the sentence, if within the statutory bounds, is peculiarly
within the judge's discretion.
In the instant case, the record confirms that the revocation court
judge, who had previously presided over Pasture's plea, Megan's
Law II, and original sentencing hearings, was in possession of a
PSI from the initial sentencing proceedings and heard evidence
at the revocation hearing regarding Pasture's conduct while he
was on probation. Thus, the revocation court was provided with
sufficient information to make a fully informed sentence
following the revocation of Pasture's probation. Additionally, the
revocation court explained the court's attempts to address
Pasture's rehabilitative needs through probation in conjunction
with drug treatment had failed, and despite the fact Pasture's
probation officer had afforded him numerous opportunities to
conform to the terms of his probation, Pasture continued to use
prohibited substances similar to the ones he had used when he
committed his prior sex offenses against children.
Id. at 28-29. In essence, although the trial court did not obtain a new PSI
for Pasture’s revocation hearing, his post-revocation sentence was proper
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because of (1) the trial court’s possession of a PSI prior to his initial
sentencing hearing and (2) his misconduct on probation.
In this case, Vega contends that his sentence following revocation of
probation was improper because the court failed to review a PSI during his
revocation hearing. At the time of Vega’s initial sentence, he faced the
possibility of a sentence of imprisonment of one year or more. See n. 3,
supra. Thus, Rule 702 required the trial court either to obtain a PSI or to
place reasons on the record for dispensing with a PSI. If the trial court
obtained a PSI at the time of initial sentencing, it was unnecessary to obtain
a new PSI for Vega’s revocation hearing, because (1) the same judge who
had presided over Vega’s initial sentencing hearing was in possession of a
PSI from initial sentencing and heard evidence at the revocation hearing
regarding Vega’s conduct while he was on probation, see Pasture, 107 A.3d
at 29; and (2) the PSI from initial sentencing would have addressed the
factors that Vega claims the court failed to consider at his revocation
hearing: his “age, family history and rehabilitative needs.” Brief For
Appellant, at 5; see also Carillo-Diaz, 64 A.3d at 726 (PSI must include,
inter alia, offender’s complete social history, family history and resources
available for rehabilitation).
To determine whether the trial court had a PSI at Vega’s initial
sentencing hearing, we need to review the transcript from this hearing,
which would either have stated that the court was in possession of a PSI or
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explained why the court dispensed with a PSI. The omission of the initial
sentencing hearing transcript from the certified record prevents us from
learning whether the court obtained a PSI for Vega’s initial sentencing, which
in turn prevents us from addressing Vega’s argument that the court abused
its discretion at his revocation hearing. As a result, Vega has waived this
argument. See Commonwealth v. Powell, 956 A.2d 406, 422–23
(Pa.2008) (defendant waived appellate review of claim that trial court erred
in admitting autopsy photograph during capital murder trial; photograph was
not contained in certified record, leaving appellate court unable to assess
defendant's claim that photograph was gruesome and was likely to inflame
jury’s passions); Gonzalez, 121 A.3d at 724-25 (appellant waived argument
that trial court erred in admitting victim’s audiotaped statement to police
into evidence, which he claimed inflamed the jury against him due to
victim’s sobbing voice, where certified record did not include audiotape).
Judgment of sentence affirmed.
Judge Mundy joins the memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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