Com. v. Haag, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STEPHEN J. HAAG
Appellant No. 1610 EDA 2014
Appeal from the Judgment of Sentence April 8, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001469-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2015
Appellant, Stephen J. Haag, appeals from the judgment of sentence
entered following his guilty plea to one count of possession of drug
paraphernalia and one count of possession of a small amount of marijuana.
Haag contends that the sentence imposed by the trial court is excessive, and
violates his right against cruel and unusual punishment. After careful
review, we affirm.
In May 2013, Pocono Mountain Regional Police (“PMRP”) received a tip
from a confidential informant that Haag, a convicted felon, was in possession
of a firearm. A check of departmental records revealed that on April 9,
2013, during a burglary investigation, a PMRP officer had observed a gun in
plain view in the bedroom Haag shared with his ex-wife, Carla Dekis.
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Further investigation revealed that a handgun matching the description of
the one seen during the burglary investigation was registered to Dekis.
PMRP officers obtained a search warrant for the house shared by Haag
and Dekis. Officers found the gun in the bottom drawer of a dresser in the
bedroom. Officers also found two clear baggies containing small amounts of
marijuana as well as assorted pipes containing marijuana residue, as well as
a grinder.
Haag was charged with possession of a small amount of marijuana,
possession of drug paraphernalia, and felony possession of a firearm by a
disqualified person. Haag filed motions seeking a finding of diminished
mental capacity, or in the alternative, a jury instruction regarding guilty but
mentally ill. The trial court denied both motions, and on February 3, 2014,
Haag pled guilty to the drug-related charges; the firearm charge was
dropped.
Haag was subsequently sentenced to 6 to 12 months’ imprisonment on
the paraphernalia charge, and a concurrent sentence of 15 to 30 days on the
marijuana charge. Haag filed post-sentence motions, which the trial court
denied. This timely appeal followed.
On appeal, Haag raises two issues for our review. First, Haag argues
that the trial court abused its discretion in imposing a sentence in the
aggravated range of the sentencing guidelines. Haag concedes that this
claim raises a challenge to the discretionary aspects of the sentence
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imposed. See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa.
Super. 2007).
“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). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274. “First, an appellant must set forth in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Id.
“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
Id. That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at
365. We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
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underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id.
In the present case, Haag filed post-sentence motions challenging his
sentence and his appellate brief contains the requisite Rule 2119(f) concise
statement, and, as such, is in technical compliance with the requirements to
challenge the discretionary aspects of his sentence. Haag argues in his Rule
2119(f) statement that the trial court, in imposing sentence, “focused
primarily on the defendant’s use of marijuana and the weapons offense
charged but to which he did not plead.” Appellant’s Brief at 7. Even
assuming that this claim raises a substantial question, Haag is due no relief.
Our standard when reviewing sentencing matters is as follows.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted).
A sentencing court may consider uncharged criminal conduct of the
defendant. See Commonwealth v. Shugars, 895 A.2d 1270, 1278 (Pa.
Super. 2006). Thus, to the extent, if any, that the trial court relied upon
Haag’s possession of a firearm in imposing sentence, such reliance was
permissible. Furthermore, the sentencing court is presumed to have
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considered all relevant aspects of a defendant’s character when a pre-
sentence report is available, as was the case here. See Commonwealth v.
Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988)). Finally, our review of the sentencing
transcript reveals that the sentencing court was primarily concerned with
Haag’s admission that he did not want to quit his marijuana use. See N.T.,
Sentencing, 4/8/14, at 8. We cannot conclude that the sentencing court’s
consideration of this circumstance, which reveals a low probability for
rehabilitative success and Haag’s lack of remorse for committing the crime,
constitutes an abuse of discretion. Therefore, no relief is due on this issue.
In his second and final issue, Haag contends that the sentencing court
violated his rights by failing to hold a hearing on his claim of cruel and
unusual punishment. We note that, despite the presence of this claim in
Haag’s statement of issues on appeal, the sentencing court has not
addressed this issue. We are therefore without the benefit of the reasoning
supporting this decision.
However, we need not remand for the preparation of an opinion by the
sentencing court, as a review of Haag’s motion for reconsideration of his
sentence merely alleged generally that the county prison was incapable of
administering necessary treatments. The motion did not specifically identify
any treatments that are (a) necessary for Haag’s health, and (b) unavailable
in the county prison. We therefore conclude that the motion did not set
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forth a colorable claim that Haag’s right against cruel and unusual
punishment was at issue. See Commonwealth v. Carr, 543 A.2d 1232,
1235 (Pa. Super. 1988) (claim that prison’s mental health treatments were
inadequate did not raise a claim that defendant’s right against cruel and
unusual punishment had been violated). Thus, no hearing was necessary,
and Haag is due no relief on this issue.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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