Com. v. Schmitt, J.

Superior Court of Pennsylvania

Com. v. Schmitt, J.

DecidedSeptember 17, 2015

Docket759 WDA 2014

StatusUnpublished

This text of Com. v. Schmitt, J. (Com. v. Schmitt, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Com. v. Schmitt, J., (Pa. Ct. App. 2015).

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Opinion

J-S52003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JASON MICHAEL SCHMITT,

Appellant No. 759 WDA 2014

Appeal from the Judgment of Sentence April 9, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002349-2011

BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 17, 2015

Appellant, Jason Michael Schmitt, appeals from the judgment of

sentence entered on April 9, 2014, following the revocation of his probation.

After review, we vacate the judgment of sentence and remand for

resentencing.

The record reveals that on March 31, 2011, Appellant was charged

with burglary, theft by unlawful taking, and conspiracy. On August 30,

2011, Appellant entered a guilty plea at each count. The trial court

sentenced Appellant to a term of eleven and one-half to twenty-three

months of incarceration followed by ten years of probation on the burglary

charge. No additional penalty was imposed for theft by unlawful taking or

conspiracy charges. J-S52003-15

On April 9, 2014, the trial court held a violation of probation hearing,

and following the hearing, the trial court revoked Appellant’s probation and

resentenced Appellant to a term of two to four years of incarceration.

Appellant filed a timely motion for reconsideration that was denied on April

22, 2014. This timely appeal followed. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

On appeal, Appellant raises one issue for this Court’s consideration:

Whether the trial court abused its sentencing discretion in failing to order a pre-sentence investigation [(“PSI”)] report and/or in failing to place reasons on the record for failing to order a [PSI] report?

Appellant’s Brief at 4 (full capitalization omitted).

Appellant’s claim of error is a challenge to the discretionary aspects of

his sentence. Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.

Super. 2013). We note that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Martin, 727 A.2d 1136,

1143 (Pa. Super. 1999). Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

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[W]e 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. [708]; (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, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). The determination of whether there is a substantial question is

made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912-913

(Pa. Super. 2000).

Herein, the first three requirements of the four-part test are met:

Appellant brought a timely appeal, raised the challenges in a post-sentence

motion, and included in his appellate brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

Appellant argues that the trial court erred in imposing a sentence

without ordering a PSI report, or in the alternative, failing to place on the

-3- J-S52003-15

record its reasons for not doing so. Such a claim raises a substantial

question. Carrillo-Diaz, 64 A.3d at 725. Because Appellant’s issue

presents a substantial question, we proceed with our analysis.

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. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.

Super. 2006). In this context, an abuse of discretion is not shown merely by

an error in judgment. Id. 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. Id.

In Carrillo-Diaz, a panel of this Court explained that:

The first responsibility of the sentencing judge is to be sure that he has 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 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:

-4- J-S52003-15

(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;

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