Commonwealth v. Finnecy

135 A.3d 1028, 2016 Pa. Super. 41, 2016 Pa. Super. LEXIS 108, 2016 WL 685154
CourtSuperior Court of Pennsylvania
DecidedFebruary 18, 2016
Docket1871 WDA 2014
StatusPublished
Cited by101 cases

This text of 135 A.3d 1028 (Commonwealth v. Finnecy) 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.

Bluebook
Commonwealth v. Finnecy, 135 A.3d 1028, 2016 Pa. Super. 41, 2016 Pa. Super. LEXIS 108, 2016 WL 685154 (Pa. Ct. App. 2016).

Opinions

OPINION BY

BOWES, J.:

. Appellant James Finnecy appeals from the aggregate judgment of sentence of twelve and one-half to twenty-five years incarceration. After careful review, we affirm.

The instant appeal is the latest of Appellant’s multiple appearances before the trial court relating to his underlying offenses. Appellant was initially sentenced on January 22, 2010, to.a maximum of two years incarceration for counts of unauthorized use of a motor vehicle and theft by unlaw[1030]*1030ful taking, as well as two consecutive terms of 18 months probation for escape, resisting arrest, forgery, and identity theft. Upon concluding his term of incarceration on October 26, 2011, Appellant was placed on Venango County Probation. He was assigned to an officer on October 30, 2011, with a maximum date of supervision of October 26, 2014. The next several months saw multiple probation violations and failed attempts at treatment for Appellant’s recurring drug use, all supervised by the trial court. In response to his penultimate violation, the trial court revoked Appellant’s probation and sentenced him to twelve to twenty-four months incarceration in the Venango County Jail. His subsequent conduct was summarized by the trial court as follows.

On April 10, 2014, [Appellant] was released from Venango County Prison and paroled to the Oxford House located at 1417 Chestnut Street, Franklin, PA. Thereafter, [Appellant] began his drug and alcohol treatment with Venango County Substance Abuse program. [Appellant] also held employment for a short period of time at Venango County Steel. On May 30, 2014, a Special Field Report was prepared for Venango County Court requesting a bench warrant to declare [Appellant] an absconder. On June 4, 2014, a bench warrant was issued by Venango County Court. Constable Craig Westover and the Oil City Police Department arrested [Appellant] on July 6, 2014.
On July 18, 2014, the Commonwealth filed a petition to revoke [Appellant’s] probation/parole. On August 28, 2014, [Appellant] appeared at a hearing to determine whether his probation should be revoked. [Appellant] was represented by counsel, Jeffrey Misko, Esq. With the advice of counsel in open court, [Appellant] waived Gagnon I and proceeded to Gagnon II. At Gagnon II, [Appellant] admitted that while on parole and probation status[,] he changed his residence, failed to report, violated curfew, used crack cocaine, associated with drug, users or dealers, and consumed alcohol. As these were material violations of the conditions of parole and probation, parole and probation were revoked. [Appellant] appeared for resentencing on October 7, 2014, and was sentenced to 12/é years to 25 years in a state institution of the Department of Corrections. [The trial court] determined at sentencing that [Appellant] was not RRRI eligible.

Trial court opinion, 11/18/14, at unnumbered pages 4-5 (emphasis added).

Appellant filed a 1925(b) concise statement of errors complained of on appeal, and the trial court declined to author a 1925(a) opinion, opting instead to rely upon its November 18, 2014 Opinion in which it denied Appellant’s post-sentence motion. The matter is now ready for our review.1

Appellant levels three issues for our consideration:

1. Whether the trial court erred as a matter of law or abused its discretion in failing to order a pre-sen-tence investigation report (PSI) as required by Pennsylvania Rule of Criminal Procedure 702(A)(2)(A) as [Appellant] was facing a sentence of one year or more?
[1031]*10312. Whether the trial court erred as a matter of law or abused its discretion in determining that [Appellant] is not eligible for the Recidivism Risk Reduction Incentive (RRRI) program and, therefore, denying his eligibility for said program?
3. Whether the trial court allowed bias, prejudice or ill will in crafting an emotionally motivated sentence that was manifestly unreasonable in relation to the previous sentences related to [Appellant] in these cases and whether the sentence imposed by . this Honorable Court is contrary to the fundamental norms underlying the sentencing process?

Appellant’s brief at unnumbered page 1. .

Appellant’s first and third issues challenge the discretionary aspects of his sentence. He must therefore petition for permission to appeal those issues, as “the right to pursue such .a claim is not absolute.” Commonwealth v, Rhoades, 8 A.3d 912 (Pa.Super.2010). Additionally,

When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the appropriateness of the sentence. Two requirements must. be met before we will review this challenge on its merits. 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.. Second, the appellant must show that there is a substantial question that the sentence, imposed is not appropriate under the Sentencing Code.

Id.

Appellant provided as- part of his brief a proper Pa.R.A.P. 2119(f) concise statement for reasons relied upon- for allowance of appeal, and each issue addressed in his brief is sufficiently stated and explained. We therefore individually examine each to determine if it presents a substantial question that warrants our review. If an issue presents a substantial question, then our “scope of review in an appeal following a sentence imposed after probation revocation is limited to the validity of the revocation proceedings and the legality of the judgment of sentence.” Commonwealth v. Ferguson, 893 A.2d 735 (Pa.Super.2006). We further note that “[t]he 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.” Commonwealth v, Simmons, 56 A.3d 1280, 1283-84 (Pa.Super.2012).

At his first issue, Appellant argues that the trial court erred in failing to order a pre-sentence investigation (“PSI”) report prior to his sentencing. That failure deprived the court of “information regarding [Appellant] and many factors that could aid the court in developing ■ a sentence upon the individual needs of [Appellant].” Appellant’s brief at 4. As the trial court neither ordered a PSI report nor explained its decision on the record, Appellant alleges that the trial court violated Pa. R.Crim.P. 702(A)(2)(a) (“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” where “incarceration for one year or more is a possible disposition under the applicable sentencing statutes[.]”). Accordingly, Appellant argues that he is entitled to resentencing because a proper PSI report would have provided essential information that would have allowed the trial court “to view [Appellant’s] case with the most recent information related to [Appellant] possible.” Id. at 5.

[1032]

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Cite This Page — Counsel Stack

Bluebook (online)
135 A.3d 1028, 2016 Pa. Super. 41, 2016 Pa. Super. LEXIS 108, 2016 WL 685154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-finnecy-pasuperct-2016.