COMMONWEALTH of Pennsylvania, Appellee, v. Inmom GOGGINS, Appellant.
No. 135 Philadelphia 1997
Superior Court of Pennsylvania.
Argued June 14, 1999. Filed March 8, 2000. As Revised March 9, 2000.
747 A.2d 910
¶ 8 Because Beltran could not assert any parental interests in the first instance, he has not met
¶ 9 I therefore would reverse.
JOHNSON, J.:
¶ 1 On this appeal, we determine the quantum of factual and procedural detail an appellant seeking to invoke this Court‘s jurisdiction to review the discretionary aspects of a criminal sentence need include in his or her concise statement of the reasons relied upon for allowance of appeal (hereinafter
¶ 2 Appellant Inmom Goggins appeals from the judgment of sentence entered November 6, 1996, in the Court of Common Pleas of Philadelphia County. On May 10, 1995, a Philadelphia police officer observed Goggins defacing a home with a black marker. Goggins attempted to flee and allegedly dropped a plastic bag containing sixty-eight smaller bags of crack cocaine and one small bag of marijuana. Following his arrest, Goggins was convicted of possession of cocaine with intent to deliver in violation of
Karl L. Morgan, Philadelphia, for appellant.
Michael M. Levy, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.
¶ 3 Goggins filed a direct appeal to this Court, challenging discretionary aspects of the sentencing process employed by the trial court. Commonwealth v. Goggins, 135 Philadelphia 1997 (filed 7/2/98). On that appeal, Goggins included in his brief a concise statement of the reasons relied upon for appeal pursuant to
The lower court sentenced appellant to a state sentence following a short sentencing hearing immediately after a jury‘s verdict wherein the court did not have the benefit of a presentence report and the extent of its information regarding appellant consisted of a few brief questions. Sentencing in the absence of sufficient and accurate information constitutes abuse of discretion. Commonwealth v. Martin, 466 Pa. 118, 129, 351 A.2d 650, 656 (1976).
Additionally, in sentencing appellant beyond the aggravated range of the guidelines, the lower court failed to state specific aggravating factors that might prompt such an upward departure from the standard range sentences determined by the legislature. Also, the court‘s reasons justifying the upward departure were inherently improper, because they replicate factors already taken into account by the guidelines themselves and were inadequate on their face to justify such an extreme deviation.
These issues, independently and collectively, present a substantial question for which this Court must exercise its discretionary review. See
42 Pa.C.S.A. § 9781(b) ;Pa.R.App.P. 2119(f) .
Brief for Appellant, 135 Philadelphia 1997, at 8.
¶ 4 The Commonwealth argued that Goggins‘s
¶ 5 A divided panel of this Court agreed with the Commonwealth that Goggins‘s
¶ 6 In his Substituted Brief for Appellant for En Banc Reargument, Goggins raises the following issues:
- Is not a hypertechnical interpretation of
Pa.R.App.P. 2119(f) that is unnecessarily unfair and unjust, violative of the underlying spirit of the rules of appellate procedure, when it would divest appellant of his right to appeal? - Did not the trial court err as a matter of law and abuse its discretion in imposing a sentence of state incarceration where the court failed to comply with its duty to consider the requisite statutory factors and thoroughly examine appellant‘s background and character or state sufficient reasons for dispensing with preparation of a presentence report prior to imposing sentence?
- Did not the lower court err at sentencing in relying on factors already taken into account in the prior record score and the offense gravity score, and fail to give adequate reasons to justify imposing a sentence that was above the aggravated range?
Substituted Brief for Appellant at 3.
¶ 7 Initially, we note that in his substituted brief, Goggins amended his
¶ 8 Our Supreme Court has emphasized that we must determine whether an appellant‘s
If [the determination that a substantial question exists] is not made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence, the [appealing party] has in effect obtained an appeal as of right from the discretionary aspects of a sentence. It is elementary that such an enlargement of the appeal rights of a party cannot be accomplished by rule of court.
Tuladziecki, 513 Pa. at 513, 522 A.2d at 19. Because a party‘s right to appeal the discretionary aspects of a criminal sentence is limited by legislative enactment in the Sentencing Code, we must not allow the presentation of issues on appeal, the content of which exceeds the scope of the relevant provision of the Code. The applicable provision of the Sentencing Code reads as follows:
§ 9781. Appellate review of sentence
* * * *
(b) Right to appeal.—The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.
¶ 9
[S]eparate presentation of these issues is more than mere formalism; important concerns of substance guide this decision. In addition to preserving the respective rights of both parties according to the jurisdictional scheme provided by the legislature, it furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court‘s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.
Tuladziecki, 513 Pa. at 513, 522 A.2d at 19.
¶ 10 Historically, this Court has reviewed “discretionary aspects of a sentence” where the
The procedural rule,
¶ 12 We read Saranchak to require a party appealing from the discretionary aspects of sentence to articulate the manner in which the sentence violates either a particular provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We emphasize that an appellant is required only to make a plausible argument that the sentence is contrary to a specific provision of the Sentencing Code or to the fundamental norms underlying the sentencing process. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.
¶ 13 Accordingly, we hold that
¶ 14 Applying our holding to the record before us, we find that Goggins has presented a substantial question in the
¶ 15 In his second issue, Goggins alleges that the trial court erred as a matter of law and abused its discretion when it sentenced him to state incarceration without considering the requisite statutory factors or stating adequate reasons for dispensing with a pre-sentence report. Such a claim raises a substantial question because it avers that the court imposed sentence without considering sufficient and accurate information about the defendant. See Commonwealth v. Martin, 466 Pa. 118, 132, 351 A.2d 650, 657 (1976).
¶ 16 In this case, the court declined to order a pre-sentence report or a psychological examination, reasoning that Goggins was required to receive a mandatory state sentence; therefore there was no reason to further overburden Philadelphia County‘s prison system with state prisoners while awaiting a pre-sentence report. In addition, the court concluded that it could obtain sufficient additional background information concerning Goggins through a colloquy. We disagree with the trial court‘s decision not to order a PSI report, and we find the reasons stated by the court in support of its decision invalid.
¶ 17 “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.” Commonwealth v. Carter, 336 Pa.Super. 275, 485 A.2d 802, 804 (1984). 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. See Martin, 466 Pa. at 134 n. 26, 351 A.2d at 658 n. 26. While the extent of the pre-sentence inquiry may vary depending on the circumstances of the case, “[a] more extensive and careful investigation is clearly called for in felony convictions, particularly where long terms of confinement are contemplated.” Id. 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, or the defendant is under twenty-one or a first-time adult offender. See id. at 135, 351 A.2d at 659 (recommending amendment of
¶ 18 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. Martin, 466 Pa. at 134, 351 A.2d at 658. The “essential and adequate elements” of a PSI report include all of the following:
- 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;
- a full description of any prior criminal record of the offender;
- a description of the educational background of the offender;
- a description of the employment background of the offender, including any military record and including his present employment status and capabilities;
- the social history of the offender, including family relationships, marital status, interests and activities, residence history, and religious affiliations;
the offender‘s medical history and, if desirable, a psychological or psychiatric report; - information about environments to which the offender might return or to which he could be sent should probation be granted;
- supplementary reports from clinics, institutions and other social agencies with which the offender has been involved;
- 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 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;
- a summary of the most significant aspects of the report, including specific recommendations as to the sentence if the sentencing court has so requested.
Id. n. 26 (quoting ABA PROJECT ON MINIMUM STANDARDS OF JUSTICE, STANDARDS RELATING TO PROBATION § 2.3 (Approved Draft, 1970)).
¶ 19 Though neither Martin, nor any subsequent case 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. See id. at 134, 351 A.2d at 658 (“Normally such reports should be used, although they are sometimes unnecessary because other sources of information are available.“). 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. See Commonwealth ex rel. Hendrickson v. Myers, 393 Pa. 224, 231, 144 A.2d 367, 371 (1958) (“To deprive the Courts of the right to be informed of and to consider the history and background of the person subject to sentence may result in sentences which are unjust and unfair to both society and defendants.“).
¶ 20 In this case, the trial court dismissed the need for a PSI report ostensibly because it was aware of the evidence adduced at trial and had divined certain information through an oral colloquy. On the facts of record, we find both considerations, even when considered together, insufficient basis for the trial court‘s failure to order a PSI report. The expansive and probing character of the “essential elements” of an adequate PSI report demonstrates, beyond peradventure, that a proper pre-sentence investigation requires a searching inquiry into circumstances well beyond the scope of the record compiled at trial or the court‘s colloquy with Goggins. The trial court‘s inquiry largely ignored these circumstances. The court‘s colloquy presented only seven questions, as follows:
THE COURT: It occurs to me that it is likely Mr. Goggins is going to go to state prison, and we are overcrowded here in Philadelphia and there is no reason for us to be housing state prisoners here if we don‘t have to.
I‘ll ask some questions and if I have enough information, I may be able to dispense with psychiatric and presentencing report. You can always ask for reconsideration, and if necessary we can order one then. I‘ll ask some questions now for purposes of sentencing.
He is how old?
THE DEFENDANT: Twenty.
THE COURT: How far did you go in school?
THE DEFENDANT: Eleventh grade.
THE COURT: You live with your mother?
THE DEFENDANT: Yes, I do.
THE COURT: Have any drug or alcohol use?
THE DEFENDANT: No.
THE COURT: Are you employed?
THE DEFENDANT: [No.]
* * * *
THE COURT: Does Defendant have any prior convictions?
DEFENSE COUNSEL: Juvenile convictions, Your Honor.
N.T. Sentencing, at 212-13.
¶ 21 In light of our Supreme Court‘s clear direction concerning the detailed inquiry necessary for an adequate pre-sentence investigation, the summary nature of the trial court‘s inquiry here renders its decision not to order a PSI report a clear abuse of discretion. By comparison to the extensive inquiry prefatory to a PSI report, the trial court‘s colloquy is a meager and inadequate substitute. The court asked only the most obvious and superficial of questions, the anticipated answers to which might have been given by virtually any defendant. The court‘s inquiry failed to explore Goggins‘s social and family history beyond his living arrangement with his mother, and ignored entirely his potential for vocational training. Given the evidence of record that Goggins was apprehended while making use of his time to scrawl graffiti on the wall of a house, we find the latter inquiry imperative to any serious attempt to avoid recidivism. Moreover, notwithstanding Goggins‘s clear admission of prior involvement with the juvenile system, the court failed to reckon the treatment he had received or his response to treatment. In view of the potential length of Goggins‘s sentence, we find such cursory consideration disconcerting. Thus, notwithstanding the trial court‘s familiarity with the circumstances surrounding Goggins‘s offense, we find its decision not to order a PSI report a source of reversible error in sentencing.
¶ 22 Similarly, we find the court‘s statement of reasons for refusing to order a PSI report fatally deficient. See
(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:
- where incarceration for one year or more is a possible disposition under the applicable sentencing statutes;
- where the defendant is less than twenty-one years old at the time of conviction or entry of a plea of guilty; or
- where a defendant is a first offender in that he or she has not heretofore been sentenced as an adult.
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. The responsibility is no less urgent where the defendant comes before the court as a probation violator. A sentencing court is not excused from this responsibility merely because the court desires to relieve the probation department from an additional assignment.
¶ 24 Nor is the court‘s error alleviated by its recognition that Goggins was subject to a mandatory sentence. In point of fact, the sentence the court imposed substantially exceeded the mandatory sentence. Goggins was convicted under
[W]hen the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity[.]
¶ 25 In his final issue, Goggins asserts that the trial court erred in imposing a sentence outside the guidelines without providing adequate reasons, and relied on factors already taken into account in determining his prior record score and offense gravity score. Such an averment raises a substantial question. See Commonwealth v. Impellizzeri, 443 Pa.Super. 296, 661 A.2d 422, 433 (1995); Commonwealth v. Dotter, 403 Pa.Super. 507, 589 A.2d 726, 730 (1991). According to Goggins, the primary reasons the court imposed sentence of five to ten years’ incarceration were because of the amount of drugs he possessed and because he had two prior convictions.
¶ 26 We agree with Goggins that when fashioning a sentence, a sentencing court may not “double count” factors already taken into account in the sentencing guidelines.
¶ 27 Finally, Goggins alleges that the trial court double-counted his prior record, which was already included in the mandatory minimum sentence. The court sentenced above the mandatory minimum three-year sentence because Goggins had a prior record for possessing drugs with intent to deliver. The court was thus concerned with Goggins‘s continuing pattern of engaging in the same criminal activity despite two earlier convictions, thereby indicating lack of amenability to rehabilitation. While such consideration is compelled by
¶ 28 Judgment of sentence REVERSED. Case REMANDED for re-sentencing in accordance with this Opinion. Jurisdiction RELINQUISHED.
¶ 29 STEVENS, J., files a Dissenting Opinion.
¶ 30 Judge SCHILLER‘s commission on this Court expired prior to the preparation and consideration of Judge STEVENS’ dissent.
STEVENS, J., dissenting:
¶ 1 I respectfully dissent. I agree with the Majority that the trial court abused its discretion in dispensing with a pre-sentence report on the basis that Philadelphia county‘s prison system would be “overburdened” with state prisoners while awaiting a pre-sentence report.
¶ 2 However, I would find that in this case, a review of the record indicates that there was sufficient additional background information obtained by the trial court with its colloquy with the defendant. On that basis, I would find that the trial court‘s decision not to order a P.S.I. report was discretionary with the trial court, and there was no abuse of discretion.
¶ 3 Therefore, I would affirm the decision of the trial court to not order a P.S.I. under the facts of the within case.