*1 two the Commonwealth’s need not address the trial court’s we find
issues as the matter amendment
commentary on inconsequential and was
was mere dicta analysis. both the As legal
the court’s at no appellee agree,
Commonwealth request
time did the Commonwealth once the criminal information
amend the Thus, until such time
trial commenced. crim- seeks amend a
the Commonwealth such is de-
inal information
nied, no matter before the court there is
for disposition.
¶ affirmed. 20 Order Pennsylvania,
COMMONWEALTH
Appellee KELLY, Appellant.
James Franklin Pennsylvania.
Superior Court Aug.
Submitted 2011.
Filed Dec. *2 Hartye,
Joseph Hollidaysburg, ap- J. pellant. Consiglio,
Richard A. Assistant District Attorney, Hollidaysburg, for Common- wealth, appellee. ALLEN, LAZARUS,
BEFORE: OTT, JJ. LAZARUS,
OPINION BY J.: Franklin Kelly appeals James from his judgment of January sentence entered on 10, 2011, after he was found to be probations. violation of his two After review, careful we vacate and remand for resentencing. 11, 2010, January
On Kelly pled guilty to one count each of theft1 possession 3921(a). 1. 18 Pa.C.S.A. of Reasons Relied was sentenced to Concise Statement He
drug paraphernalia.2 Pa. one-year proba- Appeal. terms of Alowance of Upon for two concurrent 2119(f). tion, and costs. must plus fines R.A.P. This statement *3 question as to whether “raise a substantial 22, 2010, Kelly appeared On December sentence, vio judge, imposing the vio- the court on various before Sentencing specific provision lated a violations, He not contest the lations. did a ‘fundamental norm’ or contravened Code requested presen- the court order sentencing process.” Common The court tencing psychiatric evaluation. 330, Flowers, 331 wealth v. 950 did declined to order the evaluation and (Pa.Super.2008). investigation presentence not order a (“PSI”). The court revoked both of Kel- 2119(f) Here, Kelly included a Rule has and sentenced him to con- ly’s probations statement, in which he claims that his sen- (theft) terms of 12 to 24 months’ secutive light “manifestly tence was excessive (possession) 6 to 12 months’ incarcera- because of the nature of severity its Kelly post-sentence not file mo- tion. did potential violations and his tions. Appel- Brief of problems.” Kelly timely appeal filed a notice of lant, Kelly at 11. also asserts that 12, January 2011. The trial court ordered imposed trial court his sentence “without com- Kelly to file a statement of errors considering requisite statutory factors of on to Pa.R.A.P. plained appeal pursuant adequately state reasons for failed 1925(b), 1, February which he did on 2011. psychiatric with a PSI and a dispensing 1925(a) The trial court filed its Pa.R.A.P. report[.]” Id. 8, February opinion A claim that a sentence is mani appeal, Kelly following On raises the festly excessive such that it constitutes too issue for our consideration: punishment severe a raises substantial THE GAGNON [II] WHETHER Mouzon, v. question. See Commonwealth AN ERROR COURT COMMITTED (2002). 419, 617, 624 571 Pa. 812 A.2d IT SENTENCED KELLY TO WHEN However, Kelly’s argu- brief is devoid of A PERIOD OF OF INCARCERATION and, thus, we find it to ment on this claim (18) EIGHTEEN NOT LESS THAN Clayton, be waived. Commonwealth MONTHS TO NO MORE THAN (“[I]t (2002) 217, 221 572 Pa. 816 A.2d (36) THIRTY-SIX MONTHS AT A principle appellate juris- is a well settled STATE CORRECTIONAL INSTI- prudence undeveloped claims are TUTE? appeal.”). waived and unreviewable on Appellant, Brief of at 7. Kelly’s claim concerns the fail next Kelly’s challenge raises a appeal ure of the trial court to order a PSI and discretionary aspects of his sen psychiatric report. appellant’s alle “[A]n challenge tence. Such a must be consid the trial court sen gation that petition permission appeal. ered a considering requisite Hoch, tence without Commonwealth v. 936 A.2d rea statutory stating adequate factors or Appellate The Rules of that, with a dispensing sons for Procedure mandate to obtain review sentence, question.” discretionary of a substantial aspects [raises] (citation quo- include in his brief a 950 A.2d appellant must 780-113(a)(32). 2. 35 P.S. omitted). Thus, police; abusing
tation we will consider the prescription drugs him). Kelly’s merits of claim. not prescribed Finally, the trial court stated that it “took into consider- claim, support Kelly argues [Kelly’s] ation that mental health needs that, although the trial court has discretion can be adequately addressed through this dispense with a PSI under certain cir sentence” because “if issues cumstances, the court must document its present, are [Kelly] would need to be in doing reasons for so.3 Brief of Appellant, setting confined of the state correction- 702(A)(2)). at 12 (citing Pa.R.Crim.P. Kel period al institution for a eigh- of at least ly sentencing judge asserts must *4 thirty-six teen to months order to bene- either order a PSI or conduct sufficient any fit pre-sentence inquiry so that the court is treatment apprised particular of the would be available to him in circumstances of offense, record, setting.” the not limited to of those Id. at 2. as well as the personal history defendant’s previously We have stated that the man- background. and Id. at 12-13 (citing Com date for the PSI
monwealth v. Goggins,
probation officer and to allow officer to
(5)
(A)
home;
enter
charges
complete
new criminal
a
description of the offense
(6)
theft
receiving
property;
it,
stolen
and the
surrounding
circumstances
failure to appear;
fleeing
eluding
not
aspects developed
limited to
for the
702(A)(2)
Here,
requires
Kelly's underlying
Pa.R.Crim.P.
that the tri-
convictions involved
place
al court
misdemeanor,
the record its reasons for
second-degree
a
punishable by
dispensing with a PSI under certain circum-
up
years’ imprisonment,
a
of
sentence
to two
stances. These circumstances include "when
misdemeanor,
ungraded
punishable
and an
year
possi-
incarceration for one
more is
up
year
prison.
sentence of
to one
disposition
applicable
ble
under the
sentenc-
106(b)(7)
(9).
18 Pa.C.S.A.
&
702(A)(2)(a).
ing statutes.”
record,
offense,
limited to those of
determination of
of the
part
record as
history and back-
well as defendant’s
guilt;
Id. at 728.
ground.”
(B)
any prior crimi-
description of
a full
transcript
Upon review
offender;
nal record of the
we find that
proceedings,
II
Gagnon
(C)
of the educational
description
satisfy
requirement
failed to
trial court
offender;
background
the record its
place
702 that it
of Rule
(D)
employment
description
Fur-
dispensing with a PSI.
reasons for
offender, including
background of the
thermore,
neither ordered a PSI
the court
military
including
his
any
record
inquiry as
conducted a
nor
capabili-
status and
employment
present
supra, in the ab-
Goggins,
under
required
ties;
Gagnon
transcript
II
of a PSI. The
sence
offender,
(E)
history of the
the social
regarding
information
is bereft of
relationships, marital
including family
viola-
Kelly’s probation
circumstances
activities,
status, interests and
residence
tions,
his edu-
prior
criminal
*5
affiliations;
religious
history, and
background, his
employment
cational and
and,
(F)
if
history
medical
the offender’s
medical
history,
familial
or his
social and
desirable,
psychological
psychiatric
a
or
history. Although Kelly’s
psychiatric
report;
Kelly’s
record that
counsel stated on the
(G)
to
information about environments
family
expressed
regarding
concerns
had
or to
might
which the offender
return
psychi-
a
requested
his mental health and
be
should
which he could
sent
evaluation,
declined to ob-
atric
the court
granted;
be
information,
it to
leaving
tain that
instead
Moreover,
system
to sort out.
prison
(H)
clinics,
supplementary reports
Kelly’s probation
testify
officer did
while
agencies
other social
institutions and
issues,
as to his violations and addiction
which the offender has been in-
the record to
placed
those facts were
volved;
Kelly’s
establish
violations
(I)
special resources
information about
an aid to the court in individual-
as
might
be available to assist
Kelly’s
to fit
needs. See
izing its sentence
offender,
centers,
such as treatment
sum, the
Goggins, supra.
In
record shows
facilities,
training
residential
vocational
Kelly with-
that the trial court sentenced
facilities,
services,
educational
special
personal
even the most basic
obtaining
out
of various insti-
programs
rehabilitative
necessary
enable it to craft
information
to
might
tutions to which the offender
be
Kelly’s
individual
a sentence tailored
committed,
in the
special programs
pro-
needs.
and rehabilitative
department, and other similar
bation
vacated; case re-
Judgment of sentence
programs
particularly
which are
rele-
resentencing in accordance
manded for
situation;
to the offender’s
[and]
vant
opinion.
of this
Jurisdic-
with the dictates
(J)
summary
significant
a
of the most
relinquished.
tion
report, including specific
aspects of
to the
if
recommendations as
sentence
ALLEN, J.,
Dissenting Opinion.
files a
requested.
court has so
ALLEN,
BY
DISSENTING OPINION
Goggins,
Appellant claims that was notes the [The court] evaluation. [Appellant’s [Appellant] counsel] determination, I Contrary majority’s to the [undergo a mental health be- evaluation] in the trial find no abuse of discretion sentence, beginning fore but the [tri- deny request. court’s decision to Pa. al declines take that 702(B), court] action pertaining pre-sen- R.Crim.P. feeling that examinations, [Appellant’s] mental health provides: tencing psychiatric adequately needs can be addressed (B) Psychiatric Psychological Ex- Correctional [State Institution] amination. furthermore, this through sentence and finding guilt After a before the if psychiatric believes issues are [that] sentence, imposition of after notice to present, [Appellant] would need to be in parties, counsel for both the sentenc- the confined setting of the Cor- [State may, law, ing judge provided by rection period for a of at Institution] undergo psy- order the defendant to eighteen thirty-six least months in psychological chiatric or examination. order to benefit from *6 purpose may For this the defendant treatment which would be available to clinic, be remanded to available him in that setting. institution, hospital, or state correc- The notes that diagnostic [trial court] tional there have classification previous part been efforts on the of center for a period exceeding 60 County Blair Adult Parole days. and Proba- tion help Office to achieve mental health 702(B) added). (emphasis [Appellant] for which he has thwarted 702(A) 0Compare per- with Pa.R.Crim.P. by absconding failing appear to the taining separate and distinct re- appointments. Specifically, the [trial quirements regarding PSI reports). See in guilty plea colloquy *7 702(A), pertaining report to PSI re- 1. Flowers mandates that a PSI "must” alia, offense, description ports, provides: include inter a of the the offender’s criminal educational (A) Report Investigation Pre-sentence background, history, social the offender’s (1) sentencing judge may, The in the history, the envi medical information about discretion, presentence judge’s order a might ronment to which the offender enter if investigation report any case. granted, probation supplementary reports is (2) sentencing judge place The shall on the with which the offend from social institutions dispensing with record the reasons for involved, er has been and information about investigation report pre-sentence if special resources available to assist the of pre-sentence judge to order a fails Flowers, citing A.2d at fender. 950 333 Com any following report in instances: 721, Goggins, 748 monwealth A.2d 728-729 (a) year when incarceration for one or However, (Pa.Super.2000). pursuant to possible disposition under the more is a report only a PSI need include statutes; sentencing applicable psychological psychiatric report or "if desir (b) the defendant is less than 21 when able.” A evaluation is therefore years at the time of conviction or old only component report, one of a PSI and is guilty; entry plea of or of a pre optional. Appellant in this case did not (c) when a defendant is a first offender PSI serve his claim that he is entitled to a full that he or she has not heretofore been 702(A) report. (per See also Pa.R.Crim.P. as an adult. sentenced taining reports) compare Pa. to PSI with (3) investigation report The 702(B) psychiat (pertaining R.Crim.P. examinations, regarding the include information separate, shall ric/psychological and the report). of the offense optional from the PSI circumstances distinct
645 Thus, Appellant appellate waived his claim may total confinement be if (1) that the trial court should have ordered a following three conditions exist: report. full PSI the defendant has been convicted of anoth (2) crime; er or the conduct of the defen Additionally, Appellant I note that when likely dant indicates that it is that he will originally guilty plea entered his on Janu- commit another if impris crime he is not 11, 2010, ary Appellant did not oned; or such a sentence is essential to report, PSI nor did the trial court deem authority vindicate the of court. 42 Pa. Rather, necessary. report Appel- such a 9771; C.S.A Commonwealth v. Malo agreed immediately lant to be sentenced vich, 1247, 903 A.2d 1253 entry plea after the —without report. Appellant Nor did ever file a di- Appellant’s probation placed officer appeal challenging rect the trial court’s the record a explanation Appel- detailed not to order a PSI report decision lant’s violations subsequent juncture. criminal behavior as follows: preserved
Even if had [Appellant’s] violations are numerous. claim that he was entitled to the benefit of We’ll start with the most recent [which] a full after PSI revocation of his apprehended is when he was on a Bench I disagree majority’s with the Warrant that we had. He admitted that opinion that the trial court abused its dis- he shot Oxycontin 3, October cretion in a report, order such 2010, and snorted heroin on October 4. the trial court did not conduct an that, Prior to appointment missed an adequate pre-sentencing hearing. unsuccessfully and had discharged been requires
“Probation revocation treatment [only] failure to truncated hearing by court with the treatment rules regula- determine whether remains tions. called him to report. He failed rehabilitative and continues to deter report. future He didn’t return the call. conduct, antisocial ... without jury, attempted We a home visit. He and a lower proof, burden of and with fewer Myers, with, Miss that he lives refused process protections” due and at pro open They doors. had surveil- cedural important. rules are less doors, Com lance cameras on both watched us Holder, monwealth v. 569 Pa. out there. The Altoona Depart- Police (2002). Moreover, “upon ment came and entering assisted us in *8 sentencing following residence, a revocation of proba left, [Appellant] and had tion, the trial court only by that, is limited again. absconded Prior to he had maximum sentence that it could have im charges new criminal for Retail Theft. posed originally at the time of the proba He failed appear to for that hearing tionary sentence.” Magistrate Jackson, Commonwealth v. before and he also McAfee, 849 275 report failed to that to our [probation] In the particular context of a sentence office. Magistrate Jackson issued a violation, for a probation arrest, once warrant for his a Bench Warrant. revoked, probation has been a sentence of apprehended He was near the Grand- 702(A). character of the defendant sufficient to Pa.R.Crim.P. judge determining assist the in sentence. pre-sentence investigation report The impact shall also include a victim state- provided by ment as law. to total confinement Appellant when he resentence Cemetery on October view complies and supported by is eluding from Officer and fleeing was requirements of Pa.C.S.A Po- with the Logan Township McKendree A.2d at 1283 pro- Crump, Prior to that Department. lice (where the trial court con- (Pa.Super.2010) opiates, drug screen positive vided a the revocation testimony that he took sidered voluntarily admitted and he appellant’s lack of suc- prescribed hearing regarding not Oxycontin and Darvocet his arrest while un- through, we de- cess under follow to him. We did supervision, appear his failure to him, Gagnon I der had [and he] tained occasions, a half- inpatient flight to numerous his I released him [hearing]. way parole supervision, house while under of a revocation and treatment instead in of a being possession and his found through him ad- tried to work with probation— while on controlled substance diction. appellant likely was to which showed N.T., 12/2/10,at 1-2. record as a commit another crime—the stated that he did Appellant expressly that the trial court consid- whole reflected probation his this account of not contest the facts of the crime and character ered viola- the basis of these violations. Id. On making in its determination Appellant tions, that Appel- trial court concluded relief).3 was not entitled to Appellant crime if likely to commit another lant was report that a PSI is not emphasize so, had in fact done imprisoned not and/or necessary every probation in revocation necessary was to and that incarceration resentencing hearing. impose To such authority. There the trial court’s vindicate unnec- requirement on trial courts would for the trial ample support in the record is the efficient administration essarily burden previous judi- All court’s determination. justice. Flowers and Pa.R.Crim.P. Appellant cial efforts to rehabilitate 702(A)(2) drug vest discretion with the his mental health and issues address PSI, failed, dispense provided a continu- court to with only fact led to its reasons for the trial court documents Appellant’s ation of anti-social behavior. so, required by if the circumstances. systematically comply doing failed to However, notes that “technical re- Flowers with the terms requirements with the noncompliance controlled peatedly ingesting prohibited 702(A)(2) substances, might be rendered harm- being discharged from treat- Rule treatment the trial elicited suffi- failing [where court] ment for less during colloquy cient information regulations, failing report rules and officer, report, thereby allow- refusing to allow his substitute for home, entry fleeing ing fully informed decision.” probation officer to his 333; 950 A.2d at eluding probation police officers and 702(A)(2). need not be vacated attempted to locate A sentence they officers when him, every case in which a PSI is not appear magis- before a *9 cases, careful review of ordered. In such incurring charges. after new criminal trate 12/2/10, 1-2; N.T., required the record is to determine wheth- Opinion, Trial Court 2/8/11, sufficient infor- foregoing, er the trial court “elicited light at 1-2. colloquy to substitute during trial court’s decision to mation conclude that the theft, and 6 to 12 months for Following Appellant’s proba- the crime of 3. revocation of tion, drug paraphernalia. the trial court sentenced possession of imprisonment for term of of 12 to months report, thereby allowing fully informed decision.” circumstances, at 333. In those to the sound discretion of the
we defer only upon will
trial court and reverse abuse,
showing Appel- of manifest instance,
lant, in this has failed to demon-
strate. reasons, I
For these dissent.
J.R.M., Appellant
J.E.A., Appellee.
Superior Pennsylvania. Court of
Argued Sept. 2011. Dec.
Filed
notes
court]
Flowers,
v.
also Commonwealth
950 A.2d
7,
by [Appellant]
January
filled out
on
330, 333
that a
(Pa.Super.2008) (explaining
2010,
regard Question
in
No. 9 was
psychological
psychiatric
or
evaluation is
asked,
you
being
“Are
now
for a
treated
optional
only
and the trial court need
re-
mental
[Appellant’s] response
illness?”
quest
psychological
psychiatric report
“Nope,
appointment.”
was
had an
In
desirable”). Thus, Flowers,
“if
supra and
10,
Question
regard to
No.
“If the an-
702(B) together
Pa.R.A.P.
make clear that
Question
yes,
please
swer
No. 9 is
entirely
it is
within the discretion of the
Answer,
explain
“Nope,
the detail.”
court to
psychi-
trial
determine whether a
my appointment.”
missed
Upon
atric evaluation is warranted.
re-
Order, 12/22/10,
Sentencing
Trial
view of the
I conclude that the trial
Court
2/8/11,
Opinion,
that
in
1-2. See also Trial Court
court did not abuse
discretion
at 2.
present case.
Appellant’s sentencing hearing,
sentencing
At
fol-
“A
court need not undertake
lowing Appellant’s request
psychiat-
lengthy
for a
discourse for its reasons for
evaluation,
ric
the trial court
a sentence or
refer-
imposing
specifically
considered
pre-sentence psychiatric
the record
cisión to decline
question,
in
ence the statute
sentencing
the record and
supported
whole must reflect
evaluation is
as a
facts of the
court’s consideration
constitute an abuse of discretion.
does not
the offender.”
of
crime and character
respect Appellant’s
assertion
With
Crump, 995 A.2d
v.
Commonwealth
trial court erred in
appeal that the
Here,
the trial
(Pa.Super.2010).
claim
report,
to order a full PSI
I find this
reflect its consideration
court’s statements
requested
Appellant
because
never
waived
crime
the character
the facts of the
of
the trial
report,
objected
nor
offender, in
the trial court
report.
to order such a
court’s failure
that
explained
Appellant’s
N.T., 12/22/10,
properly preserve
at 3. “To
in the con-
would be best addressed
needs
sentencing for
discretionary aspects institution,
finement of a correctional
review,
must be raised
the issue
appellate
failure to
light Appellant’s
timely
during sentencing
post-sen
or in a
for treatment while
previous opportunities
Sheller,
tence motion.” Commonwealth
Appellant’s ten-
he was on
Here,
961 A.2d
Accordingly, the
dency to abscond.
hearing
during
sentencing
at no time
expressly
court
mandated
its
post-sentence
Appellant
or in
motions did
receive a mental
order
that
request
report. Appellant’s
a full PSI
sole
during
health evaluation
the course
“psychiat
pre-sentence
was for a
incarceration,
his incar-
specified
Ap
preserve
ric evaluation” which did not
duration
ceration should be of sufficient
claim,
time
pellant’s
raised for the first
from such mental health
for him to benefit
that he was entitled to a full PSI.
appeal,
light
foregoing,
assistance.
(explaining