J-S11021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMOWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 KEITH ROSARIO                        :
                                      :
                   Appellant          :   No. 798 WDA 2019

     Appeal from the Judgment of Sentence Entered February 21, 2019
 In the Court of Common Pleas of Washington County Criminal Division at
                     No(s): CP-63-CR-0001262-2013

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 KEITH ROSARIO                        :
                                      :
                   Appellant          :   No. 799 WDA 2019

     Appeal from the Judgment of Sentence Entered February 21, 2019
 In the Court of Common Pleas of Washington County Criminal Division at
                     No(s): CP-63-CR-0000223-2015

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 KEITH ROSARIO                        :
                                      :
                   Appellant          :   No. 800 WDA 2019

     Appeal from the Judgment of Sentence Entered February 21, 2019
 In the Court of Common Pleas of Washington County Criminal Division at
                     No(s): CP-63-CR-0001543-2013


BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
J-S11021-20



MEMORANDUM BY MURRAY, J.:                              FILED APRIL 16, 2020

        Keith Rosario (Appellant) appeals from the judgment of sentence

imposed following the revocation of his probation in three cases. Upon review,

we vacate the judgment of sentence and remand for resentencing.

        Appellant’s underlying convictions arose from three separate criminal

informations, accusing Appellant of twice selling illegal drugs to a confidential

informant, and possession of a firearm not to be carried without a license.

See Trial Court Opinion, 9/9/19, at 1-3.         At docket number CP-63-CR-

0001262-2013, Appellant was charged with selling 1.7 grams of crack cocaine

to a confidential informant on June 1, 2011. Id. at 2. At docket number CP-

63-CR-0000223-2015, Appellant was charged with selling 6.7 grams of

marijuana to a confidential informant on March 15, 2011.        Id. at 2-3.   At

docket number CP-63-CR-0001543-2013, Appellant was charged with

possessing a .38 special revolver without a license on May 23, 2013. Id. at

3.

        On May 4, 2015, Appellant entered a global guilty plea at all three

criminal docket numbers, pleading guilty to two counts of delivery of a

controlled substance and one count of firearms not to be carried without a

license.1 The same day, the trial court sentenced Appellant at docket number

CP-63-CR-0001543-2013 to 2½ to 5 years of imprisonment, at docket number

CP-63-CR-0001262-2013 to 5 years of probation consecutive to his term of

____________________________________________


1   35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 6106(a).

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imprisonment at docket number CP-63-CR-0001543-2013, and at docket

number CP-63-CR-0000223-2015 to 1 year of probation, concurrent to his

probation sentence at docket number CP-63-CR-0001262-2013.

        Appellant was subsequently paroled; however, while on parole, he was

charged with “attempted homicide, aggravated assault, kidnapping and

firearms charges[] at [docket] number CP-63-CR-0002611-2017.” Trial Court

Opinion, 9/9/19, at 6 (citation omitted).        As a result, the Commonwealth

alleged that Appellant violated the terms of his parole and probation.2

Appellant appeared before the trial court on May 7, 2018 for a Gagnon II3

hearing. At the conclusion of the hearing, the trial court found Appellant to

be in violation of his supervision and revoked both his parole and probation.

See N.T., 5/7/18, at 15. On February 21, 2019, the trial court resentenced

Appellant to the balance of his 2½ to 5 year term of imprisonment originally

____________________________________________


2 While Appellant was on parole from his incarceration at docket number CP-
63-CR-0001543-2013 when the Commonwealth filed its petition for
revocation, and had not yet begun serving his probationary sentences at the
other two dockets, the “fact that [A]ppellant had not commenced serving
probation when the new offense occurred did not prevent the court from
revoking its prior order placing [A]ppellant on probation.” Commonwealth
v. Ware, 737, A.2d 251, 253 (Pa. Super. 1999) (“If, at any time before the
defendant has completed the maximum period of probation, or before he
has begun service of his probation, he should commit offenses of such
nature as to demonstrate to the court that he is unworthy of probation . . .
the court [can] revoke or change the order of probation.”) (emphasis in
original).

3   See Gagnon v. Scarpelli, 411 U.S. 778 (1973).




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J-S11021-20



imposed at docket number CP-63-CR-0001543-2013, 5 to 10 years of

imprisonment at docket number CP-63-CR-0001262-2013, and 5 years of

probation    at   docket    number      CP-63-CR-0000223-2015,   to   be   served

consecutive to one another.4

        Appellant filed a motion for reconsideration of sentence on March 4,

2019.5 The trial court denied Appellant’s motion on May 1, 2019. Thereafter,

Appellant filed three separate timely notices of appeal.6 Both Appellant and

the trial court have complied with Pennsylvania Rule of Appellate Procedure

1925.

        Appellant presents three issues for review:


____________________________________________


4 In resentencing Appellant for his parole violation, the trial court was limited
to recommitting him “to serve the remainder of the term which [Appellant]
would have been compelled to serve had the parole not been granted[.]” 61
Pa.C.S.A. § 6138(a)(2). However, upon revoking Appellant’s probationary
sentences at the other two dockets, the trial court had at its disposal all
“sentencing alternatives available to the court . . . at the time of initial
sentencing.” 42 Pa.C.S.A. § 9771(b).

5 The corresponding docket entry incorrectly indicates the document was filed
on March 5, 2019, as opposed to March 4, 2019. As Appellant filed his motion
for reconsideration on March 4, 2019, as reflected by its time stamp, the
motion was timely filed, despite the clerk of courts incorrectly making the
“docket entry reflecting the date of receipt” as required by Pa.R.Crim.P.
576(A)(3).

6  Appellant has complied with our Supreme Court’s holding in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) by filing separate
notices of appeal at each docket, “where a single order resolves issues arising
on more than one docket.” Id. at 971.




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       1. The [trial] court failed to adequately state reasons on the record
       on how the imposed sentence would serve the purposes defined
       in 42 Pa.C.S. § 9721(b).

       2. The [trial] court’s sentence was excessive and based upon
       improper factors.

       3. The [trial court], in re-sentencing Appellant, failed to make a
       determination under the Recidivist Risk Reduction Incentive
       statute. 42 Pa.C.S.A. § 9755(b.1)[.]

Appellant’s Brief at 6-7 (reordered for ease of disposition).7

       Appellant’s first two issues challenge the discretionary aspects of his

sentence.    “The right to appellate review of the discretionary aspects of a

sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.

2014).    “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.” Id.

We conduct this four-part test to determine whether:

       (1) the appellant preserved the issue either by raising it at the
       time of sentencing or in a post[-]sentence motion; (2) the
       appellant filed a timely notice of appeal; (3) the appellant set forth
       a concise statement of reasons relied upon for the allowance of
       appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
       a substantial question for our review.



____________________________________________


7  Appellant’s Rule 1925(b) statement raises two additional discretionary
sentencing claims. See Rule 1925(b) Statement, 6/24/19, at 4-5. However,
because Appellant abandoned these claims in his brief, we do not address
them. See Appellant’s Brief at 6-7; see also Commonwealth v. Briggs, 12
A.3d 291, 310 n.19 (Pa. 2011), cert. denied, 132 S.Ct. 267 (2011) (refusing
to address claim appellant raised with trial court but subsequently abandoned
in brief).

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Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Appellant has complied with the first three prongs of this test by raising

his sentencing claims in a timely post-sentence motion, filing timely notices

of appeal, and including in his brief a Rule 2119(f) concise statement. See

Appellant’s Brief at 1-5. Therefore, we examine whether Appellant presents

a substantial question.

      Appellant argues that the trial court “failed to state on the record below

pursuant to 42 Pa.C.S.A. § 9721(b) how the sentence of confinement was

consistent with the protection of the public, gravity of the offense as it relates

to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” Appellant’s Brief at 2. We have held

that such a challenge presents a substantial question for our review.        See

Commonwealth v. Derry, 150 A.3d 987, 994-95 (Pa. Super. 2016) (claim

that a VOP sentencing court failed to consider the factors under 42 Pa.C.S.A.

§ 9721(b) raises a substantial question). Appellant also argues that the trial

court’s sentence was excessive, and claims that the court relied upon an

improper factor. Appellant’s Brief at 7. This also raises a substantial question.


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J-S11021-20


See Commonwealth v. Downing, 990 A.2d 788, 2010 (Pa. Super. 2010)

(claim that trial court relied on improper factors raises a substantial question).

      Turning to the merits, we recognize:

      In selecting from the alternatives set forth in subsection (a), the
      court shall follow the general principle that the sentence imposed
      should call for confinement that is consistent with the protection
      of the public, the gravity of the offense as it relates to the impact
      on the life of the victim and on the community, and the
      rehabilitative needs of the defendant. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

42 Pa.C.S.A. § 9721(b).

      “Revocation of a probation sentence is a matter committed to the sound

discretion of the trial court and that court’s decision will not be disturbed on

appeal in the absence of an error of law or an abuse of discretion.”

Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation

omitted).   Following revocation, a sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence of total confinement,

but the record as a whole must reflect the sentencing court’s consideration of

the facts of the crime and character of the offender.       Commonwealth v.

Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).

      In imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding


                                      -7-
J-S11021-20


      the defendant’s character and weighed those considerations along
      with mitigating statutory factors. Additionally, the sentencing
      court must state its reasons for the sentence on the record. 42
      Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
      requirement that reasons for imposing sentence be placed on the
      record by indicating that he or she has been informed by the pre-
      sentencing report; thus properly considering and weighing all
      relevant factors.

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004)) (citations omitted).

      After thorough review of the record, we are constrained to agree with

Appellant that the trial court failed to comply with Section 9721(b) of the

Sentencing Code.     Prior to imposing Appellant’s sentence, the trial court

stated:

      Taking into account the seriousness of the charges that are before
      this [c]ourt, which were firearms, and at No. 1543-2013 and drugs
      at the other two numbers, and these were transactions of drugs,
      furthermore, as the [c]ourt recalls from the affidavit and the trial
      of your co-defendant Mr. Escribano, the 911 call that resulted in
      these charges being filed, these firearm charges being filed were
      that shots were being fired, the fact that [Appellant] was only
      paroled for four months, is there any question about that, before
      the new charges were brought? . . . And for the aggravating nature
      of the new charges and incorporating the reasons set forth on the
      record during the original plea, the [c]ourt does find that it’s
      appropriate to depart from the guidelines.

N.T., 2/21/19, at 13-14.

      While the trial court notes the seriousness of Appellant’s underlying

convictions and the aggravating nature of the charges he acquired while on

parole, instead of giving consideration to the sentencing factors set forth in

Section 9721(b) and placing additional reasons for Appellant’s sentence on

the record, the court incorporates the reasons set forth on the record at

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Appellant’s original sentencing hearing held on May 4, 2015. N.T., 2/21/19,

at 13-14.

        Importantly, and contrary to its statement at Appellant’s resentencing,

our review reveals that at Appellant’s original sentencing hearing, the trial

court failed to explain the sentence, cite any legitimate sentencing factor, or

provide a reason for its imposition of Appellant’s original sentence. See N.T.,

5/4/2015, at 1-11. Immediately after accepting Appellant’s guilty plea, the

trial   court    announced   the   sentence   in   open   court   without   any

acknowledgement of the factors set forth in Section 9721(b), or any other

legitimate sentencing factor. Id. at 7-8.

        Upon review of the entire record, we cannot say the trial court gave

adequate consideration to the sentencing factors delineated in Section

9721(b).        The only statements made by the court during Appellant’s

resentencing which could arguably be regarded as an explanation for

Appellant’s sentence, were references to the seriousness of both Appellant’s

underlying convictions, and the crimes that formed the basis for his

revocation. The court failed to consider or discuss how Appellant’s age, family

history, and rehabilitative needs contributed to the sentence. The trial court

also failed to address how the sentence is designed for the protection of the

public, and did not place on the record its understanding or acknowledgment

of the applicable sentencing guidelines for resentencing. Accordingly, we are

constrained to conclude that the trial court failed to impose an individualized

sentence “consistent with the protection of the public, the gravity of the

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J-S11021-20



offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. §

9721(b).

      Appellant further contends the trial court could not have properly

complied with Section 9721(b) because it did not have the benefit of a pre-

sentence investigation report (PSI report) at resentencing, “nor did the court

state on the record why it dispensed with obtaining a [PSI] report.”

Appellant’s Brief at 17.

      Rule 702 of the Pennsylvania Rules of Criminal Procedure provides:

      (A) Pre-sentence Investigation Report

      (1) The sentencing judge may, in the judge’s discretion, order a
      pre-sentence investigation report in any case.

      (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:

                  (a) when incarceration for one year or
                  more is a possible disposition under the
                  applicable sentencing statutes; . . .

Pa.R.Crim.P. Rule 702.

      We have previously stated that the mandate for the PSI springs
      from the imperative of individualized sentencing; each person
      sentenced must receive a sentence fashioned to his or her
      individual needs. To achieve that objective, the trial judge, before
      imposing sentence, even on a probation or parole revocation,
      must actively explore the defendant’s character and his potential
      response to rehabilitation programs.          Indeed, given the
      defendant’s failure to respond to the original sanction of
      probation, the need for scrutiny of his character and underlying
      social influences is arguably enhanced, confirming the need of a

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       current PSI report contoured to reflect the defendant’s most
       recent offenses.

Commonwealth v. Kelly, 33 A.3d 638, 641 (Pa. Super. 2011) (citation

omitted).

       While Rule 702 “vests discretion in the trial court to dispense with a PSI,

it also mandates that under certain circumstances the court must document

its reasons for doing so.” Commonwealth v. Flowers, 950 A.2d 330, 332-

33 (Pa. Super. 2008) (footnote omitted). We have noted the “possibility that

technical noncompliance with the requirements of Rule 702(A)(2) might be

rendered harmless [if the trial court elicits] sufficient information during the

colloquy to substitute for a PSI report, thereby allowing a fully informed

sentencing decision.” Id. at 333 (citation omitted). However, “in the absence

of a PSI, the court must conduct a pre-sentence inquiry such that it is apprised

of the particular circumstances of the offense, not limited to those of record,

as well as defendant’s history and background.” Commonwealth v. Kelly,

33 A.3d 638, 642 (Pa. Super. 2011) (citation omitted).

       Here, the trial court did not order a PSI report in advance of Appellant’s

resentencing.8 Appellant faced a possible sentence of more than one year,

and thus, under Rule 702(A)(2)(a), the court was required to state on the


____________________________________________


8 The Commonwealth confirms the trial court did not order a PSI report to aid
in resentencing Appellant. Commonwealth Brief at 7. Further, our review of
the transcript from Appellant’s original sentencing hearing evidences that no
PSI report was prepared for that hearing, and no explanation was offered for
its absence. See N.T., 5/4/2015, at 1-11.

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J-S11021-20


record its reasons for dispensing with a PSI report.         No explanation was

provided. See N.T., 2/21/19, at 1-17. Therefore, the trial court was required

to conduct a pre-sentence inquiry of the particular circumstances of the

offense, not limited to those of record, as well as defendant’s history and

background. Kelly, 33 A.3d at 642.

      We observe that a properly crafted PSI report must at least address

the following factors:

      (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;

      (H) supplementary reports from clinics, institutions and other
      social agencies with which the offender has been involved;

      (I) information about special resources which might be available
      to assist the offender, such as treatment centers, residential
      facilities, vocational training services, special education facilities,
      rehabilitative programs of various institutions to which the
      offender might be committed, special programs in the probation

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J-S11021-20


      department, and other similar programs which are particularly
      relevant to the offender’s situation;

      (J) a summary of the most significant aspects of the report,
      including specific recommendations as to the sentence if the
      sentencing court has so requested.

Flowers, 950 A.2d at 334 n.2.

      The information heard by the trial court and its questions to Appellant

during resentencing do not “approach the level of thoroughness afforded by a

properly crafted PSI report.” Id. at 333 (citations omitted). At resentencing,

the only inquiry the trial court made as to Appellant’s background or the facts

surrounding his case was when it asked Appellant whether anything “positive”

occurred while he was on parole, whether he completed court-mandated boot

camp, and what type of labor he did while on parole. N.T., 2/21/19, at 7-8.

The court did not hear or attempt to acquire information regarding Appellant’s

prior criminal record, education, employment history, familial relationships,

interests and activities, residence history, or information about resources

available to assist Appellant. The record therefore indicates that “the trial

court sentenced [Appellant] without obtaining even the most basic personal

information necessary to enable it to craft a sentence tailored to [Appellant’s]

individual and rehabilitative needs.” Kelly, 33 A.3d at 642.     Thus, the trial

court’s noncompliance with Rule 702(A) was not harmless in this case, and

supports remand.      See id. (vacating a sentence and remanding for

resentencing where the trial court failed to place on the record its reasons for




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dispensing with a PSI report, and failed to conduct a sufficient pre-sentence

inquiry in the absence of a report).

        Our careful review of the record reveals that the trial court did not

properly consider of the facts of the crime and the character of the Appellant,

Crump, 995 A.2d at 1283, such that the trial court has failed to comply with

the requirements of Section 9721(b) of the Sentencing Code. Further, the

trial court did not have the benefit of a PSI report, the record is devoid of an

explanation as to why a report was not ordered, and the trial court failed to

overcome Rule 702’s requirements of eliciting sufficient information during

resentencing to suffice for the absence of a PSI report.       We are therefore

constrained to conclude that the trial court abused its discretion in

resentencing Appellant.9

        In his final claim, Appellant argues that his sentence is illegal because

the trial court failed to make a determination on the record at resentencing as

to his eligibility for the Recidivism Risk Reduction Incentive (RRRI) program.10

See Appellant’s Brief at 20. In response, the Commonwealth concedes that

the trial court “did not make a determination under the RRRI statute[.]”



____________________________________________


9 As we are remanding for resentencing because the trial court failed to comply
with Section 9721(b) of the Sentencing Code and Pennsylvania Rule of
Criminal Procedure 702, we do not address Appellant’s second discretionary
claim pertaining to whether his sentence was excessive and based upon
improper factors.

10   61 Pa.C.S.A. §§ 4501-4512.

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Commonwealth Brief at 13 (citation omitted).            Because RRRI eligibility

“concerns a matter of statutory interpretation and is, thus, a pure question of

law, our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Chester, 101 A.3d 56, 60 (Pa. 2014) (citation omitted).

      Section 9756(b.1) of the Sentencing Code provides that a trial court

imposing sentence “shall determine if the defendant is eligible for a recidivism

risk reduction incentive minimum sentence under 61 Pa.C.S. Ch. 45.” Id.;

see also 61 Pa.C.S.A. § 4505(a) (“At the time of sentencing, the court shall

make a determination whether the defendant is an eligible defender.”).

Accordingly, this Court has explicitly stated that, “where the trial court fails to

make a statutorily required determination regarding a defendant’s eligibility

for an RRRI minimum sentence as required, the sentence is illegal.”

Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).

      Upon review, we agree that the trial court failed to make a determination

as to Appellant’s RRRI eligibility. See N.T., 2/21/19, at 1-17. Appellant’s

sentence is therefore illegal.   At remand, the court shall make an on-the-

record finding as to Appellant’s RRRI eligibility.

      In sum, the trial court abused its discretion in both resentencing

Appellant and failing to make an RRRI determination. Accordingly, we vacate

Appellant’s judgment of sentence and remand for resentencing.

      Judgment of sentence vacated.            Case remanded for resentencing.

Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/2020




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