J-S11036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
CHRISTOPHER MILLER,                       :
                                          :
                   Appellant              :          No. 1190 MDA 2014

        Appeal from the Judgment of Sentence entered on May 13, 2014
            in the Court of Common Pleas of Lackawanna County,
                 Criminal Division, No. CP-35-CR-0001412-2013

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED FEBRUARY 19, 2015

        Christopher Miller (“Miller”) appeals from the judgment of sentence

imposed after he was convicted of simple assault.1 We affirm.

        On April 23, 2013, while Miller was incarcerated in the Lackawanna

County Prison for a parole violation, he attempted to commit suicide in his

cell. When correctional officers intervened and attempted to place Miller in

handcuffs, Miller punched one of them in the head and neck area.        The

Commonwealth subsequently charged Miller with simple assault and other

related charges.

        In February 2014, Miller entered a plea of guilty to simple assault,

and, in exchange, the Commonwealth agreed to nolle pros the remaining

charges.    On May 13, 2014, the trial court imposed an aggravated-range



1
    See 18 Pa.C.S.A. § 2701(a)(2).
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sentence of one to two years in prison.      In response, Miller timely filed a

Motion for reconsideration of sentence, arguing that the sentencing court

erred in failing to consider his rehabilitative needs, i.e., his purported need

for treatment of his mental health issues, in imposing sentence. According

to Miller, the sentencing court should have imposed a sentence of house

arrest, since such sentence would allow him to receive adequate treatment

concerning his mental health issues. The trial court denied Miller’s Motion,

after which Miller timely filed a Notice of Appeal.2

      On appeal, Miller presents the following issues for our review:

       I.   Whether the trial court abused its discretion and imposed
            a manifestly unreasonable sentence by sentencing [Miller]
            in the aggravated range of the Sentencing Guidelines
            without giving proper consideration to [Miller’s] needs for
            rehabilitation[?]

      II.   Whether the trial court committed legal error in denying
            [Miller] credit for the three [] months and ten [] days of
            imprisonment that he served between his guilty plea on
            February 3, 2014[,] and the imposition of his sentence on
            May 13, 2014[?]

Brief for Appellant at 4.

      First, Miller argues that the sentencing court abused its discretion by

imposing       an   aggravated-range     sentence      without   considering   his

rehabilitative needs, specifically, his need for mental health treatment. See

id. at 7-12.



2
 The trial court did not file a Pa.R.A.P. 1925(a) Opinion in this case, which
has hampered our review of Miller’s issues.


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     Miller’s claim raises a challenge to the discretionary aspects of his

sentence, from which there is no             absolute right to appeal.           See

Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013).                     Rather,

where, as here, the appellant has preserved the discretionary sentencing

claim for appellate review by raising it at sentencing or in a timely post-

sentence motion, the appellant must (1) include in his brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and

(2) show that there is a substantial question that the sentence imposed is

not appropriate under the Sentencing Code. Hill, 66 A.3d at 363-64.

     Here,    Miller   included   a   Rule   2119(f)   Statement   in   his    brief.

Accordingly, we must determine whether the Rule 2119(f) Statement

presents a substantial question for our review.          Miller argues that the

sentencing court abused its discretion by (1) imposing a sentence in the

aggravated range3 without stating adequate reasons on the record; and (2)

failing to consider his rehabilitative needs. See Brief for Appellant at 7-8.

Miller’s claims present a substantial question.        See Commonwealth v.

Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (noting that a claim that the

sentencing court failed to state adequate reasons on the record for imposing

an aggravated-range sentence raises a substantial question); see also


3
  The standard range sentence for Miller’s conviction of simple assault was 6-
12 months in prison. The sentence imposed of 12-24 months did not exceed
the statutory maximum sentence for this offense.


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Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)

(holding that a claim that the sentencing court failed to consider a

defendant’s rehabilitative needs raises a substantial question).

      Our standard of review is well settled:

        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.              In this
        context, an abuse of discretion is not shown merely by an
        error in judgment. 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.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)

(citation omitted).

      The Sentencing Code provides that, when imposing sentence,

      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 [as well as] any
      guidelines for sentencing[.]

42 Pa.C.S.A. § 9721(b) (emphasis added). Additionally, subsection 9721(b)

provides that, in every case where a sentencing court imposes a sentence

outside of the sentencing guidelines, the court must, in open court, provide

a contemporaneous statement of reasons in support of its sentence.            Id.

When evaluating a challenge to the discretionary aspects of a sentence, it is

important to remember that the sentencing guidelines are purely advisory in

nature. Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007); see


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also Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007) (stating that

“rather than cabin the exercise of a sentencing court’s discretion, the

[sentencing] guidelines merely inform the sentencing decision.”).

      Miller   claims   that    the     sentencing    court   failed   to    consider   his

rehabilitative needs under subsection 9721(b), and did not adequately state

its reasons for the aggravated-range sentence on the record.4 See Brief for

Appellant at 9-11.

      Importantly, the sentencing court had the benefit of a pre-sentence

investigation report (“PSI”). It is well settled that where a sentencing court

is informed by a PSI, “it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has   been     so   informed,     its    discretion    should    not    be     disturbed.”

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).                            In

discussing Devers, this Court in Ventura explained as follows:

            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 [PSI], it will be presumed that he or she was aware
      of the relevant information regarding 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. The sentencing judge can satisfy
      the requirement that reasons for imposing sentence be placed

4
  In sentencing Miller, the court emphasized that Miller had a significant
criminal history and probation/parole violations. See N.T., 5/13/14, at 3.


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         on the record by indicating that he or she has been informed by
         the [PSI]; thus properly considering and weighing all relevant
         factors.

Ventura, 975 A.2d at 1135 (citation omitted).

         Because the sentencing court in the instant case had reviewed Miller’s

PSI, it is presumed that the court considered his rehabilitative needs,

including his alleged need for psychological treatment, as well as any

mitigating value that Miller’s psychological state may have presented. 5 See

id.; see also Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super.

2006) (rejecting the appellant’s claim that the sentencing court had abused

its discretion by imposing sentence without stating adequate reasons on the

record, and holding that “[s]ince the sentencing court had and considered a

[PSI],     this   fact   alone   was   adequate   to   support   the   sentence[.]”).

Accordingly, we discern no abuse of discretion by the sentencing court in

imposing an aggravated-range sentence in this case.

         Next, Miller argues that the sentencing court erred by failing to credit

him for time served on his instant conviction between the date of his guilty

plea and the imposition of sentence.          See Brief for Appellant at 12-13.

5
  At the sentencing hearing, although the judge did not specifically state that
he had considered Miller’s alleged mental health issues in imposing
sentence, Miller’s defense counsel brought these issues to the court’s
attention, and argued that Miller would not have committed the assault had
he been of sound mind. See N.T., 5/13/14, at 2, 3. The sentencing court
was also aware of the fact that Miller was attempting to commit suicide prior
to assaulting the correctional officer. See id. at 2 (wherein defense counsel
informed that court that at the time of the incident, “[Miller] had a mild
psychotic episode where he was in a suicidal state”); see also N.T. (guilty
plea hearing), 2/3/14, at 3.


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Specifically, Miller contends that the court should have credited him with the

three months and ten days that he had served, prior to sentencing, in the

Lackawanna County Prison, where he “was already incarcerated for a

violation of parole when the incident occurred that gave rise to the case at

hand.” Id. at 13; see also id. (arguing that this period of time should be

counted toward the sentence imposed on his simple assault conviction

because he served this time for “a combination of the parole violation and

the simple assault charge.”).

      In McCray v. Department of Corrections, 872 A.2d 1127 (Pa.

2005), the Pennsylvania Supreme Court held that if a sentencing court fails

to properly apply credit for time served, then the remedy is to object before

the sentencing court and preserve the issue for appeal to this Court. Id. at

1132. In the instant case, Miller did not object at sentencing or in his Motion

for reconsideration of sentence that the court failed to give him credit for

time served.

      Moreover, the certified record before us is minimal, and does not

contain adequate information concerning Miller’s relevant history of prior

sentences, parole violations, credit for time served previously given by the

Pennsylvania Board of Probation and Parole, etc.      “Our law is unequivocal

that the responsibility rests upon the appellant to ensure that the record

certified on appeal is complete in the sense that it contains all of the

materials   necessary for   the   reviewing   court   to   perform   its   duty.”



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Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en

banc); see also Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super.

2008) (stating that “during our review of a case, we rely only on facts and

documents in the certified record.”). For the foregoing reasons, and because

the record before us does not support Miller’s claim, we cannot grant Miller

relief on his second issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2015




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