J-S65033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY GENE HETRICK, JR.                     :
                                               :
                       Appellant               :   No. 831 MDA 2018

              Appeal from the Judgment of Sentence April 5, 2018
    In the Court of Common Pleas of Huntingdon County Criminal Division at
                        No(s): CP-31-CR-0000547-2017


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED: JANUARY 28, 2019

        Gary Gene Hetrick, Jr. appeals from the judgment of sentence entered

following his guilty plea to three counts of resisting arrest and one count each

of criminal trespass (defiant trespasser), disorderly conduct (engages in

fighting), and public drunkenness.1 Hetrick challenges the discretionary

aspects of his sentence and claims the trial court erred in not permitting him

to receive a copy of his pre-sentence investigation report (“PSI”). We affirm.

        On January 16, 2018, Hetrick pled guilty to the above-referenced

offenses. According to the Affidavit of Probable Cause attached to the Criminal

Complaint, Hetrick was at Memories Bar, where he became belligerent and

yelled at the other customers. The establishment’s owner asked him to leave,




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1   18 Pa.C.S.A. §§ 5104, 3503(b)(1)(i), 5503(a)(1), and 5505, respectively.
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and Hetrick refused. When the police officers arrived, they again asked him to

leave. Hetrick failed to leave, fought with the officers, and resisted arrest.

      On April 5, 2018, the trial court sentenced Hetrick. At the sentencing

hearing, the trial court asked whether Hetrick’s counsel had any additions or

corrections to the PSI. Counsel responded: “I do not. In speaking with my

client, he believes that he may have an extra day of time that he had served

over what the [PSI] says, but I feel that 256 days is not inaccurate.” N.T.,

4/5/18, at 2. His counsel argued that the incident was the result of a “bad

day,” because Hetrick was having a “falling out” with his girlfriend. Id. at 3.

Counsel stated, “It was a very bad day. He made some poor choices and

reacted very poorly when the police arrived.” Id. at 4.

      After reviewing the PSI, hearing argument from Hetrick’s counsel and

the Commonwealth, and hearing Hetrick’s allocution, the trial court stated:

         Well, Mr. Hetrick, I don’t think this is out of character for
         you. I think it is totally in character for you. Looking at your
         record, you have had a [driving under the influence (“DUI”)]
         in Centre County, a DUI in Blair County, drug charges in
         Mifflin County, simple assault charges in Huntington County,
         harassment charges in Huntington County. I think this is
         totally in character. And you put the public at risk.

         And as a result, I have considered the protection of the
         public, the gravity of the offenses as it relates to the impact
         on the life of the victims, the law enforcement officers, the
         community, and I have also considered your rehabilitative
         needs. I don’t think the statutory sentencing guidelines are




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          appropriate in this case. I have considered them, and I am
          going to sentence outside the sentencing guidelines.[2]

          You caused a great disturbance to the members of the
          public, but you also put the health and safety of three
          Huntington Borough Police officers at risk, and that’s a great
          concern. You simply could have left when asked by the
          owner of the establishment to leave, and you didn’t do that.
          And you stayed there and you wanted a fight, and you got
          a fight. And from what I’m reading, it looks like not only did
          you lose the fight, but you’re also, as a result, going to state
          prison.

Id. at 6-7. For the three resisting arrest convictions, the court imposed one

term of nine to 24 months’ imprisonment and two terms of four to 24 months’

imprisonment and, for the criminal trespass conviction, the court imposed a

term of three to 12 months’ imprisonment.3 The court ordered the sentences

to run consecutively, for an aggregate sentence of 20 to 84 months’

imprisonment.

       Hetrick filed a post-sentence motion arguing that the sentence was

excessive considering the nature of the offenses and Hetrick’s criminal history

and rehabilitative needs. Hetrick also filed a motion for disclosure of the PSI.

The PSI included a statement stating “the offender has no right to personally

review the report.” Motion for Disclosure of Pre-Sentence Investigation

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2 For the resisting arrest convictions, the sentencing guideline range was
restorative sanctions to four months’ imprisonment, with an aggravated range
of seven months’ imprisonment. For the criminal trespass conviction, the
standard sentencing guideline range was restorative sanctions to three
months’ imprisonment, with an aggravated range of six months’
imprisonment.

3 The court imposed sentences of guilty with no further penalty for the
convictions for disorderly conduct and public drunkness.

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Report, at ¶ 3. Hetrick maintained that he had a right to review the report,

noting there was no evidence the disclosure would be detrimental to Hetrick

or sources of information. Id. at ¶ 6. On May 14, 2018, the trial court denied

both motions. Hetrick filed a timely notice of appeal.

        Hetrick raises the following claims on appeal:

           1. Is Mr. Hetrick’s sentence of total confinement in state
           prison unreasonably excessive, when it exceeds the
           presumptive limit of the Sentencing Guidelines and is based
           on a factor already weighed by the Sentencing Guidelines,
           considering that his conduct caused no injury or harm and
           was situational?

           2. Was Mr. Hetrick entitled to receive a copy of the pre-
           sentence investigation report, given the fact that neither the
           probation department nor the Commonwealth provided any
           grounds for withholding it from him?

Hetrick’s Br. at 6.

   I.      Discretionary Aspects of Sentence

        Hetrick claims the trial court failed to articulate its reasons for

concluding that a sentence of total confinement was necessary and claims the

court considered his prior record score, which had already been considered in

the sentencing guidelines. He further argues the court imposed an excessive

sentence and focused too heavily on his criminal history and failed to consider

mitigating circumstances, including that his “ill-considered conduct was

largely situational.” Hetrick’s Br. at 11.

        A challenge to the discretionary aspects of a sentence is not appealable

as of right. Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa.Super.

2014). Before we exercise jurisdiction to reach the merits of a claim, we must

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determine whether: (1) the appeal is timely; (2) the appellant has preserved

his issue; (3) his brief includes a concise statement of the reasons relied upon

for allowance of an appeal with respect to the discretionary aspects of his

sentence; and (4) the concise statement raises a substantial question whether

the sentence is inappropriate under the Sentencing Code. Id. at 1042-43; see

also Pa.R.A.P. 2119(f) (mandating that an appellant “set forth in a separate

section ... the reasons relied upon for allowance of appeal”). Only if the appeal

satisfies each of these four requirements may we proceed to decide the

substantive merits of the claim. Colon, 102 A.3d at 1043. In so doing, we

review the sentence imposed for an abuse of discretion. Id.

       Hetrick timely filed a notice of appeal and his brief contains a concise

statement of the reasons on which he relies. Hetrick, however, did not raise

in his post-sentence motion his claim that the court considered an

impermissible factor by basing his sentence on a factor already considered in

the sentencing guidelines. Hetrick, therefore, waived this claim.

       Further, even if Hetrick had preserved this claim, we would conclude it

lacked merit. Contrary to Hetrick’s contention, the court did not rely solely on

his criminal history as its reason for sentencing him outside the sentencing

guideline range.4 Rather, it sentenced above the aggravated range because

Hetrick’s conduct put the public at risk and, in doing so, the court considered

____________________________________________


4The court imposed outside the sentencing guidelines for one resisting arrest
conviction. For the remaining convictions, it imposed sentences at the high-
end of the standard range of the guidelines.

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Hetrick’s criminal history, as well as the protection of the public, the gravity

of the offense as it relates to the victims, the community, and Hetrick’s

rehabilitative needs. N.T., 4/5/18, at 6-7; see also Commonwealth v.

Griffin, 804 A.2d 1, 10 (Pa.Super. 2002) (noting “court should refer to the

defendant’s prior criminal record, his age, personal characteristics and his

potential for rehabilitation”); Cf. Commonwealth v. Simpson, 829 A.2d

334, 339 (Pa.Super. 2003) (finding claim that court considered impermissible

factor already weighed in sentencing guidelines as sole reason for imposing

sentence in aggravated range raised substantial question). This was not an

abuse of discretion.

      Hetrick’s post-sentence motion did include his claim that the court

imposed an excessive sentence without considering mitigating factors.

Further, the claim raises a substantial question. Commonwealth v. Raven,

97 A.3d 1244, 1253 (Pa.Super. 2014) (holding “excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question”). We will therefore review Hetrick’s

claim to determine whether the trial court abused its discretion in sentencing

him to 20 to 84 months’ imprisonment.

      Here, the court considered the PSI, the arguments of counsel, Hetrick’s

allocution, and the factors set forth in the Sentencing Code, and the court put

its reasons for the sentence on the record. The trial court did not find credible

Hetrick’s claimed mitigating factor, that is, that he was having a bad day and

the conduct would not occur again. As it did not find it credible, it did not err

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in not using such a factor as a mitigating factor. We conclude the trial court

did not abuse its discretion in sentencing Hetrick to an aggregate sentence of

20 to 84 months’ imprisonment.

   II.      Right to Review PSI

         Hetrick argues the trial court erred in denying his counsel’s request to

share a copy of the PSI with Hetrick. He argues the PSI form states that “the

offender has no right to personally review the report.” Hetrick’s Br. at 12. He

argues the Sentencing Code presumes a defendant will have access to the PSI

and that a defendant’s counsel should be permitted to disclose the PSI unless

specifically ordered not to disclose it. Id. at 13. He also argues that the trial

court’s policy of prohibiting a defendant from having a copy is “senseless,”

because the court “allows both the prosecuting and defense attorneys to

obtain a copy,” and “[d]efense counsel is allowed to discuss the PSI at length

with the defendant, and even to read the PSI to the defendant in its entirety.”

Id. at 16.

         Pennsylvania Rule of Criminal Procedure 703 provides:

            (A) All pre-sentence reports and related psychiatric and
            psychological reports shall be confidential, and not of public
            record. They shall be available to the sentencing judge, and
            to:

                                         ...

            (2) the attorney for the Commonwealth and counsel for the
            defendant, for inspection and copying, unless the
            sentencing judge orders that they be available for inspection
            only.




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Pa.R.Crim.P. 703(A)(2). Further, in Commonwealth v. Phelps, 301 A.2d

678 (Pa. 1973), the Pennsylvania Supreme Court adopted the ABA Project on

Minimum Standards for Criminal Justice, Standards Relating to Sentencing

Alternatives and Procedures § 4.4 (Approved Draft, 1968), which provides:

         Presentence report: Disclosure; parties.

         (a) Fundamental fairness to the defendant requires that the
         substance of all derogatory information which adversely
         affects his interests and which has not otherwise been
         disclosed in open court should be called to the attention of
         the defendant, his attorney, and others who are acting on
         his behalf.

         (b) This principle should be implemented by requiring that
         the sentencing court permit the defendant’s attorney, or the
         defendant himself if he has no attorney, to inspect the
         report. The prosecution should also be shown the report if it
         is shown to the defense. In extraordinary cases, the court
         should be permitted to except from disclosure parts of the
         report which are not relevant to a proper sentence,
         diagnostic opinion which might seriously disrupt a program
         of rehabilitation, or sources of information which has been
         obtained on a promise of confidentiality. In all cases where
         parts of the report are not disclosed under such authority,
         the court should be required to state for the record the
         reasons for its action and to inform the defendant and his
         attorney that information has not been disclosed. The action
         of the court in excepting information from disclosure should
         be subject to appellate review.

Phelps, 301 A.2d at 679.

      In Commonwealth v. Kessinger, 441 A.2d 758, 759 (Pa.Super.

1982), the appellant claimed the trial court abused its discretion in refusing

to allow him to inspect the pre-sentence report. We concluded that the record

did not support his contention, noting the appellant’s counsel had full access

to the report, and noting the appellant did not contend counsel failed to review

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it with him. Id. at 759-60. We explained this was in compliance with the

applicable rule of criminal procedure,5 Phelps, and the ABA Standards

adopted therein. Id.

        Here, as in Kessinger, Hetrick’s counsel reviewed a copy of the PSI and

a review of the transcript and his appellate brief reveals counsel reviewed the

PSI with Hetrick.6 Accordingly, we conclude that Hetrick’s claim lacks merit.

        Judgment of sentence affirmed.




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5   Rule 1404 previously governed the disclosure of PSIs and provided:

           Disclosure of Reports

           (a) All psychiatric and pre-sentence reports shall be
           confidential records. They shall be available only to:

              (1) the sentencing judge;

              (2) the attorney for the Commonwealth and counsel
              for the defendant for inspection, only, on conditions
              stated by the sentencing judge, provided that counsel
              shall not be supplied with copies of such reports unless
              ordered by the sentencing judge, but counsel shall be
              given the opportunity to comment thereon before the
              imposition of sentence[.]

Pa.R.Crim.P. 1404 (rescinded Jan. 1, 1992).

6 Commonwealth v. Herrick, cited by the trial court and in the PSI,
addresses a defendant’s right to access the PSI of a witness testifying against
him. 660 A.2d 51, 55-58 (Pa.Super. 1995). It does not address the
defendant’s right to access his own PSI.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/28/2019




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