J. A10010/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :         IN THE SUPERIOR COURT OF
                                          :              PENNSYLVANIA
                                          :
                  v.                      :
                                          :
WAYNE DUMAS                               :
                         APPELLANT        :
                                          :
                                          :         No. 929 EDA 2016

         Appeal from the Judgment of Sentence February 22, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014535-2011

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                 FILED JULY 21, 2017

      Appellant, Wayne Dumas, appeals from the February 22, 2016

Judgment of Sentence imposed after the court found him in violation of

probation (“VOP”). After careful review, we conclude the VOP court failed to

conduct a proper sentencing proceeding. We, thus, vacate and remand for

resentencing.

      On January 24, 2013, Appellant entered a negotiated guilty plea to

Criminal Trespass.     The Honorable Rayford Means sentenced Appellant to

three years’ probation. While on probation, Appellant committed a Robbery.

On May 1, 2015, the Honorable Daniel J. Anders convicted him of the

Robbery charge and imposed a sentence of fifteen to thirty months’

incarceration, followed by five years’ probation.
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        On February 22, 2016, Judge Means held a VOP hearing that lasted

approximately two-and-a-half minutes.1 At the hearing, the Commonwealth

told Judge Means about Appellant’s initial conviction for Criminal Trespass,

on which the court had imposed a sentence of three years’ probation, and

informed the court of Appellant’s violation resulting from the subsequent

Robbery conviction.       The Commonwealth then requested a consecutive

sentence of one-and-a-half to three years’ incarceration, followed by four

years’ probation.     Appellant declined to allocute.      See N.T. VOP Hearing,

2/22/16, at 3-5.      At the end of the hearing, Judge Means concluded that

Appellant was in direct violation of his probationary sentence, revoked

Appellant’s probation, and sentenced him to the statutory maximum

sentence     of   three-and-a-half   to   seven   years’   imprisonment,   to    run

consecutively to his Robbery sentence.

        On February 24, 2016, Appellant filed a Petition for Reconsideration of

Sentence, which the VOP court denied.           Appellant timely appealed.      Both

Appellant and the VOP court complied with Pa.R.A.P. 1925.

        Appellant raises the following issue on appeal:

        Did the lower court abuse its discretion where, during a
        perfunctory two[-]and[-]one-half minute video hearing, the
        court revoked [A]ppellant’s probation and imposed a manifestly
        excessive, consecutive statutory maximum sentence, without
        considering, or even having knowledge of, [A]ppellant’s personal
        history and rehabilitative needs, and without stating any reasons
        for its sentence?

1
    Appellant “appeared” via video monitor.



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Appellant’s Brief at 3.

      When we consider an appeal from a sentence imposed after the VOP

court has revoked probation, our review is limited to “the validity of the

revocation    proceedings,   the   legality   of   sentence    imposed   following

revocation, and any challenge to the discretionary aspects of the sentence

imposed.”     Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super.

2015) (citation omitted).

      Instantly, Appellant raises a challenge to the discretionary aspects of

his sentence.     We review a sentencing determination for an abuse of

discretion.    Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super.

2014).      However, “[t]he right to appellate review of the discretionary

aspects of a sentence is not absolute, and must be considered a petition for

permission to appeal.” Id. In order to invoke this Court’s jurisdiction, we

must consider the following four elements:

      (1)     whether appellant has filed a timely notice of appeal;
      (2)     whether the issue was properly preserved at sentencing or
              in a motion to reconsider and modify sentence;
      (3)     whether appellant's brief has a fatal defect; and
      (4)     whether there is a substantial question that the sentence
              appealed from is not appropriate under the Sentencing
              Code.

Id.

      Here, Appellant filed a timely Notice of Appeal, properly preserved the

issues, and included in his brief a Statement of Reasons relied upon for

allowance of appeal, pursuant to Pa.R.A.P. 2119(f).           Accordingly, we next


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determine whether Appellant’s claim presents a “substantial question” for

review.

       An appellant raises a “substantial question” when he “sets forth a

plausible   argument     that   the   sentence      violates   a      provision    of    the

[S]entencing [C]ode or is contrary to the fundamental norms of the

sentencing process.”       Commonwealth v. Crump, 995 A.2d 1280, 1282

(Pa. Super. 2010) (citation omitted).

       Appellant argues that he presents a “substantial question” that

warrants review by this Court because the VOP court imposed a manifestly

excessive    sentence      without    considering       Appellant’s     background        or

rehabilitative needs, without stating on the record its reasons for dispensing

with a pre-sentence investigative (“PSI” report), and without stating any

reasons for the sentence on the record. Appellant’s Brief at 7-9. We agree

that   Appellant   has      raised    a   “substantial      question.”      See,        e.g.,

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)

(concluding that a claim that a sentence is manifestly excessive presents a

“substantial question” for review); Commonwealth v. Flowers, 950 A.2d

330, 332 (Pa. Super. 2008) (imposition of a sentence without considering

the requisite statutory factors or stating adequate reasons for dispensing

with   a    pre-sentence    report    does      raise   a   “substantial     question”);

Commonwealth v. L.N., 787 A.2d 1064, 1071 (Pa. Super. 2001) (stating a

claim that a sentencing court has failed to state adequate reasons on the



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record for the sentence imposed presents a “substantial question” for

review).

      Now that we have found that Appellant raised a “substantial question,”

we will address the merits of Appellant’s claims.    Appellant avers that the

VOP court violated the Sentencing Code when it failed to order a PSI report,

failed to state on the record the reasons for dispensing with a PSI report,

and failed to state its reasons for imposing the sentence on the record.2

Appellant’s Brief at 10. Appellant also contends that his sentence of three-

and-a-half to seven years’ incarceration was manifestly unreasonable and

excessive. Appellant’s Brief at 13.

      This Court has explained the general standards that a VOP court is to

apply in sentencing a defendant:

      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 Pa.C.S. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact
      on victim and community, and rehabilitative needs of defendant,
      and it must impose an individualized sentence. The sentence
      should be based on the minimum confinement consistent with
      the gravity of the offense, the need for public protection, and the
      defendant's needs for rehabilitation.

Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006)

(citation omitted).    When a court resentences an offender following

revocation of probation “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

2
  The Commonwealth does not oppose a remand to allow the court to
explain the reasons for its sentence. Commonwealth’s Brief at 7.



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or reasons for the sentence imposed.”      42 Pa.C.S. § 9721(b); see also

Pa.R.Crim.P. 708(D). When stating its reasons, “[a] sentencing court need

not undertake a lengthy discourse for its reasons for imposing a sentence or

specifically reference the statute in question, but the record as a whole must

reflect the sentencing court's consideration of the facts of the crime and

character of the offender.” Crump, supra at 1283. Failure to comply with

Section 9721(b) “shall be grounds for vacating the sentence or resentence

and resentencing the defendant.” 42 Pa.C.S. § 9721(b).

      It is the sentencing judge’s responsibility to be sure that he has 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. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000).                A

sentencing court has the discretion to order a PSI report to aid in fashioning

an individualized sentence.   See Pa.R.Crim.P. 702(A); Goggins, supra at

728-29 (listing “essential and adequate elements” of a PSI report).        The

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 . . . as well as the defendant’s

personal history and background.” Goggins, supra at 728. When deciding

to forgo a PSI report in cases where incarceration for one year or more is a

possible disposition, Rule 702 requires the court to place its reasons for




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dispensing   with   the   PSI    report   on    the   record.   See   Pa.R.Crim.P.

702(A)(2)(a).

      In the instant case, the notes of testimony show that at the time of

the resentencing hearing, the VOP court did not state on the record any

reasons for imposing Appellant’s sentence as required by Section 9721 and

corresponding Rule 708.3          The record as a whole fails to reflect any

consideration of the “facts of the crime and character of the offender.” See

Crump, supra at 1283.           Rather, the two-and-a-half minute long hearing

consisted solely of a recitation of Appellant’s former and current convictions

and their corresponding sentences.

      In addition, the VOP court failed to place on the record its reasons for

dispensing with a PSI report as required by Rule 702; and, in the absence of

a PSI report, the court failed to conduct a pre-sentence inquiry as required

pursuant to Goggins, supra. The VOP hearing transcript is devoid of any

information regarding the circumstances of Appellant’s probation violation

and the facts of his crimes, his educational and employment background, his

social and familial history, or his medical and psychiatric history. The court


3
  In its 1925(a) Opinion, the VOP court lists several factors that it took into
consideration when imposing Appellant’s new sentence, but this does not
fulfill the requirements of Section 9721(b).       See Commonwealth v.
Flowers, 149 A.3d 867, 876 (Pa. Super. 2016) (stating that “it is not
sufficient for the trial court to state its reasons in a post-sentence Rule
1925(a) opinion.”). Rather, “[t]he reasons must be given in open court at
the time of sentencing.” Id. (quotation marks and citations omitted).




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would have been privy to this background information had it ordered a PSI

report or conducted the required pre-sentence inquiry.

     We conclude that the VOP court abused its discretion when it failed to

state on the record the reasons for the sentence imposed, failed to state on

the record the reasons for dispensing with a PSI report, and failed to

conduct a pre-sentence inquiry regarding the circumstances of the offense

and the character of the defendant in order to fashion an individualized

sentence. Accordingly, we are constrained to remand this matter to the VOP

court for re-sentencing.   Because our disposition renders Appellant’s claim

that his sentence was manifestly excessive unripe, we decline to address it.

See Flowers, 149 A.3d at 877.

     Judgment of sentence vacated.      Case remanded for resentencing in

accordance with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2017




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