J-S03025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

STEPHEN J. HAAG

                          Appellant                No. 1610 EDA 2014


            Appeal from the Judgment of Sentence April 8, 2014
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0001469-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                           FILED APRIL 07, 2015

     Appellant, Stephen J. Haag, appeals from the judgment of sentence

entered following his guilty plea to one count of possession of drug

paraphernalia and one count of possession of a small amount of marijuana.

Haag contends that the sentence imposed by the trial court is excessive, and

violates his right against cruel and unusual punishment.        After careful

review, we affirm.

     In May 2013, Pocono Mountain Regional Police (“PMRP”) received a tip

from a confidential informant that Haag, a convicted felon, was in possession

of a firearm.   A check of departmental records revealed that on April 9,

2013, during a burglary investigation, a PMRP officer had observed a gun in

plain view in the bedroom Haag shared with his ex-wife, Carla Dekis.
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Further investigation revealed that a handgun matching the description of

the one seen during the burglary investigation was registered to Dekis.

      PMRP officers obtained a search warrant for the house shared by Haag

and Dekis. Officers found the gun in the bottom drawer of a dresser in the

bedroom. Officers also found two clear baggies containing small amounts of

marijuana as well as assorted pipes containing marijuana residue, as well as

a grinder.

      Haag was charged with possession of a small amount of marijuana,

possession of drug paraphernalia, and felony possession of a firearm by a

disqualified person.   Haag filed motions seeking a finding of diminished

mental capacity, or in the alternative, a jury instruction regarding guilty but

mentally ill. The trial court denied both motions, and on February 3, 2014,

Haag pled guilty to the drug-related charges; the firearm charge was

dropped.

      Haag was subsequently sentenced to 6 to 12 months’ imprisonment on

the paraphernalia charge, and a concurrent sentence of 15 to 30 days on the

marijuana charge. Haag filed post-sentence motions, which the trial court

denied. This timely appeal followed.

      On appeal, Haag raises two issues for our review. First, Haag argues

that the trial court abused its discretion in imposing a sentence in the

aggravated range of the sentencing guidelines.       Haag concedes that this

claim raises a challenge to the discretionary aspects of the sentence


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imposed. See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa.

Super. 2007).

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.        See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274. “First, an appellant must set forth in his brief a concise statement of

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

discretionary aspects of a sentence.” Id.

       “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id.    That is, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at

365.    We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts




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underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id.

      In the present case, Haag filed post-sentence motions challenging his

sentence and his appellate brief contains the requisite Rule 2119(f) concise

statement, and, as such, is in technical compliance with the requirements to

challenge the discretionary aspects of his sentence.   Haag argues in his Rule

2119(f) statement that the trial court, in imposing sentence, “focused

primarily on the defendant’s use of marijuana and the weapons offense

charged but to which he did not plead.” Appellant’s Brief at 7.           Even

assuming that this claim raises a substantial question, Haag is due no relief.

      Our standard when reviewing sentencing matters is as follows.

      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. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted).

      A sentencing court may consider uncharged criminal conduct of the

defendant.     See Commonwealth v. Shugars, 895 A.2d 1270, 1278 (Pa.

Super. 2006). Thus, to the extent, if any, that the trial court relied upon

Haag’s possession of a firearm in imposing sentence, such reliance was

permissible.     Furthermore, the sentencing court is presumed to have

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considered all relevant aspects of a defendant’s character when a pre-

sentence report is available, as was the case here. See Commonwealth v.

Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988)). Finally, our review of the sentencing

transcript reveals that the sentencing court was primarily concerned with

Haag’s admission that he did not want to quit his marijuana use. See N.T.,

Sentencing, 4/8/14, at 8. We cannot conclude that the sentencing court’s

consideration of this circumstance, which reveals a low probability for

rehabilitative success and Haag’s lack of remorse for committing the crime,

constitutes an abuse of discretion. Therefore, no relief is due on this issue.

      In his second and final issue, Haag contends that the sentencing court

violated his rights by failing to hold a hearing on his claim of cruel and

unusual punishment.     We note that, despite the presence of this claim in

Haag’s statement of issues on appeal, the sentencing court has not

addressed this issue. We are therefore without the benefit of the reasoning

supporting this decision.

      However, we need not remand for the preparation of an opinion by the

sentencing court, as a review of Haag’s motion for reconsideration of his

sentence merely alleged generally that the county prison was incapable of

administering necessary treatments. The motion did not specifically identify

any treatments that are (a) necessary for Haag’s health, and (b) unavailable

in the county prison.   We therefore conclude that the motion did not set


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forth a colorable claim that Haag’s right against cruel and unusual

punishment was at issue.     See Commonwealth v. Carr, 543 A.2d 1232,

1235 (Pa. Super. 1988) (claim that prison’s mental health treatments were

inadequate did not raise a claim that defendant’s right against cruel and

unusual punishment had been violated). Thus, no hearing was necessary,

and Haag is due no relief on this issue.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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