J-S48007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

PAUL BARONE

                        Appellant                   No. 1120 WDA 2014


            Appeal from the Judgment of Sentence June 4, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0009732-2012


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                        FILED OCTOBER 20, 2015

     Appellant, Paul Barone, appeals from the judgment of sentence

entered following the revocation of his probation on June 4, 2014, in the

Court of Common Pleas of Allegheny County. After review, we vacate the

judgment of sentence and remand for resentencing.

     Barone originally entered a guilty plea to criminal trespass on March

25, 2013, and was sentenced to seven years’ probation.          A year later,

Barone violated his probation and was re-sentenced to one year of

intermediate punishment followed by five years’ probation.

     A little over a year after that, Barone once again appeared for a

probation violation hearing after testing positive for opiates. A pre-sentence

investigation report (PSI) was not requested prior to sentencing, and the

revocation court did not offer its reasons for not requesting a PSI or
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otherwise receive any pertinent sentencing information. At the conclusion of

the brief hearing, the court summarily revoked Barone’s probation and re-

sentenced him to 18 to 36 months’ imprisonment. Barone filed a motion for

reconsideration of sentence, which the court denied.            This timely appeal

followed.

     Barone argues on appeal that the revocation court erred in imposing a

sentence     without   requesting   a   PSI   report   or   otherwise   taking   into

consideration his background, character, or rehabilitative needs. This issue

challenges the discretionary aspects of Barone’s sentence. Our scope of

review in an appeal from a revocation sentencing includes discretionary

sentencing challenges. See Commonwealth v. Cartrette, 83 A.3d 1030,

1034 (Pa. Super. 2013) (en banc). Therefore, Barone’s claim is properly

before us.

     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).

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

     [We] conduct a four-part analysis to determine: (1) whether
     appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
     and 903; (2) whether the issue was properly preserved at
     sentencing or in a motion to reconsider and modify sentence,
     see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
     defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial


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       question that the sentence appealed from is not appropriate
       under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

       Here, Barone filed a timely appeal and challenged his sentence in a

post-sentence motion.1 Barone’s appellate brief also contains the requisite

2119(f) concise statement.           Therein, Barone’s challenge focuses on the

sentencing court’s failure to order a PSI report or conduct an appropriate

colloquy at sentencing. See Appellant’s Brief at 13.         These claims raise

substantial questions for our review. See Commonwealth v. Flowers, 950

A.2d 330, 332 (Pa. Super. 2008).

       “Imposition of a sentence is vested in the discretion of the sentencing

court and will not be disturbed absent a manifest abuse of discretion.”

Commonwealth v. Smith, 673 A.2d 893, 895 (1996) (citation omitted).

We proceed to the merits.

       A PSI report may be requested for sentencing at the discretion of the

sentencing court. See Pa.R.Crim.P 702(A)(1). If the sentencing court does

____________________________________________


1
   In its Rule 1925(a) opinion, the lower court concludes that Barone’s
apparent failure to serve the court with a copy of his Rule 1925(b) Concise
Statement of Errors Complained of on Appeal, filed with the Department of
Court Records on August 26, 2014, results in waiver of his claim on appeal.
See Trial Court Opinion, 12/4/14. In its brief, the Commonwealth agrees
with Barone’s suggestion that, in the interests of judicial economy, we
should not find waiver of Barone’s claims. See Commonwealth’s Brief at 10.
As there is no objection from the Commonwealth, we decline to find waiver
in this instance.



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not order a PSI report, the sentencing court must “place on the record the

reasons for dispensing with the pre-sentence investigation report … when

incarceration for one year or more is a possible disposition under the

applicable sentencing statutes.” Pa.R.Crim.P 702(A)(2)(a).

     The reasoning given for not requesting a PSI report must, “even on a

probation or parole revocation, … actively explore the defendant's character

and his potential response to rehabilitation programs.” Commonwealth v.

Kelly, 33 A.3d 638, 641 (Pa. Super. 2011) (citation omitted).           An active

exploration into the defendant’s character and potential responses may

include information normally found in PSI reports such as the following:

     (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;




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      (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
            educational facilities, rehabilitative programs of various
            institutions to which the offender might be committed,
            special programs in the probation department, and other
            similar programs which are particularly relevant to the
            offender's situation; [and]

      (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.

Id. at 641-42 (citation omitted). Even if a sentencing court is familiar with a

defendant, a PSI report is still necessary to provide a sufficient amount of

information for sentencing. See Flowers, 950 A.2d at 333-34.

      Here, the sentence for Barone’s probation violation carried a possible

incarceration period of greater than one year. Therefore, the sentencing

court should have requested a PSI report or provided reasoning for not

ordering the PSI report.      See Pa.R.Crim.P 702(A)(2)(a).        During the

sentencing hearing, however, the sentencing court did not receive a PSI

report or give a reason for not requesting a PSI report.     Indeed, the two-

page sentencing transcript reveals that the sentencing court did not receive

any pertinent sentence information or conduct an appropriate colloquy for

not requesting a PSI prior to imposing sentence. Although the sentencing

court was familiar with Barone and his case, familiarity with the case alone

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does not mean there was enough information to sentence Barone without a

PSI. See Flowers, 950 A.2d at 333-34.

     Based on the foregoing, we agree with Barone that the information (or

lack thereof) provided during the sentencing hearing was not sufficient to

determine an accurate individualized sentence.       Accordingly, we are

constrained to vacate the judgment of sentence and remand for re-

sentencing.

     On remand, the sentencing court must either order a PSI report or

conduct a comprehensive colloquy that offers the equivalent information a

PSI report would otherwise provide.

     Judgment of sentence vacated.      Case remanded for re-sentencing in

accordance with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




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