J-S52003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

JASON MICHAEL SCHMITT,

                           Appellant                No. 759 WDA 2014


            Appeal from the Judgment of Sentence April 9, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0002349-2011


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 17, 2015

     Appellant, Jason Michael Schmitt, appeals from the judgment of

sentence entered on April 9, 2014, following the revocation of his probation.

After review, we vacate the judgment of sentence and remand for

resentencing.

     The record reveals that on March 31, 2011, Appellant was charged

with burglary, theft by unlawful taking, and conspiracy.     On August 30,

2011, Appellant entered a guilty plea at each count.         The trial court

sentenced Appellant to a term of eleven and one-half to twenty-three

months of incarceration followed by ten years of probation on the burglary

charge. No additional penalty was imposed for theft by unlawful taking or

conspiracy charges.
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      On April 9, 2014, the trial court held a violation of probation hearing,

and following the hearing, the trial court revoked Appellant’s probation and

resentenced Appellant to a term of two to four years of incarceration.

Appellant filed a timely motion for reconsideration that was denied on April

22, 2014. This timely appeal followed. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises one issue for this Court’s consideration:

      Whether the trial court abused its sentencing discretion in failing
      to order a pre-sentence investigation [(“PSI”)] report and/or in
      failing to place reasons on the record for failing to order a [PSI]
      report?

Appellant’s Brief at 4 (full capitalization omitted).

      Appellant’s claim of error is a challenge to the discretionary aspects of

his sentence.    Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.

Super. 2013).    We note that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.”      Commonwealth v. Martin, 727 A.2d 1136,

1143 (Pa. Super. 1999).         Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.      Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

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

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            [W]e 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.
            [708]; (3) whether appellant’s brief has a fatal
            defect, Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).   The determination of whether there is a substantial question is

made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912-913

(Pa. Super. 2000).

      Herein, the first three requirements of the four-part test are met:

Appellant brought a timely appeal, raised the challenges in a post-sentence

motion, and included in his appellate brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

      Appellant argues that the trial court erred in imposing a sentence

without ordering a PSI report, or in the alternative, failing to place on the

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record its reasons for not doing so.         Such a claim raises a substantial

question.     Carrillo-Diaz, 64 A.3d at 725.         Because Appellant’s issue

presents a substantial question, we proceed with our analysis.

      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.    Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.

Super. 2006). In this context, an abuse of discretion is not shown merely by

an error in judgment.       Id.    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. Id.

      In Carrillo-Diaz, a panel of this Court explained that:

                   The first responsibility of the sentencing judge
            is 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. Thus, a 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, not limited to those of record, as well as
            the defendant’s personal history and background....
            The court must exercise “the utmost care in
            sentence determination” if the defendant is subject
            to a term of incarceration of one year or more.

                  To assure that the trial court imposes sentence
            in consideration of both “the particular circumstances
            of the offense and the character of the defendant,”
            our Supreme Court has specified the minimum
            content of a PSI report. The “essential and adequate”
            elements of a PSI report include all of the following:

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              (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;

              (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

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                     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;

                     (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.

                    While case law does not require that the trial
              court order a [PSI] report under all circumstances,
              the cases do appear to restrict the court’s discretion
              to dispense with a PSI report to circumstances where
              the necessary information is provided by another
              source. Our cases establish, as well, that the court
              must be apprised of comprehensive information to
              make the punishment fit not only the crime but also
              the person who committed it.

Carrillo-Diaz, 64 A.3d at 725-726 (quoting Commonwealth v. Goggins,

748 A.2d 721, 728 (Pa. Super. 2000)) (internal citation and quotation marks

omitted).

       It is undisputed that the trial court failed to obtain a PSI report or

provide its reasons for proceeding without one. The trial court concedes that

this was error and that under the facts of this case, remand is required.1

Trial Court Opinion, 12/12/14, at 8. We agree. Because the trial court did

not obtain a PSI report or provide its reasons for foregoing the PSI report,

____________________________________________


1
  We note also that the Commonwealth concedes that the trial court’s failure
to obtain a PSI report and failure to explain why it did not obtain the PSI
report is a basis for vacating the judgment of sentence. Commonwealth’s
Brief at 7.



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we are constrained to vacate Appellant’s judgment of sentence and remand

for re-sentencing.   See Commonwealth v. Flowers, 950 A.2d 330, 334

(Pa. Super. 2008) (stating that the trial court’s failure to order a PSI report

and absence in the record of a colloquy that offered the functional equivalent

of the information contained in a PSI report constituted an abuse of

discretion necessitating remand for resentencing). On remand, and prior to

imposing sentence, the trial court shall either procure a PSI report or provide

its reasons for not obtaining it.

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2015




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