J-S22044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 ROGER H. KNIERIM                      :
                                       :
                   Appellant           :   No. 1794 MDA 2018

       Appeal from the Judgment of Sentence Entered October 4, 2018
  In the Court of Common Pleas of Huntingdon County Criminal Division at
                      No(s): CP-31-CR-0000500-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 ROGER H. KNIERIM, JR.                 :
                                       :
                   Appellant           :   No. 1795 MDA 2018

       Appeal from the Judgment of Sentence Entered October 4, 2018
  In the Court of Common Pleas of Huntingdon County Criminal Division at
                      No(s): CP-31-CR-0000595-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 ROGER H. KNIERIM, JR.                 :
                                       :
                   Appellant           :   No. 1796 MDA 2018

       Appeal from the Judgment of Sentence Entered October 4, 2018
  In the Court of Common Pleas of Huntingdon County Criminal Division at
                      No(s): CP-31-CR-0000646-2017


BEFORE:   SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S22044-19


MEMORANDUM BY PELLEGRINI, J.:                      FILED: MAY 23, 2019

        In these consolidated cases, Roger H. Knierim (Knierim) appeals from

the judgment of sentence imposed by the Huntington County Court of

Common Pleas (trial court) following the court’s revocation of his probation in

two retail theft matters and his entry of a guilty plea to a new charge of access

device fraud.1 We affirm.

        We take the following relevant facts and procedural history from the trial

court’s December 10, 2018 opinion and our independent review of the record.

On March 6, 2017, Knierim entered guilty pleas to two counts of retail theft at

two separate docket numbers, CP-31-CR-0000500-2016 and CP-31-CR-

0000595-2016. These charges arose from his theft of television sets from a

retail store. After ordering preparation of a pre-sentence investigation report

(PSI), the trial court sentenced Knierim to consecutive terms of five years of

probation in each case.

        In December 2017, the Huntington County Probation Department filed

a petition to revoke Knierim’s probation in both cases because he had been

arrested on new charges including access device fraud at Docket No. CP-31-

CR-0000646-2017. In that case, on October 4, 2018, Knierim entered a guilty

plea to the charge of access device fraud stemming from his use of another

person’s credit card without consent of the owner.         The trial court did not


____________________________________________


1   18 Pa.C.S. §§ 3929 and 4106(a)(1)(ii), respectively.


                                           -2-
J-S22044-19


direct preparation of another PSI report prior to sentencing.          The court

accepted Knierim’s admission to probation violations causing the revocation

of probation in the retail theft cases. It sentenced him on all three cases to

an aggregate term of not less than 48 nor more than 120 months’

incarceration. This timely appeal followed the court’s denial of Knierim’s post-

sentence motions.

      Knierim raises three issues on appeal, challenging his sentence as

excessive in light of his acceptance of responsibility for the property offenses

and his rehabilitative needs, the trial court’s dispensing of a second PSI report,

and the validity of his admission to probation violations. (See Knierim’s Brief,

at 16-23). Because his first two issues implicate the discretionary aspects of

his sentence, we begin by setting forth the applicable legal principles.

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation

omitted). “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.” Id.

(citation omitted). We conduct this four-part test to determine whether: (1)

the appellant preserved the issue either by raising it at the time of sentencing

or in a post[-]sentence motion; (2) the appellant filed a timely notice of

appeal; (3) the appellant set forth a concise statement of reasons relied upon

for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the


                                      -3-
J-S22044-19


appellant raises a substantial question for our review.” Id. (citation omitted).

“A defendant presents a substantial question when he sets forth a plausible

argument that the sentence violates a provision of the sentencing code or is

contrary     to   the   fundamental       norms   of   the   sentencing    process.”

Commonwealth v. Nevels, 203 A.3d 229, 246 (Pa. Super. 2019) (citation

omitted).

        With regard to his first claim challenging his sentence as excessive,

Knierim has complied with the first three prongs of this test by raising it in a

timely post-sentence motion, filing a timely notice of appeal, and including a

Rule 2119(f) concise statement in his brief. Additionally, his claim that his

sentence is manifestly excessive in that it constitutes too severe a punishment

presents a substantial question for our review.          See Commonwealth v.

Derry, 150 A.3d 987, 995 (Pa. Super. 2016). We will, therefore, address this

issue on the merits.2

____________________________________________


2   The relevant standard of review is as follows:

               Sentencing is a matter vested in the sound discretion of the
        sentencing judge. The standard employed when reviewing the
        discretionary aspects of sentencing is very narrow. We may
        reverse only if the sentencing court abused its discretion or
        committed an error of law. 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. We must accord



                                           -4-
J-S22044-19


       In arguing that his sentence was excessive, Knierim focuses on

mitigating factors, specifically, the role his substance abuse played in his theft

offenses and his acceptance of responsibility for his actions. (See Knierim’s

Brief, at 16-19).3

       At sentencing, the trial court heard at length from defense counsel

regarding Knierim’s struggles with substance abuse and his willingness to

accept responsibility for his offenses. (See N.T. Sentencing, 10/04/18, at 15-

19). Before sentencing Knierim, the court expressly stated that it had taken

into consideration the PSI prepared in June 2017, his need for rehabilitation


____________________________________________


       the sentencing court’s decision great weight because it was in the
       best position to review the defendant’s character, defiance or
       indifference, and the overall effect and nature of the crime.

Nevels, supra at 246-47 (citation omitted).

3 It is well-settled that where “the trial court has the benefit of a pre-sentence
report, we presume that the court was aware of relevant information regarding
the defendant’s character and weighed those considerations along with any
mitigating factors.” Commonwealth v. Johnson, 125 A.3d 822, 827 (Pa.
Super. 2015) (citation omitted). However, in Commonwealth v. Flowers,
950 A.2d 330 (Pa. Super. 2008), we held that Rule 702(A)(2) does not require
a court to specifically document the reasons for dispensing with a report.
Instead, the court has some latitude in fulfilling that requirement since the
ultimate goal of a PSI report is to ensure that the court is “apprised of
comprehensive information to make the punishment fit not only the crime but
also the person who committed it.” Commonwealth v. Goggins, 748 A.2d
721, 728 (Pa. Super. 2000) (en banc) (citation omitted). A court may
sentence without the benefit of a PSI report if it possesses the necessary
information from another source. See id. The record reflects, not only did
the trial court have a PSI report prepared less than 18 months from the date
of sentencing, it also had substantial background information to make an
informed decision regarding an appropriate sentence. See Commonwealth
v. Finnecy, 135 A.3d 1028 (Pa. Super. 2016).

                                           -5-
J-S22044-19


for his addiction issues, his prior failed attempts to turn his life around, and

his lengthy criminal record dating back to 1983. (See id. at 20-21). The

record, therefore, reflects that the court formulated its sentence taking into

consideration all relevant mitigating information in Knierim’s personal history.

Because we discern no abuse of discretion in the court’s imposition of

Knierim’s sentence, his first issue merits no relief.

      Regarding his claim that the trial court improperly dispensed with its

obligation to order preparation of a second PSI report, Knierim argues that

the trial court’s pre-sentence inquiry was deficient and that it was required to

learn the circumstances of his new offense.

      It is well-settled that objections to the discretionary aspects of a

sentence are waived if a defendant does not raise them at the sentencing

hearing or in a post-sentence motion.       See Commonwealth v. Padilla-

Vargas, 2019 WL 850032 at *4 (Pa. Super. filed Feb. 22, 2019); see also

Pa.R.A.P. 302(a). Knierim did not raise the issue of the lack of a PSI report

at sentencing or in his post-sentence motion and, therefore, it is waived.

      Finally, Knierim maintains that his admission to violation of his probation

was invalid because his admission was not made knowingly because his PCRA

counsel informed him that by withdrawing his PCRA appeal pending before

this Court, he would receive a concurrent sentence of one to two years in jail

on those cases. (See Knierim’s Brief, at 22-23). The Commonwealth counters

that Knierim waived this argument by failing to include it in his Rule 1925(b)


                                      -6-
J-S22044-19


statement. (See Commonwealth’s Brief, at 8-10). Our review of the record

confirms that Knierim omitted this claim from his Rule 1925(b) statement.

(See Rule 1925(b) Statement, 10/30/18).

      It is axiomatic that an appellant’s failure to comply with Rule 1925(b)

results in the waiver of issues on appeal.      See Pa.R.A.P. 1925(b)(4)(vii)

(“[i]ssues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”). In Commonwealth v.

Lord, 719 A.2d 306 (Pa. 1998), the Pennsylvania Supreme Court established

the bright-line rule that “Any issues not raised in a 1925(b) statement will be

deemed waived.” Id. at 309; see also Commonwealth v. Hill, 16 A.3d 484,

494 (Pa. 2011) (reaffirming principles stated in Lord). Accordingly, Knierim’s

failure to include his final issue on appeal in his Rule 1925(b) statement waives

the claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2019




                                      -7-
