J-S42026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

 MELVIN EDUARDO MARTINEZ-
 MALDONADO

                             Appellant              No. 1756 MDA 2016


            Appeal from the Judgment of Sentence September 1, 2016
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-CR-0000042-2016
                                           CP-22-CR-0000231-2015
                                           CP-22-CR-0000843-2014
                                           CP-22-CR-0002441-2015


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                     FILED NOVEMBER 13, 2017

       Melvin Eduardo Martinez-Maldonado appeals from the September 1,

2016 judgment of sentence entered in the Dauphin County Court of Common

Pleas following his revocation of probation. We affirm.

       On May 27, 2014, Martinez-Maldonado pled guilty to retail theft1 at CP-

22-CR-0000843-2014 (“Docket No. 843”) and the trial court sentenced him

to 1 year of probation. On May 19, 2015, Martinez-Maldonado pled guilty to

two counts of retail theft at CP-22-CR-0000231-2015 (“Docket No. 231”) and

the trial court sentenced him to 3 to 18 months’ incarceration. On February


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       1   18 Pa.C.S. § 3929(a)(1).
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24, 2016, Martinez-Maldonado entered guilty pleas at CP-22-CR-0002441-

2015 (“Docket No. 2441”) and CP-22-CR-0000042-2016 (“Docket No. 42”).

At Docket No. 2441, he pled guilty to possession of a controlled substance,2

and the trial court sentenced him to 12 months’ probation to run concurrently

with the probation imposed at Docket No. 843. At Docket No. 42, he pled

guilty to retail theft, criminal conspiracy – retail theft, and possession of drug

paraphernalia,3 and the trial court sentenced him to 12 months’ probation for

retail theft, to run consecutive to his probation at Docket No. 2441; a

concurrent 12 months’ probation for criminal conspiracy; and no additional

punishment for possession of drug paraphernalia.

       On February 24, 2016, the trial court also revoked Martinez-Maldonado’s

probation at Docket Nos. 843 and 231. The trial court sentenced him to 24

months’ probation at Docket No. 843, and at Docket No. 231, the trial court

sentenced him to serve the balance of 11 months and 26 days’ incarceration

for the retail theft conviction, immediate parole to house arrest with electronic

monitoring, and a concurrent 11 months and 26 days’ incarceration,

immediate parole, for the criminal conspiracy conviction.




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       2   35 P.S. § 780-113(a)(16).

       318 Pa.C.S. § 3929(a)(1), § 903, and 35 P.S. § 780-113(a)(32),
respectively.

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      On September 1, 2016, Martinez-Maldonado again appeared before the

trial court for a probation revocation hearing at Docket Nos. 843, 231 2441,

and 42. The trial court set forth the following facts:

            [Martinez-Maldonado]’s Dauphin County Probation
         Officer, Allen Proper testified that between April 5, 2016 and
         May 10, 2016, [Martinez-Maldonado] accrued numerous
         violations of the sentencing condition of electronic
         monitoring. Parole Officer Proper testified that [Martinez-
         Maldonado] violated the conditions in spite of the instruction
         that [Martinez-Maldonado] obtain permission to leave his
         house to work or attend treatment.

            [Martinez-Maldonado] violated the condition of house
         arrest by residing at unknown and unapproved addresses.
         In addition, without notifying Parole Officer Proper,
         [Martinez-Maldonado] remained out until midnight on one
         occasion and 2 a.m. on another without prior notification.
         Further, Officer Proper encountered [Martinez-Maldonado]
         driving under a suspended license in an area remote from
         his approved address.1 A search of [Martinez-Maldonado]’s
         vehicle recovered hypodermic needles.
            1[Martinez-Maldonado] ple[d] guilty to driving under
            suspension.

Trial Court Opinion, 1/17/17, at 3-4 (“1925(a) Op.”) (internal citations

omitted).   The trial court revoked Martinez-Maldonado’s probation and re-

sentenced him as follows:

         [Docket No. 843] – Count 1 – Retail Theft – Parole is
                          revoked.     [Martinez-Maldonado]    to
                          serve 18 to 36 months at a state
                          correctional   institution.  [Martinez-
                          Maldonado] is to receive credit of 12
                          months and 13 days in computing that
                          sentence. RRRI eligible – 13 months
                          and 15 days. . . .

         [Docket No. 231] – Count 1 – Retail Theft – Parole is
                          revoked.  [Martinez-Maldonado]    to

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                            serve balance of 8 months and 3 days
                            concurrent with [Docket No. 42] and
                            with the following credit NOT already
                            applied:    5/10/2016 to 9/01/2016.
                            Immediate parole, released to State
                            sentence.    Count 2 – Conspiracy –
                            Parole is revoked. To serve 8 months
                            and 3 days. Immediate parole.

         [Docket No. 2441] – C[ount] 1 – Unlawful Possession of
                           Controlled Substance – Probation is
                           revoked. To serve balance of 6 months
                           and 28 days concurrent with Docket
                           [No. 843] and with the Docket [No. 42]
                           – Retail Theft Count 1 – Probation is
                           revoked. [Martinez-Maldonado] is to
                           serve 12 to 24 months at SCI
                           consecutive to Docket [No. 843]. RRRI
                           eligible in 9 months; [Martinez-
                           Maldonado] is given credit for 5 months
                           and 5 days. Count 2 – Retail Theft –
                           closed.

         [Docket No. 42] – Retail Theft Count 1 – Probation is
                          revoked. [Martinez-Maldonado] is to
                          serve 12 to 24 months at SCI
                          consecutive to Docket [No. 843]. RRRI
                          eligible in 9 months; [Martinez-
                          Maldonado] is given credit for 5 months
                          and 5 days. Count 2 – Retail Theft –
                          closed.

Id. at 2-3.

      On September 12, 2016, Martinez-Maldonado filed a post-sentence

motion/motion   for   reconsideration.   On   September   28,   2016,   the

Commonwealth filed an answer. On October 5, 2016, before the trial court

ruled on his motion, Martinez-Maldonado filed a petition under the Post

Conviction Relief Act (“PCRA”) seeking to have his appeal rights reinstated.

On October 12, 2016, the trial court granted Martinez-Maldonado’s PCRA


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petition and reinstated his appellate rights. On October 14, 2016, the trial

court denied Martinez-Maldonado’s post-sentence motion and on October 18,

2016, Martinez-Maldonado filed a notice of appeal.

       On appeal, Martinez-Maldonado raises the following issue: “Whether

the trial court committed an error when it sentenced Martinez-Maldonado to

an aggregate period of incarceration of not less than eighteen (18) months to

no more than thirty-six (36) months at a state correctional institute[.]”

Martinez-Maldonado’s Br. at 5.4 In particular, Martinez-Maldonado claims that

the trial court abused its discretion by failing to order a PSI report. Id. at 11.

       Martinez-Maldonado’s issue challenges the discretionary aspects of his

sentence. “Challenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011).           Before we address such a challenge, we first

determine:

           (1) whether the appeal is timely; (2) whether [a]ppellant
           preserved his issue; (3) whether [a]ppellant’s brief includes
           a concise statement of the reasons relied upon for allowance
           of appeal with respect to the discretionary aspects of
           sentence; and (4) whether the concise statement raises a
           substantial question that the sentence is appropriate under
           the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).


____________________________________________


       4Martinez-Maldonado does not challenge the revocation of his
probation; rather, he challenges the sentence imposed.

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      Martinez-Maldonado filed a timely notice of appeal, preserved his claim

in a timely post-sentence motion, and included in his brief a concise statement

of reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule

of Appellate Procedure 2119(f).        Additionally, Martinez-Maldonado’s claims

that the trial court dispensed with a pre-sentence investigation (“PSI”) report

without adequately stating its reasons and that his sentence is excessive in

light of the technical violations of his probation raise substantial questions.

See Commonwealth v. Flowers, 950 A.2d 330, 332 (Pa.Super. 2008)

(stating that an “allegation that the trial court imposed sentence ‘without

considering the requisite statutory factors or stating adequate reasons for

dispensing with a pre-sentence report’” raises a substantial question) (quoting

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000));

Commonwealth v. Malovich, 903 A.2d at 1253 (“[A] claim that a particular

probation revocation sentence is excessive in light of its underlying technical

violations can present a question that we should review.”). Accordingly, we

will review the merits of his claim.

      “Sentencing is a matter vested within the discretion of the trial court

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

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                 “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




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record as a whole must reflect the sentencing court’s consideration of the facts

of the crime and character of the offender.” Id. at 1283.

       Martinez-Maldonado claims that the trial court erred in failing to order a

PSI report.     He contends that, as a consequence, the trial court did not

properly assess Martinez-Maldonado’s character and potential response to

rehabilitation programs.

       “[A] claim that the court erred in failing to order a PSI report raises a

discretionary aspect of sentencing of which a defendant’s right to appellate

review is exceptionally limited.” Flowers, 950 A.2d at 331. Pennsylvania

Rule of Criminal Procedure 702(A)(1) provides that a sentencing judge may,

in his or her discretion, order a PSI report. Pa.R.Crim.P. 702(A)(1). Further,

if the sentencing court fails to order a PSI report, it shall place on the record

its reasons for dispensing with the report.5 Id. We have explained that “[t]he

essential inquiry is . . . whether the sentencing court was ‘apprised of

comprehensive information to make the punishment fit not only the crime but

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       5Rule 702(A)(2) provides that the sentencing judge must place reasons
for dispensing with a PSI report on the record in any of the following instances:

           (a) when incarceration for one year or more is a possible
           disposition under the applicable sentencing statutes;

           (b) when the defendant is less than 21 years old at the time
           of conviction or entry of a plea of guilty; or

           (c) when a defendant is a first offender in that he or she has
           not heretofore been sentenced as an adult.

Pa.R.Crim.P. 702(A)(2).


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also the person who committed it.’” Commonwealth v. Finnecy, 135 A.3d

1028, 1032 (Pa.Super.) (internal citation omitted), app. denied, 159 A.3d 935

(Pa. 2016).   Moreover, technical non-compliance with the requirements of

Rule 702(A)(2) may be harmless when the trial court elicits sufficient

information during the colloquy to substitute a PSI report, thereby allowing a

fully informed decision. Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 727

(Pa.Super. 2013).

      Here, the trial court concluded:

             The Court properly exercised its sentencing discretion
         following revocation based upon [Martinez-Maldonado]’s
         repeated violation of probationary conditions and lack of
         amenability to rehabilitation outside of incarceration.

                                     ...

            Further, in considering the sentences, we did not require
         a [PSI report]. We were fully apprised of the facts of
         [Martinez-Maldonado]’s violations based upon the evidence
         presented at the September 1, 2016, revocation hearing
         and at [Martinez-Maldonado]’s February 24, 2016,
         revocation hearing. A [PSI report] is unnecessary where the
         court has “sufficient information to substitute for a [PSI
         report] thereby allowing a fully informed individualized
         sentencing decision.” [Carrillo-Diaz, 64 A.3d at 727].

1925(a) Op. at 4-5.

      At the September 2016 revocation hearing, the Honorable John F.

Cherry stated that he had also presided over Martinez-Maldonado’s sentencing

in 2015 and his revocation of probation in February 2016. N.T., 9/1/16, at 7,

10-11. The trial court inquired into Martinez-Maldonado’s age, stated that

Martinez-Maldonado had a prior record score of five, that the court had


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provided him multiple opportunities, and “no matter how much kindness or

opportunities [are] extended, he will continue to tell us how we’re wrong and

he’s right.”   Id. at 7, 11.   Further, during the February 2016 revocation

hearing, the trial court was apprised of Martinez-Maldonado’s employment and

mental and physical health issues. N.T., 2/24/16, at 6-7. Finally, Martinez-

Maldonado’s written guilty plea colloquies also provided his educational

background.

      Martinez-Maldonado relies on Flowers to support his argument that a

PSI report was necessary. In Flowers, we stated that, “even where repeated

probation violation hearings have rendered the sentencing judge substantially

familiar with the defendant’s criminal history, a PSI report remains

necessary.” 950 A.2d at 333-34. We explained that “[t]his mandate springs

from the imperative of individualized sentencing. . . .      To achieve that

objective, the trial judge, before imposing sentence, even on a probation or

parole revocation, must actively explore the defendant’s character and his

potential response to rehabilitation programs.” Id. at 334. We held that the

need for a PSI report was apparent because the trial court relied on a limited

colloquy consisting of the seriousness of the offense and the violation of

probation. Id.

      Here, the trial court presided over Martinez-Maldonado’s sentencing and

revocation hearings; had before it Martinez-Maldonado’s age, educational

background, employment, and mental and physical health issues; was aware


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of the facts constituting the violation of probation; and found that Martinez-

Maldonado repeatedly had failed to take advantage of the opportunities the

court provided.

      Although the trial court did not state on the record its reasons for

dispensing with a PSI report, it had sufficient information to allow it to

determine the circumstances of the offense and Martinez-Maldonado’s

character. See Flowers, 950 A.2d at 334 (“[T]he first responsibility of the

sentencing judge [is] to be sure that he ha[s] before him sufficient information

to enable him to make a determination of the circumstances of the offense

and the character of the defendant.”) (quoting Goggins, 748 A.2d at 728).

      Accordingly, we conclude the trial court did not abuse its discretion in

dispensing with a PSI report and in sentencing Martinez-Maldonado.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




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