Commonwealth v. Kelly

• Decision Date: 02 December 2011
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. James Franklin KELLY, Appellant.
• Court: Pennsylvania Superior Court

2011 PA Super 262

33 A.3d 638

COMMONWEALTH of Pennsylvania, Appellee

v.James Franklin KELLY, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 15, 2011.Filed Dec. 2, 2011.

Joseph J. Hartye, Hollidaysburg, for appellant.

Richard A. Consiglio, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.

BEFORE: ALLEN, LAZARUS, and OTT, JJ.

OPINION BY LAZARUS, J.:

James Franklin Kelly appeals from his judgment of sentence entered on January 10, 2011, after he was found to be in violation of his two probations. After careful review, we vacate and remand for resentencing.

On January 11, 2010, Kelly pled guilty to one count each of theft ¹ and possession of drug paraphernalia.² He was sentenced to two concurrent one-year terms of probation, plus fines and costs.

On December 22, 2010, Kelly appeared before the court on various probation violations. He did not contest the violations, but requested the court order a presentencing psychiatric evaluation. The court declined to order the evaluation and did not order a presentence investigation (“PSI”). The court revoked both of Kelly's probations and sentenced him to consecutive terms of 12 to 24 months' (theft) and 6 to 12 months' (possession) incarceration. Kelly did not file post-sentence motions.

Kelly filed a timely notice of appeal on January 12, 2011. The trial court ordered Kelly to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which he did on February 1, 2011. The trial court filed its Pa.R.A.P. 1925(a) opinion on February 8, 2011.

On appeal, Kelly raises the following issue for our consideration:

WHETHER THE GAGNON [II] COURT COMMITTED AN ERROR WHEN IT SENTENCED KELLY TO A PERIOD OF INCARCERATION OF NOT LESS THAN EIGHTEEN (18) MONTHS TO NO MORE THAN THIRTY–SIX (36) MONTHS AT A STATE CORRECTIONAL INSTITUTE?

Brief of Appellant, at 7.

Kelly's appeal raises a challenge to the discretionary aspects of his sentence. Such a challenge must be considered a petition for permission to appeal. Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.Super.2007). The Rules of Appellate Procedure mandate that, to obtain review of the discretionary aspects of a sentence, the appellant must include in his brief a Concise Statement of Reasons Relied Upon for Allowance of Appeal. See Pa.R.A.P. 2119(f). This statement must “raise a substantial question as to whether the trial judge, in imposing sentence, violated a specific provision of the Sentencing Code or contravened a ‘fundamental norm’ of the sentencing process.” Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa.Super.2008).

Here, Kelly has included a Rule 2119(f) statement, in which he claims that his sentence was “manifestly excessive in light of its severity and because of the nature of his probation violations and his potential mental health problems.” Brief of Appellant, at 11. Kelly also asserts that the trial court imposed his sentence “without considering the requisite statutory factors and failed to adequately state reasons for dispensing with a PSI and a psychiatric report [.]” Id.

A claim that a sentence is manifestly excessive such that it constitutes too severe a punishment raises a substantial question. See Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 624 (2002). However, Kelly's brief is devoid of argument on this claim and, thus, we find it to be waived. Commonwealth v. Clayton, 572 Pa. 395, 816 A.2d 217, 221 (2002) ( “[I]t is a well settled principle of appellate jurisprudence that undeveloped claims are waived and unreviewable on appeal.”).

Kelly's next claim concerns the failure of the trial court to order a PSI and psychiatric report. “[A]n appellant's 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.” Flowers, 950 A.2d at 332 (citation and quotation omitted). Thus, we will consider the merits of Kelly's claim.

In support of his claim, Kelly argues that, although the trial court has discretion to dispense with a PSI under certain circumstances, the court must document its reasons for doing so.³ Brief of Appellant, at 12 (citing Pa.R.Crim.P. 702(A)(2)). Kelly asserts that a sentencing judge must either order a PSI or conduct sufficient pre-sentence inquiry so that 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. Id. at 12–13 (citing Commonwealth v. Goggins, 748 A.2d 721 (Pa.Super.2000)). Kelly asserts that the court not only dispensed with a PSI, but also neglected to conduct a sufficient pre-sentence inquiry prior to imposing sentence. Id. at 14. Thus, the court did not satisfy the dictates of Rule 702.

In its Rule 1925(a) opinion, the trial court stated that it “cited numerous reasons for why an eighteen to thirty-six month sentence was imposed ... and those reasons are readily apparent from the record.” Trial Court Opinion, 2/8/11, at 1. The “reasons ... from the record” cited by the trial court were the numerous violations testified to by Kelly's probation officer. See id. at 1–2 (listing violations including: (1) shooting Oxycontin; (2) snorting heroin; (3) being discharged from treatment for failure to comply with rules and regulations; (4) failing to report to probation officer and to allow officer to enter home; (5) new criminal charges for theft and receiving stolen property; (6) failure to appear; (7) fleeing and eluding police; and (8) abusing prescription drugs not prescribed to him). Finally, the trial court stated that it “took into consideration that [Kelly's] mental health needs can be adequately addressed through this sentence” because “if psychiatric issues are present, [Kelly] would need to be in the confined setting of the state correctional institution for a period of at least eighteen to thirty-six months in order to benefit from any mental health treatment which would be available to him in that setting.” Id. at 2.

We have previously stated that the mandate for the PSI

springs from the imperative of individualized sentencing; each person sentenced must receive a sentence fashioned to his or her individual needs. 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. Indeed, given the defendant's failure to respond to the original sanction of probation, the need for scrutiny of his character and underlying social influences is arguably enhanced, confirming the need of a current PSI report contoured to reflect the defendant's most recent offenses.

Flowers, 950 A.2d at 334.

The “essential and adequate” elements of a PSI are as follows:

(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 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.

Goggins, 748 A.2d at 728–29. In the absence of a PSI, the court must conduct a pre-sentence inquiry such that it is “apprised of the particular circumstances of the offense, not limited to those of record, as well as defendant's history and background.” Id. at 728.

Upon review of the transcript of the Gagnon II proceedings, we find that the trial court failed to satisfy the requirement of Rule 702 that it place on the record its reasons for dispensing with a PSI. Furthermore, the court neither ordered a PSI nor conducted a pre-sentence inquiry as required under Goggins, supra, in the absence of a PSI. The Gagnon II transcript is bereft of any information regarding the circumstances of Kelly's probation violations, his prior criminal record, his educational and employment background, his social and familial history, or his medical and psychiatric history. Although Kelly's counsel stated on the record that Kelly's family had expressed concerns regarding his mental health and requested a psychiatric evaluation, the court declined to obtain that information, instead leaving it to the prison system to sort out. Moreover, while Kelly's probation officer did testify as to his violations and addiction issues, those facts were placed on the record to establish Kelly's violations of probation and not as an aid to the court in individualizing its sentence to fit Kelly's needs. See Goggins, supra. In sum, the record shows that the trial court sentenced Kelly without obtaining even the most basic personal information necessary to enable it to craft a sentence...