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Commonwealth of Pennsylvania v. Felix Carrillo-Diaz

April 9, 2013

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
FELIX CARRILLO-DIAZ, APPELLANT



Appeal from the Judgment of Sentence February 16, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004045-2009

The opinion of the court was delivered by: Stevens, P.J.

BEFORE: STEVENS, P.J., WECHT, J., and COLVILLE, J.*fn1

OPINION BY STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following the revocation of Appellant's probation. We affirm.

The relevant facts and procedural history have been aptly set forth by the trial court, in part, as follows:

From June to September 2008, Appellant was engaged in a...sexual relationship with [M.S.]. At that time, Appellant was thirty-three [years old] and [M.S.] was fourteen [years old]. During the course of their relationship, Appellant and [M.S.] engaged in vaginal and oral sex approximately twenty times.

On June 24, 2010, Appellant pled no contest to Statutory Sexual Assault. After waiving presentence investigation and mental health reports, he was sentenced to a term of nine to twenty-nine months incarceration followed by five years of reporting probation supervised by the Sex Offender Unit. Appellant was ordered to have no unsupervised contact with any children under the age of eighteen except for his own children, to stay away [from] [M.S.], to gain employment, and to perform twenty hours of community service. The Court advised Appellant that if he violated his probation or parole, he would receive a state sentence.

Appellant appeared before the Court on February 16, 2012, for a probation violation hearing. He had tested positive for marijuana on 8/16/2011 and 9/16/2011. In addition, since beginning treatment for sex offenders on 12/14/2011, Appellant missed three consecutive sessions on 12/21/2011, 12/28/2011, and 1/4/2012, causing him to be discharged for noncompliance. At the violation of probation hearing, the Court thoroughly questioned Appellant's probation officer regarding Appellant's employment, response to treatment, and overall conduct. It became evident in light of information from his previous employer (via phone) and from a doctor at the treatment facility (via an email from the doctor to the probation officer) that Appellant misled the Court regarding his employment and his attendance at treatment: contrary to his assertions that he missed treatment sessions because he arrived there from work too late to be admitted, in actuality he had stopped showing up for work by that time and never arrived at the treatment facility. The Court found Appellant to be in violation of the terms of his probation, revoked his probation and sentenced him to one to two years state incarceration, followed by six years of reporting probation.

Trial Court Opinion filed 8/14/12 at 1-2 (citations to record omitted).

On March 5, 2012, Appellant filed a motion seeking to file a post- sentence motion nunc pro tunc and presenting various discretionary aspects of sentencing claims. By order filed on March 6, 2012, the trial court permitted Appellant to file his post-sentence motion nunc pro tunc*fn2 but denied the motion. This timely appeal followed on March 16, 2012, and all Pa.R.A.P. 1925 requirements have been met.

On appeal, Appellant's sole contention is the lower court erred when it imposed a sentence without ordering a pre-sentence investigation report, or in the alternative, failing to give a reason on the record for not ordering such a report.

This issue presents a challenge to the discretionary aspects of Appellant's sentence. See Commonwealth v. Flowers, 950 A.2d 330 (Pa.Super. 2008). Thus:

Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant'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 sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006) (citations omitted).*fn3

Here, Appellant filed a timely notice of appeal, and pursuant to the trial court's discretion, preserved his sentencing claim in a nunc pro tunc motion for reconsideration of sentence. See Malovich, supra. In addition, Appellant has included in his brief a separate statement of reasons for allowance of appeal. Id. Moreover, we conclude Appellant's claim presents a substantial question permitting our review. See Commonwealth v. Kelly, 33 A.3d 638 (Pa.Super. 2011); Flowers, supra.

The Pennsylvania Rules of Criminal Procedure vest a sentencing judge with the discretion to order a pre-sentence investigation (PSI) as an aid in imposing an individualized sentence. Specifically, ...


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