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[U] Commonwealth v. Simms

Superior Court of Pennsylvania

March 10, 2014

TOM O. SIMMS Appellant


Appeal from the Judgment of Sentence February 14, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0017270-2009




Tom O. Simms appeals from the judgment of sentence imposed by the Court of Common Pleas of Allegheny County after revoking his probation. After careful review, we vacate the judgment of sentence and remand for resentencing.

On March 10, 2011, Simms appeared before the trial court and entered a negotiated plea to one count of each of the following: indecent assault of a person less than thirteen years of age, [1] endangering the welfare of a child, [2] and corruption of minors[3] in relation to a series of sexual assaults on a young girl who was in the care of Simms' family, beginning when she was eleven-years-old and continuing over a six-year period. Without ordering apresentence investigation report ("PSI "), the court immediately sentenced Simms to an aggregate term of eighteen months' imprisonment and eight years of probation. Simms was also required to maintain Megan's Law/SORNA registration for ten years.[4]

On May 15, 2012 a Gagnonl [5] hearing on Simms' technical violations was held. Sim m s' technical violations included failure to: submit to drug and alcohol evaluation, submit to a mental health evaluation, submit to and pay for a polygraph test, enroll in court- ordered classes, and pay for electronic monitoring ("EM") supervision. A Gagnon II hearing took place on February 13, 2013, during which Simms requested a ninety-day continuance so that he could use his social security benefits to cover the necessary payments. The court denied this request, revoked Simms' probation, sentenced him to total confinement for thirty to sixty months, and increased his Megan's Law/ SORNA Registration from ten to twenty-five years.

After the trial judge imposed sentence, counsel promptly reminded the court of Simms' right to a PSI. The judge opted to forgo a PSI, explaining:

I'm going to say that I have a page of notes from the original plea date . . . I have the guidelines. I have a complete report from the probation office and I 'm going to take the chance that this will be enough, so I 'm not going to order the pre-sentence.

N.T. Gagnon II Hearing, 2/13/13, at 6. Accordingly, the judge dispensed with the PSI and imposed sentence.

Counsel timely filed a motion to reconsider sentence, which the court denied on March 5, 2013. This timely appeal followed.

Simms presents the following issues for our review:

1. Did the lower court act contrary to the fundamental fairness guaranteed by the Fourteenth Amendment to the United States Constitution by revoking Sim m s' probation for failure to pay the cost of supervision and rehabilitation, where Mr. Simms is indigent and there was no evidence that his failure to pay was willful?
2. Did the lower court abuse its discretion by revoking Sim m s' probation and sentencing him to a lengthy term of total confinement without first ordering a presentence investigation report or otherwise engaging in apresentence inquiry to apprise itself of the individual circum stances of his life?
3. Did the lower court abuse its discretion by imposing a manifestly excessive and unreasonable sentence following probation revocation for technical violations, where that sentence was based on false assumptions and improper considerations, rather than Sim m s' rehabilitative needs and the circum stances surrounding the violations?

Brief of Appellant, at 4. Simms' issues on appeal implicate the discretionary aspects of his sentence. Our standard of review is well settled.

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. Johnson, 967 A.2d 1001 (Pa. Super. 2009). An abuse of discretion requires the trial court to have acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Commonwealth v. W alls, 926 A.2d 957 (Pa. 2007). I t is also now accepted that in an appeal following the revocation of probation, it is within our scope of review to consider challenges to both the legality of the final sentence and the discretionary aspects of an appellant's sentence. Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).
We also note that there is no absolute right to appeal when challenging the discretionary aspects of a sentence. Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008). Appeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code. id. at 886. A substantial question is raised when the appellant 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. id.
When a challenge to the discretionary aspects of a sentence is raised, an appellant must provide a separate statement specifying where the sentence falls in the sentencing guidelines, what provision of the sentencing code has been violated, what fundamental norm the sentence violates, and the manner in which it violates the norm . See Pa.R.A.P. 2119(f). The imposition of a sentence of total confinement after the revocation of probation for a technical violation, and not a new criminal offense, implicates the "fundamental norms which underlie the sentencing process." Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

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

Simms included a Rule 2119(f) statement in his brief and advances a plausible argument that the revocation court violated the fundamental norms underlying the sentencing process when it imposed a sentence of total confinement for technical violations of probation. Sierra, supra. Hence, we review Simms' issues on their merits.

Upon review of the parties' briefs, the certified record, and the applicable statutory and case law, we conclude that the recovation court abused its discretion when it revoked Simms' probation and sentenced him to a sentence of total confinement without engaging in a pre-sentence inquiry. Such an inquiry would have provided information regarding Simms' prior criminal record, educational background, support network, age, health, mental status, and rehabilitative needs. See Commonwealth v. Martin, 351 A.2d 650, 658 (Pa. 1976) (specifying minimum content of PSI). Moreover, a pre-sentence inquiry would have provided insight into Simms' financial situation and enabled the court to make a determination whether Simms made a wilful choice not to pay the costs associated with his probation. See Commonwealth v. Eggers, 742 A.2d 174, 175 (Pa. Super. 1999) (court must inquire into reasons for probationer's failure to pay and make findings pertaining to willfulness of party's decision).

Indeed, this Court has expressly held that even where repeated probation violation hearings have rendered the sentencing judge substantially familiar with the defendant's criminal history, a PSI remains necessary. See Commonwealth v. Carter, 485 A.2d 802, 804 (Pa. Super. 1984) (vacating judgment of sentence based upon trial judge's failure to obtain PSI following second Gagnon revocation hearing).

The decision " [ w]hether to dispense with a pre-sentence investigation rests prim arily upon the exercise of . . . sound discretion by the trial court. The reasons for dispensing with a pre-sentence report, however, must be stated on the record and must be adequate to permit appellate review." Id. at 804 (quotation and citations omitted).

The purpose of a PSI is to fulfil the fundamental objective of our sentencing process that each person sentenced receives a sentence fashioned to his or her individual needs. See Commonwealth v. Flowers, 950 A.2d 330, 334 (Pa. Super. 2008). 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. In opting to forgo the PSI, the revocation court assumed the responsibility of conducting a "sufficient presentence inquiry such that, at a minimum, the court is apprised of the particular circum stances of the offense, not limited to those of record, as well as the defendant's history and background." Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000). "The first responsibility of the sentencing judge [ is] to be sure that [ she] ha[ s] before [ her] sufficient information to enable [ her] to make a determination of the circumstances of the offense and the character of the defendant." Goggins, 748 A.2d at 728; Carter, 485 A.2d at 804.

As previously mentioned, the judge dispensed with the PSI because she believed a page of notes from the original plea date, the sentencing guidelines, and a report from the probation office would be sufficient. We disagree, especially since the court did not order a PSI prior to Sim m s' initial sentencing. We also point out that the sentencing guidelines do not apply here because this is a sentence imposed following revocation of probation. 204 Pa. Code § 303.1 (b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006).

In opting to forgo the PSI, the revocation court assumed the responsibility of conducting a presentence inquiry sufficient to allow a fully inform ed sentencing decision. Goggins, supra. During the revocation hearing, the court told Sim m s:

You've been on probation with me for two years, and during that period of time, you've done virtually nothing right, in the court's eyes. You haven't paid, you haven't received drug and alcohol, you haven't MH/ MR, you denied the offense, and I might point out that this offense started with raping a victim at the ages of ten and eleven years old. The charges were subsequently dropped to lesser included charges.
You have done absolutely nothing right. You have never tried to be employed. You've not paid money toward the polygraph, and now you want me to give you yet more time to do it, and the court is not inclined to do so.

N.T. Gagnon II Hearing, 2/13/13, at 4. I n response, Simms explained the difficulties he faced obtaining employment as a registered sex offender. Simms also explained that he did not attend an alcohol evaluation because he does not drink and that he was waiting for his social security benefits to pay for the mental health evaluation. This limited colloquy, even when considered with the page of notes and the probation office report, does not constitute an effective substitute for a PSI . Therefore, the revocation court failed to conduct a presentence inquiry sufficient to appraise itself of the particular circumstances of Simms' technical violations as well as his history and background.

Accordingly, we conclude that the court's failure to order a PSI constituted an abuse of discretion in sentencing. Consequently, we vacate the judgment of sentence and remand this matter for re-sentencing based on a PSI or a comprehensive colloquy that offers the functional equivalent of the information a PSI report would otherwise provide. Because this abuse of discretion warrants vacating Simms' judgment of sentence, we decline review of Simms' other issues on appeal.

Judgment of sentence vacated. Case remanded for resentencing.

Judgment Entered.

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