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[U] Commonwealth v. Simms

Superior Court of Pennsylvania

March 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TOM O. SIMMS Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM

LAZARUS, J.

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 ...

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