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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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