J-S03025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STEPHEN J. HAAG

Appellant No. 1610 EDA 2014

Appeal from the Judgment of Sentence April 8, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001469-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2015

Appellant, Stephen J. Haag, appeals from the judgment of sentence 

entered following his guilty plea to one count of possession of drug 

paraphernalia and one count of possession of a small amount of marijuana. 

Haag contends that the sentence imposed by the trial court is excessive, and 

violates his right against cruel and unusual punishment. After careful 

review, we affirm.

In May 2013, Pocono Mountain Regional Police (“PMRP”) received a tip 

from a confidential informant that Haag, a convicted felon, was in possession 

of a firearm. A check of departmental records revealed that on April 9, 

2013, during a burglary investigation, a PMRP officer had observed a gun in 

plain view in the bedroom Haag shared with his ex-wife, Carla Dekis. 
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Further investigation revealed that a handgun matching the description of 

the one seen during the burglary investigation was registered to Dekis. 

PMRP officers obtained a search warrant for the house shared by Haag 

and Dekis. Officers found the gun in the bottom drawer of a dresser in the 

bedroom. Officers also found two clear baggies containing small amounts of 

marijuana as well as assorted pipes containing marijuana residue, as well as 

a grinder. 

Haag was charged with possession of a small amount of marijuana, 

possession of drug paraphernalia, and felony possession of a firearm by a 

disqualified person. Haag filed motions seeking a finding of diminished 

mental capacity, or in the alternative, a jury instruction regarding guilty but 

mentally ill. The trial court denied both motions, and on February 3, 2014, 

Haag pled guilty to the drug-related charges; the firearm charge was 

dropped. 

Haag was subsequently sentenced to 6 to 12 months’ imprisonment on 

the paraphernalia charge, and a concurrent sentence of 15 to 30 days on the 

marijuana charge. Haag filed post-sentence motions, which the trial court 

denied. This timely appeal followed.

On appeal, Haag raises two issues for our review. First, Haag argues 

that the trial court abused its discretion in imposing a sentence in the 

aggravated range of the sentencing guidelines. Haag concedes that this 

claim raises a challenge to the discretionary aspects of the sentence 
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imposed. See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa. 

Super. 2007).

“A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to pursue such a 

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. 

Super. 2004) (citation omitted). When challenging the discretionary aspects 

of the sentence imposed, an appellant must present a substantial question 

as to the inappropriateness of the sentence. See Commonwealth v. 

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be 

met before we will review this challenge on its merits.” McAfee, 849 A.2d 

at 274. “First, an appellant must set forth in his brief a concise statement of 

the reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of a sentence.” Id. 

“Second, the appellant must show that there is a substantial question 

that the sentence imposed is not appropriate under the Sentencing Code.” 

Id. That is, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at 

365. We examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists. See id. “Our inquiry must focus on 

the reasons for which the appeal is sought, in contrast to the facts
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underlying the appeal, which are necessary only to decide the appeal on the 

merits.” Id.

In the present case, Haag filed post-sentence motions challenging his 

sentence and his appellate brief contains the requisite Rule 2119(f) concise 

statement, and, as such, is in technical compliance with the requirements to 

challenge the discretionary aspects of his sentence. Haag argues in his Rule 

2119(f) statement that the trial court, in imposing sentence, “focused 

primarily on the defendant’s use of marijuana and the weapons offense 

charged but to which he did not plead.” Appellant’s Brief at 7. Even 

assuming that this claim raises a substantial question, Haag is due no relief.

Our standard when reviewing sentencing matters is as follows.

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014) 

(en banc) (citation omitted).

A sentencing court may consider uncharged criminal conduct of the 

defendant. See Commonwealth v. Shugars, 895 A.2d 1270, 1278 (Pa. 

Super. 2006). Thus, to the extent, if any, that the trial court relied upon 

Haag’s possession of a firearm in imposing sentence, such reliance was 

permissible. Furthermore, the sentencing court is presumed to have 
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considered all relevant aspects of a defendant’s character when a presentence report is available, as was the case here. See Commonwealth v. 

Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing Commonwealth v. 

Devers, 546 A.2d 12, 18 (Pa. 1988)). Finally, our review of the sentencing 

transcript reveals that the sentencing court was primarily concerned with 

Haag’s admission that he did not want to quit his marijuana use. See N.T., 

Sentencing, 4/8/14, at 8. We cannot conclude that the sentencing court’s 

consideration of this circumstance, which reveals a low probability for 

rehabilitative success and Haag’s lack of remorse for committing the crime, 

constitutes an abuse of discretion. Therefore, no relief is due on this issue.

In his second and final issue, Haag contends that the sentencing court 

violated his rights by failing to hold a hearing on his claim of cruel and 

unusual punishment. We note that, despite the presence of this claim in 

Haag’s statement of issues on appeal, the sentencing court has not 

addressed this issue. We are therefore without the benefit of the reasoning 

supporting this decision.

However, we need not remand for the preparation of an opinion by the 

sentencing court, as a review of Haag’s motion for reconsideration of his 

sentence merely alleged generally that the county prison was incapable of 

administering necessary treatments. The motion did not specifically identify 

any treatments that are (a) necessary for Haag’s health, and (b) unavailable 

in the county prison. We therefore conclude that the motion did not set 
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forth a colorable claim that Haag’s right against cruel and unusual 

punishment was at issue. See Commonwealth v. Carr, 543 A.2d 1232, 

1235 (Pa. Super. 1988) (claim that prison’s mental health treatments were 

inadequate did not raise a claim that defendant’s right against cruel and 

unusual punishment had been violated). Thus, no hearing was necessary, 

and Haag is due no relief on this issue.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015