Com. v. Smith, Z. ( 2019 )

J-S20044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ZACHARY EVAN SMITH :
:
Appellant : No. 17 WDA 2019
Appeal from the Judgment of Sentence Entered July 19, 2017
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000402-2016
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 29, 2019
Appellant, Zachary Evan Smith, appeals nunc pro tunc from the
judgment of sentence entered in the Jefferson County Court of Common Pleas,
following his jury trial convictions for possession with intent to deliver
(“PWID”) and possession of a controlled substance, and his bench trial
convictions for disregarding traffic lanes and speeding.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
January 17, 2016, Appellant crashed his vehicle on Interstate 80. Emergency
responders noticed footprints in the snow from the car to the woods and told
police this information when they arrived. Police followed the footprints and
found a backpack that contained cocaine sitting behind a tree. Police
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1 35 P.S. §§ 780-113(a)(30), (a)(16); 75 Pa.C.S.A. §§ 3309(1), 3361,
respectively.
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connected Appellant to the backpack. The Commonwealth charged Appellant
with PWID and other offenses related to the incident. On November 9, 2016,
Appellant filed a motion to suppress the backpack. The court denied the
suppression motion on February 2, 2017. On June 20, 2017, a jury convicted
Appellant of PWID and possession of a controlled substance; and the court
convicted Appellant of the traffic offenses. The court sentenced Appellant with
the benefit of a Presentence Investigation (“PSI”) Report on July 19, 2017, to
an aggregate term of 54 months’ to 10 years’ imprisonment. Appellant timely
filed a post-sentence motion on Monday, July 31, 2017. The court denied the
post-sentence motion on August 8, 2017.
On October 20, 2017, Appellant timely filed pro se a petition pursuant
to the Post-Conviction Relief Act (“PCRA”),2 which requested reinstatement of
his direct appeal rights nunc pro tunc. The PCRA court appointed counsel on
November 1, 2017, and held a hearing on May 29, 2018. On September 6,
2018, the PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc.
Appellant timely filed a direct appeal nunc pro tunc on September 19, 2018.
On September 21, 2018, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely filed a Rule 1925(b) statement on September 24, 2018.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION IN
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2 42 Pa.C.S.A. §§ 9541-9546.
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ENTERING ITS JULY 19, 2017 SENTENCING ORDER IN THE
WITHIN CASE?
(Appellant’s Brief at 3).
Appellant argues the court imposed a blanket sentence based on his
convictions and did not consider the particular facts and circumstances of his
case. Appellant submits the court’s lack of meaningful consideration of
Appellant’s situation resulted in an unreasonable sentence. As presented,
Appellant challenges the discretionary aspects of his sentence. See
Commonwealth v. Mola, 838 A.2d 791 (Pa.Super. 2003) (stating claim that
court imposed blanket sentence challenges discretionary aspects of
sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super.
1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that
sentencing court failed to consider or did not adequately consider certain
factors implicates discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial question
as to the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the reasons
relied upon for allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks
omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
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process.” Sierra, supra at 912-13. A claim that a sentence is manifestly
excessive might raise a substantial question if the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence imposed
violates a specific provision of the Sentencing Code or the norms underlying
the sentencing process. Mouzon, supra at 435, 812 A.2d at 627. Generally,
“[a]n allegation that a sentencing court failed to consider or did not adequately
consider certain factors does not raise a substantial question that the sentence
was inappropriate.” Cruz-Centeno, supra at 545 (internal quotation marks
omitted). A claim that the court imposed a blanket sentencing policy does
raise a substantial question of whether the sentence violates the Sentencing
Code. Mola, supra at 793.
Instantly, Appellant properly preserved his discretionary aspects of
sentencing claim in his post-sentence motion and Rule 2119(f) statement.
See Evans, supra. Appellant’s Rule 2119(f) statement articulated his claim
regarding the court’s alleged use of a blanket policy for drug dealers, which
arguably raises a substantial question for our review. See Mola, supra.Our standard of review concerning the discretionary aspects of
sentencing 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
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partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005).
Pursuant to Section 9721(b), “the court shall follow the general principle
that the sentence imposed should call for confinement that is consistent with
the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as
part of the record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.” Id. The record
as a whole must reflect the sentencing court’s consideration of the facts of the
case and the defendant’s character. Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475(2010). “In particular, the court should refer to the defendant’s prior criminal
record, his age, personal characteristics and his potential for rehabilitation.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied,
582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct.
2984, 162 L.Ed.2d 902 (2005).
Here, the trial court had the benefit of a PSI report at sentencing and
stated its reasons for Appellant’s sentence on the record. Therefore, we can
presume the court considered the relevant facts when sentencing Appellant.
See Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating
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where sentencing court had benefit of PSI, law presumes court was aware of
and weighed relevant information regarding defendant’s character and
mitigating factors).
The trial court addressed Appellant’s discretionary aspects of sentencing
claim as follows:
Here it is unnecessary to make a presumption based on the
existence of a [PSI], because the record clearly reflects that
the [c]ourt did in fact consider [Appellant] as an individual,
not merely as a statistic to be included in a “blanket
sentencing policy” regarding a specified class of drug
offenders.
In possession of [Appellant’s PSI] report and having
presided at his omnibus hearing and trial, the [c]ourt was
well aware of his personal circumstances and acknowledged
a variety of his characteristics and behaviors as inherently
positive. [The court] was not sentencing [Appellant] in a
vacuum, though; it was sentencing him for committing a
crime that, in light of those circumstances and
characteristics, could only be explained as a crime
motivated by greed. In that regard, [the court] was acutely
aware that [Appellant] did not fit the typical drug-dealer
mold─that he was not an addict trying to feed his addiction
or a young man with an unfortunate upbringing and limited
opportunities who viewed the drug trade as his best chance
for success. And it was [Appellant’s] individual
circumstances; it was the fact that he was a “good kid”
without a reasonable excuse for getting involved in the drug
trade; it was the deliberative nature of a young man not
driven by addiction facilitating the sale of a substantial
quantity of crack cocaine that informed the [c]ourt’s
sentencing decision. Speaking directly to [Appellant] before
announcing the sentence, [the court] clearly stated as
much.
[Appellant] plainly does not agree that the circumstances
warranted a 4½ year minimum. [Appellant] thinks his
essentially untainted history entitled him to a lesser
sentence and is effectively asking the Superior Court to
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reassess the circumstances and weigh in his favor factors
this [c]ourt already deemed to be aggravating. To that end,
[Appellant] couches his request in appropriate legal terms,
alleging that the [c]ourt imposed a “blanket sentencing
policy” that overlooked him as an individual. The record
says differently, though, as the record reflects an
individualized sentence in which the [c]ourt took account of
and conscientiously weighed the relevant sentencing
factors. As such, [the record] reflects a sentence that was
not unreasonable and should be affirmed as an appropriate
exercise of the [c]ourt’s sentencing discretion.
(Trial Court Opinion, filed September 25, 2018, at 1-2) (internal citations
omitted). The record supports the trial court’s rationale. See Crump, supra;Hyland, supra. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2019
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