Com. v. Smith, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MATTHEW LEE SMITH
Appellant No. 808 WDA 2016
Appeal from the Judgment of Sentence April 27, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002956-2015
BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 17, 2017
Appellant, Matthew Lee Smith, appeals from the judgment of sentence
of thirty-six to seventy-two months of incarceration, imposed April 27, 2016,
following his guilty plea to one count of robbery.1 We affirm.
In August 2015, Appellant robbed a Springfield Township bank. See
Notes of Testimony (N.T.), 3/9/16, at 10. On March 9, 2016, Appellant
entered a guilty plea to a single count of robbery. On April 27, 2016,
Appellant was sentenced to thirty-six to seventy-two months of
incarceration, to be served consecutive to his sentence at Criminal
Information No. CP-20-CR-0000551-2011 in Crawford County. Appellant
timely filed a post-sentence motion, which the court denied.
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1
18 Pa.C.S. § 3701(a)(1)(vi).
*
Former Justice specially assigned to the Superior Court.
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Appellant timely appealed and filed a court ordered statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court
issued a responsive opinion.
Appellant presents a single question for our review:
Was the sentence in this case manifestly excessive and clearly
unreasonable, as it was within the aggravated range, without
sufficient reason, and was not individualized as required by law,
especially in that the sentence did not properly take into account
the several mitigating factors present?
Appellant’s Brief at 1 (unnecessary capitalization omitted).
Appellant challenges the discretionary aspects of his sentence, a
challenge which does not entitle him to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Prior to addressing a
discretionary challenge, this Court engages in a four-part analysis: 1)
whether the appeal is timely; 2) whether Appellant preserved his issue; 3)
whether Appellant’s brief contains a concise statement of the reasons relied
upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether
that statement raises a substantial question that the sentence is
inappropriate under the sentencing code. See Commonwealth v. Austin,
66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).
Appellant timely filed a notice of appeal, preserved his claim in a post-
sentence motion, and included in his brief an appropriate Pa.R.A.P. 2119(f)
statement. We must now determine whether he has raised a substantial
question that the sentence is inappropriate under the sentencing code and, if
so, review the merits.
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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 where the Appellant advances a colorable
argument that the sentencing judge’s actions were either inconsistent with a
specific provision of the Sentencing Code, or contrary to the fundamental
norms which underlie the sentencing process. Commonwealth v. Sierra,
752 A.2d 910, 913 (Pa. Super. 2000). A claim that a sentence is manifestly
excessive many raise a substantial question if Appellant’s Pa.R.A.P. 2119(f)
statement sufficiently articulates the manner in which the sentence was
inconsistent with the Code or contrary to its norms. Commonwealth v.
Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).
In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the court’s
imposition of a sentence of thirty-six to seventy-two months of incarceration
was manifestly excessive and clearly unreasonable in that it was not
individualized and was within the aggravated range without sufficient reason
being expressed by the court. See Appellant’s Brief at 3. Appellant also
asserts that the court ignored several mitigating factors presented by
counsel at the time of sentencing. Id. at 4.
A claim that the court erred in imposing an aggravated range sentence
without consideration of mitigating circumstances raises a substantial
question. See Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.
Super. 2003) (en banc). Accordingly, we may consider the merits of
Appellant’s argument.
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Sentencing is a matter vested in the sound discretion of the
sentencing judge and a sentence will not be disturbed on appeal
absent an 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (internal
citation omitted). Pursuant to statute,
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). The trial court is required to consider the
sentencing guidelines. See Commonwealth v. Bonner, 135 A.3d 592, 604
(Pa. Super. 2016), appeal denied, 145 A.3d 161 (Pa. 2016).
Appellant was sentenced within the guidelines, although in the
aggravated range. Accordingly, we vacate only if Appellant’s sentence
involves circumstances where the application of the guidelines would be
clearly unreasonable. 42 Pa.C.S. § 9781(c)(2).
Appellant argues that the sentencing court ignored the mitigating
factors presented at the hearing, including 1) Appellant’s sincere remorse for
his conduct; 2) Appellant had cooperated with authorities, admitted his guilt
by confessing, and implicated a co-defendant who was subsequently
prosecuted; and 3) Appellant pleaded guilty. See Appellant’s Brief at 6.
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Further, Appellant argues the court relied upon impermissible factors such as
Appellant’s prior record score.
However, trial courts are permitted to “use prior conviction history and
other factors already included in the guidelines if[] they are used to
supplement other extraneous sentencing information.” Commonwealth v.
Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (citation omitted).
Further, our review of the record belies Appellant’s contentions.
At sentencing, Appellant argued that he felt sincere remorse for his
actions and that he felt terrible for traumatizing the victim. See N.T.,
4/27/16, at 8. He stated he was willing to take responsibility for his actions.
Id. at 9.
The sentencing court noted that it had read the presentence report,
sentencing guidelines, and victim impact statement. See, e.g.,
Commonwealth v. Fullin, 892 A.2d 843, 849–50 (Pa. Super. 2006) (noting
that where the sentencing judge has the benefit of a pre-sentence report it
is presumed he was aware of and weighted relevant mitigating statutory
factors); see also N.T., 4/27/16, at 12. The court recognized that Appellant
had chosen to plead guilty and had cooperated with investigators; however,
it also noted Appellant had been implicated by a co-defendant and had not
turned himself in. Id. The court specifically noted Appellant’s twenty-one
year long criminal history to explain its disbelief of Appellant’s expression of
remorse and the court’s need to protect the public. Id. The court also
noted that Appellant had been on state supervision at the time he committed
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the instant bank robbery. Id. In sum, the aggravating factors outweighed
the mitigating factors. Id. at 15.
Accordingly, based on the above, the sentencing court did not abuse
its discretion in imposing a sentence in the aggravated range. See Bonner,
961 A.2d at 190. The court appropriately explained its reasons for
sentencing Appellant and indicated it was aware of the applicable guidelines,
and accordingly, Appellant is not entitled to relief on this claim. See, e.g.,
Shugars, 895 A.2d at 1278-79.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
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