Com. v. Smith, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RODNEY SMITH :
:
Appellant : No. 2526 EDA 2017
Appeal from the Judgment of Sentence Entered March 8, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007050-2011,
CP-51-CR-0007052-2011, CP-51-CR-0007060-2011
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 04, 2019
Rodney Smith appeals from the judgments of sentence entered after the
court vacated the sentences previously imposed on the above three docket
numbers. We affirm the judgment of sentence entered on March 8, 2017, on
docket number CP-51-CR-0007050-2011 (“7050”), as the trial court did not
abuse its discretion when sentencing Smith to ten to 20 years’ incarceration
for robbery and conspiracy. We vacate the judgments of sentence imposed on
March 8, 2017, on docket numbers CP-51-CR-0007052-2011 (“7052”) and
CP-51-CR-0007060-2011 (“7060”), because the trial court was without
jurisdiction to resentence Smith on those docket numbers.
The procedural history is as follows. In 2011, the Commonwealth
charged Smith in relation to two robberies committed over the course of four
days with the use of a stolen car. The trial court assigned three different
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docket numbers. Each of the robberies received a separate docket number
(7050 and 7060), as did the charge of receiving stolen property related to the
use of the stolen car (7052). Each docket also included related charges. The
three cases were consolidated for trial, and a jury convicted Smith of these
and related charges.1
The trial court sentenced Smith on September 20, 2012. It applied 42
Pa.C.S.A. § 9712 to the robbery convictions and imposed a five-to-ten-year
mandatory minimum sentence on each. The court ordered the sentences on
the three dockets to run concurrently, and imposed an aggregate sentence of
12 to 24 years’ incarceration.
Smith filed a notice of direct appeal that listed only docket number
7050; he did not file a direct appeal on docket numbers 7060 or 7052. This
Court affirmed on April 9, 2014, and Smith did not petition for allowance of
appeal. See Commonwealth v. Smith, 102 A.3d 525 (Pa.Super. 2014).
On March 26, 2015, Smith filed a pro se Post Conviction Relief Act
(“PCRA”) petition. His petition referenced only docket number 7050, the case
that he had directly appealed. The court appointed PCRA counsel, who filed
an Amended Petition that referenced all three docket numbers and alleged
that Smith’s mandatory minimum sentences had been rendered
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1 The convictions on docket number 7050 were for robbery and conspiracy;
those on docket number 7060 were for robbery, conspiracy, possessing an
instrument of crime, and carrying firearms on public streets in Philadelphia;
and the conviction on docket number 7052 was for receiving stolen property.
See 18 Pa.C.S.A. §§ 3701(A)(1)(ii) and 903, 907(a), 6108, and 3925(a).
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unconstitutional by Alleyne v. United States, 570 U.S. 99 (2013). The
Commonwealth responded by filing a letter, referencing only docket number
7050, stating the Commonwealth did not oppose resentencing. Without
explicitly granting or denying the Amended PCRA Petition, the court scheduled
resentencing on all three dockets.
At resentencing, on March 8, 2017, Smith’s attorney noted that he was
not Smith’s counsel of record on docket numbers 7060 and 7052, and
requested that the court appoint him as counsel on those cases. The court did
so, and the Commonwealth did not object. At the conclusion of the hearing,
the court resentenced Smith on all three cases. The court again ordered the
sentences to run concurrently, for a new aggregate sentence of ten to 20
years’ incarceration.
Five days later, on March 13, 2017, Smith filed what he styled as a
“Motion to Reconsider Sentence,” referencing all three docket numbers. The
motion argued that the court should reduce his sentence because it was
“unduly harsh and excessive.” Motion to Reconsider Sentence, at 4, ¶ 8. Four
months later, on July 12, 2017, the trial court issued an administrative order
denying Smith’s motion by operation of law. See Pa.R.Crim.P. 720(B)(3)(c).2
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2 See Pa.R.Crim.P. 720(B)(3)(c) (providing that when a post-sentence motion
is denied operation of law, the clerk of courts shall enter an order so stating);
see also Pa.R.Crim.P 720(B)(3)(a) (providing where trial court takes no
action on a post-sentence motion within 120 days, the motion shall be deemed
denied by operation of law).
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The order advised Smith that he had 30 days in which to file a notice of appeal.
Smith filed a notice of appeal within 30 days. The notice purported to appeal
from all three docket numbers.3
I. Timeliness of Appeal
The trial court suggests in its Pa.R.A.P. 1925(a) opinion that we quash
the appeal as untimely because Smith appealed more than 30 days after his
resentencing. See Trial Court Opinion, filed 2/12/18, at 2 (unpaginated). The
trial court asserts that Smith’s “Motion to Reconsider Sentence” did not extend
the time period for filing an appeal, because the court did not expressly grant
reconsideration. We disagree. Although Smith titled his motion as one seeking
“reconsideration,” it was in effect a motion to modify sentence that tolled the
appeal period.
Rule 720(B)(3)(a) of the Rules of Criminal Procedure provides that if
defendant files a timely post-sentence motion, the court must decide the
motion within 120 days, or the motion will be deemed denied by operation of
law. Pa.R.Crim.P. 720(B)(3)(a). In either case, once the motion is denied, the
defendant has 30 days to file a notice of appeal. Pa.R.Crim.P. 720(A)(2)(a)-
(b); see Commonwealth v. Perry, 820 A.2d 734, 735 (Pa.Super. 2003).
When the court expressly denies a timely post-sentence motion, the defendant
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3On June 1, 2018, our Supreme Court held that where there is an appeal of
more than one docket, separate notices of appeal must be filed for each case,
or the appeal will be quashed. Commonwealth v. Walker, 185 A.3d 969,
971 (Pa. 2018). However, we do not apply Walker to this case, as Smith
appealed prior to the Walker decision, which announced it would be applied
prospectively. Id. at 977.
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may then file a motion for reconsideration of the denial of the post-sentence
motion. See Pa.R.Crim.P. 720, comment. However, the court must decide the
motion for reconsideration within the same 120-day period applicable to post-
sentence motions. Id.
Here, Smith’s “Motion for Reconsideration of Sentence,” filed within ten
days of the resentencing hearing, was clearly a post-sentence motion
contemplated by Rule 720. Indeed, Rule 720(B)(1)(a)(v) explicitly permits a
post-sentence motion to modify sentence. As the motion was timely,4 the time
for filing a notice of appeal did not begin to run until after the court’s
disposition of the motion. The motion was denied by operation of law after
120 days, and Smith filed a notice of appeal within 30 days thereafter. His
appeal is therefore timely.
II. Trial Court’s Jurisdiction to Resentence Smith
on Docket Numbers 7060 and 7052
Next, we address the Commonwealth’s contention that the trial court
lacked jurisdiction to resentence Smith on docket numbers 7060 and 7052.
According to the Commonwealth, Smith’s PCRA Petition was untimely in
relation to those docket numbers, because Smith did not file a direct appeal
from his original judgment of sentence imposed on those dockets. Because
the Petition was untimely, the Commonwealth argues, the PCRA court lacked
jurisdiction to grant relief on those docket numbers, and the trial court
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4 A written post-sentence motion must be filed within ten days of the
imposition of sentence. Pa.R.Crim.P. 720(A)(1).
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consequently lacked jurisdiction to resentence Smith. The Commonwealth
requests that we vacate all three judgments of sentence entered on March 8,
2017, and remand docket number 7050 for a third sentencing by the trial
court, as vacating sentence on the other two dockets will upset the trial court’s
sentencing scheme. Smith has not filed a reply brief addressing the
Commonwealth’s argument.
The timeliness of a PCRA petition is a jurisdictional prerequisite, and a
PCRA court is accordingly “precluded from considering untimely PCRA
petitions.” Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003).
Even a claim that the trial court imposed an unconstitutional mandatory
minimum sentence must be raised within a timely PCRA petition.
Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa.Super. 2015). This threshold
question of the timeliness of the petition implicates this Court’s subject matter
jurisdiction over the appeal as well. Whitney, 817 A.2d at 478. The issue of
jurisdiction cannot be waived by the parties’ failure to address it before the
PCRA or trial court. See Commonwealth v. Concordia, 97 A.3d 366, 371
(Pa.Super. 2014); Commonwealth v. Salley, 957 A.2d 320, 325 (Pa.Super.
2008).
Here, the trial court initially sentenced Smith on all three docket
numbers on September 20, 2012. Smith did not appeal the judgments of
sentence imposed on docket numbers 7060 and 7052. Thus, the judgments
of sentence on those two docket numbers became final thirty days after
sentencing, on October 20, 2012, when the time period for seeking direct
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review expired. 42 Pa.C.S.A § 9545(b)(3); Pa.R.A.P. 903(a). Smith had one
year, until October 20, 2013, to file a PCRA petition, unless an exception to
the one year time-bar applied. 42 Pa.C.S.A. § 9545(b)(1). Smith has not
argued that any exception applies to his petition, and thus his petition, filed
on March 26, 2015, was untimely in relation to docket numbers 7060 and
7052.5
As Smith did not file a timely PCRA petition requesting relief on docket
numbers 7060 and 7052, the PCRA court was without jurisdiction to disturb
judgment, and the trial court without jurisdiction to resentence. We therefore
direct the trial court to vacate the sentences imposed on March 8, 2017, on
docket numbers 7060 and 7052.
Vacating the March 8, 2017 judgment of sentence on docket numbers
7060 and 7052 does not require that we remand for resentencing on docket
number 7050. Although a court may vacate all interdependent sentences
when one of the sentences is illegal, even where the sentences flow from
convictions charged on different bills of information, see Commonwealth v.
Bartrug, 732 A.2d 1287, 1289-90 (Pa.Super. 1999), when an appellate court
vacates one of several concurrent sentences, it does not upset a sentencing
scheme and require remand for resentencing. See Commonwealth v.
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5 We note that Smith did not refer to docket numbers 7060 and 7052 in his
pro se petition; and, his Amended petition, which did request relief on those
docket numbers, was filed even later.
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Robinson, 817 A.2d 1153, 1163 n.14 (2003). Here, the trial court ordered
the sentences on Smith’s three docket numbers to run concurrently, and
therefore our vacating two of the three sentences has not upset a sentencing
scheme.6
III. Sentence Imposed on Docket Number 7050
Smith raises a single issue in his appeal from the judgment of sentence
imposed on docket number 7050: “Whether the lower court abused its
discretion in denying [Smith]’s Motion for Reconsideration of Sentence?”
Smith’s Br. at 8.
As Smith challenges the discretionary aspects of his sentence, we must
first determine whether we will allow the appeal. Commonwealth v.
Heaster, 171 A.3d 268, 271 (Pa.Super. 2017), appeal denied, 181 A.3d 1078(Pa. 2018). We will only do so if: (1) the appeal is timely; (2) the issue was
preserved; (3) the brief includes a Pa.R.A.P. 2119(f) statement; and (4) the
statement raises a “substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.” Id. at 271-72 (citing
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010)).
Smith’s appeal is timely, he preserved the issue in a post-sentence
motion, and his brief includes a concise statement of the reasons why we
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6 Similarly, although the PCRA court properly vacated the initial sentence on
docket number 7050 following the PCRA petition, this act did not imbue the
trial court with jurisdiction to resentence on docket numbers 7060 and 7052,
as the sentences imposed at the initial sentencing were concurrent, and
vacating one sentence did not disturb an interdependent scheme.
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should allow the appeal. In his Rule 2119(f) statement, Smith argues that his
sentence “was so manifestly excessive as to constitute too severe a
punishment,” and that the court “did not adequately examine and investigate
[his] background, character, and rehabilitative needs” and “only made a
cursory mention of mitigating factors” such as his potential for rehabilitation
and his mental health. Smith’s Br. at 17. We have previously held a “claim
that the court erred by 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).7 We therefore grant allowance of appeal and consider whether Smith’s
argument merits relief.
We will not disturb the trial court’s sentence absent an abuse of
discretion. White, 193 A.3d at 984 (citing Commonwealth v. Malovich, 903
A.2d 1247, 1252-53 (Pa.Super. 2006)). When a sentence falls within the
sentencing guidelines, we will vacate the sentence only when “the case
involves circumstances where the application of the guidelines would be
clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2); Commonwealth v.
Swope, 123 A.3d 333, 340 (Pa.Super. 2015).
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7 We note that “prior decisions from this Court involving whether a substantial
question has been raised by claims that the sentencing court ‘failed to
consider’ or ‘failed to adequately consider’ sentencing factors has been less
than a model of clarity and consistency.” Commonwealth v. White, 193
A.3d 977, 983 (Pa.Super. 2018) (quoting Commonwealth v. Caldwell, 117
A.3d 763, 769-70 (Pa.Super. 2015) (en banc)).
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A trial court need not expound upon its sentencing philosophy in a
lengthy discourse. See Commonwealth v. Malovich, 903 A.2d 1247, 1253
(Pa.Super. 2006) (quoting Commonwealth v. McAfee, 849 A.2d 270, 275
(Pa.Super. 2004)). Rather, the record as a whole must reflect the court gave
meaningful consideration to both the character of the defendant and facts of
the crime. Id. (citation omitted).
Smith argues that the court gave short shrift to his capacity for
rehabilitation and his rehabilitative needs. Smith’s Br. at 22. Smith asserts
that he testified that he has changed his outlook on life since being
incarcerated. Id. Smith also asserts that he raised in his motion for
reconsideration that he presented evidence at his original sentencing that
domestic violence in his childhood home traumatized him; he suffers from
ADHD, and is not properly treated while incarcerated; and he only gets into
trouble when he is not taking medication. Id. Smith argues the sentencing
transcript does not reflect that the trial court considered these factors. Id.We disagree. At Smith’s resentencing, he testified that he has a
supportive family and a daughter; during the six years he has spent
incarcerated, he has furthered his education, and has career aspirations in
real estate; both of his parents have passed away since he became
incarcerated; he has grown more patient during his time in prison; he regrets
committing the instant crimes, which he committed when he was 19 years
old; and he is incentivized not to spend the rest of his life incarcerated. N.T.,
3/8/17, at 14-19, 24-25. Smith’s sister also testified that Smith has become
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“more humble” since becoming incarcerated. Id. at 11-12. The
Commonwealth proposed that the court re-impose the same sentence on each
charge, noting that the previously mandated minimum sentence of five to ten
years’ incarceration for robbery fell within the aggravated range of the
sentencing guidelines.8
At the conclusion of the hearing, the trial court resentenced Smith on all
three dockets. Before imposing sentence, the court stated the following:
The Court has had an opportunity to review the information
provided, heard the argument, still has the benefit of the pre-
sentence report and had a chance to hear from [Smith] and [a]
family member of [Smith], and, first, to Mr. Smith, I am sorry for
your losses. The Court takes into consideration that [Smith] has
completed his high school, gotten his high school diploma, also
completed the Money Smart program. The court also cannot
forget the gravity of the offenses and the need for rehabilitation.
It seems like you are on the right track for rehabilitation[.]
Id. at 27. On docket number 7050, the court re-imposed the original
sentence—five to ten years’ imprisonment for robbery, with a consecutive
term of five to ten years’ imprisonment for conspiracy, for an aggregate of ten
to 20 years’ imprisonment.
The record therefore reflects that the court carefully considered Smith’s
capacity and need for rehabilitation. The court was well apprised of Smith’s
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8 The parties agreed that the prior record score was zero, the offense gravity
score for robbery was ten, and that with the deadly-weapon enhancement,
the standard Guidelines range for both the robbery and conspiracy convictions
was 40 to 54 months minimum incarceration, increased or reduced by 12
months in the aggravated and mitigated ranges. See N.T. at 4-5, 8-11, 25-
26; 204 Pa.Code § 303.17(b).
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character, history, and prospects, as well as the gravity of the crimes Smith
committed. The court found that Smith was “on the right track for
rehabilitation,” and re-imposed the original sentence, which fell within the
aggravated Guidelines range. N.T. at 27.
Although the court did not specifically mention Smith’s ADHD or mental
health, Smith did not specifically argue those facts at his resentencing
hearing—instead, Smith waited to raise those issues in his post-sentence
motion, which was denied by operation of law. Nonetheless, we presume the
court considered those facts, as it had both reviewed the pre-sentence report
and presided at the original sentencing hearing where Smith had highlighted
his mental health status. See Commonwealth v. Johnson, 125 A.3d 822,
827 (Pa.Super. 2015).
Smith makes no separate argument that his consecutive sentences were
excessive given the criminal conduct at issue. See Commonwealth v.
Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010). However, we do not find
the imposition of two consecutive five- to ten-year sentences for robbery and
conspiracy to be excessive under the facts of this case. At Smith’s
resentencing, the Commonwealth argued that “within a four-day span,
[Smith] robbed two people by gunpoint [and] assaulted one person with th[e]
gun.” N.T. at 7.
Ultimately, the record does not reflect an abuse of discretion or that the
application of the sentencing guidelines was clearly erroneous. We therefore
affirm the judgment of sentence on docket number 7050.
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Judgment of sentence on docket number CP-51-CR-0007050-2011
affirmed. Order of March 8, 2017, imposing sentence on docket numbers CP-
51-CR-0007052-2011 and CP-51-CR-0007060-2011 vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/19
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