Com. v. Smith, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEMETRIUS SMITH
Appellant : No. 2969 EDA 2017
Appeal from the Judgment of Sentence August 24, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006929-2013
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 12, 2019
Demetrius Smith appeals from the judgment of sentence entered
following the revocation of his probation. He argues the court abused its
discretion and imposed an excessive sentence. We affirm.
In March 2014, Smith entered a negotiated guilty plea to one count of
receiving stolen property, 18 Pa.C.S.A. § 3925(a) ("2014 conviction"). The
trial court sentenced him pursuant to the negotiated plea to time served to 23
month's incarceration and two years' probation.
In February 2017, Smith was arrested and charged with possession with
intent to deliver a controlled substance ("PWID"), 35 P.S. § 780-113(a)(30),
carrying a firearm without a license, 18 Pa.C.S.A. § 6106, carrying a firearm
in public in Philadelphia, 18 Pa.C.S.A. § 6108, possession of a controlled
substance, 35 Pa.C.S.A. § 780-113(a)(30), and possession of drug
paraphernalia, 18 Pa.C.S.A. § 780-113(a)(32) (collectively "2017 charges").
Former Justice specially assigned to the Superior Court.
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The court held a Daisey Kates' hearing, where a police officer testified
to the facts underlying the 2017 charges, including that empty marijuana
containers, a bag filled with marijuana, and a handgun were found in a car
driven by and registered to Smith. The trial court revoked Smith's probation
for the 2014 conviction. Later, in August 2017, the trial court sentenced him
to four to eight years' imprisonment.
Prior to sentencing, the trial court received a pre -sentence investigation
report ("PSI"). At sentencing, Smith argued that he had been compliant with
probation and noted that he had been "told mistakenly by probation that he
no longer needed to report," and noted that they "clarified the whole
situation." N.T., 8/17/17, at 6-7. He argued that he was still on probation, but
they would not have made such a mistake if he had been noncompliant with
supervision. Id. at 7. He further pointed out that he had a difficult childhood,
and that he had young children, for whom he wanted to be present, and that
he had employment. Smith presented the testimony of the owner of a
company for whom he worked, who said he would be willing to hire Smith if
the court granted Smith work release. N.T. 8/24/17, at 12. In addition, the
mother of his child testified on Smith's behalf. Id. at 18-20.
The trial court stated:
Well, I've listened to everybody. Okay. And I have reviewed
the [PSI] as well as your criminal history and the nature of
1 Commonwealth v. Kates, 305 A.2d 701, 708-09 (Pa. 1973) (trial court
may conduct probation/parole revocation proceedings before conclusion of
trial based on charges leading to revocation claim).
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the violation that was brought forth before me. I am
extremely concerned about the safety of this community
with you in it based upon, particularly, the facts of the
incident that was brought before me that violated the terms
of your supervision. I was also concerned by the fact that
this is not your first go -around.
All right. I find that the factors under Section 9714 have
been amply met. The most important factor that I have
before me is the fact that I consider you to be prone to
commit criminal offenses in the future and constant[ly] a
danger to the community.
I note that unlikea lot of folks that come before me, Mr.
Smith, your mom, who raised you, worked extremely hard
to help keep you on the right side of the law. You went in
completely the opposite direction.
But you did bad things. And my view of you is that you are
going to continue to do that, because when you were
assigned to my probation and parole you - the
Commonwealth negotiated a considerable break for you.
With that, however, I told you straightforward what would
happen if you came back before me. I know I did. And this
is not an oops type of infraction of my probation.
The circumstances of this new arrest and information given
to this Court through the Daisey Kates hearing tells me
that indeed you didn't listen to one word iota, and you're a
man who is supposed to be a good father. Your actions
dictate otherwise.
I'm not saying you're a bad person. I'm saying you did bad
things, and I think you're going to continue to do so. And I
think you disrespected the Court in every way, shape and
form with this offense, and I do believe that the structure
that I'm imposing and will impose is required to get through
to you and protect our community.
Confinement is necessary with you. Since county didn't
work, it'll be through the state, and it will have encompassed
therein very strict conditions. So to the single charge of
receiving stolen property, felony of the second-degree, the
sentence of this Court is that you serve a minimum of four
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years state time incarceration to the maximum eight years
state time incarceration. I do not recommend release at the
minimum.
N.T., 8/24/17, at 22-24.
Smith filed a Petition for Reconsideration of VOP Sentence, which the
trial court denied.
Smith filed a timely Notice of Appeal. Smith filed a "Motion to Proceed
Pro Se On Appeal" and a "Motion To Remov[e] Counsel." This Court remanded
to the trial court for a hearing pursuant to Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998). The trial court held a hearing, where Smith withdrew his
requests for removal of counsel and to proceed pro se.
Smith raises the following issue on appeal: "Was the trial court's
violation of probation sentencing inappropriate, manifestly excessive and an
abuse of discretion under the circumstances?" Smith's Br. at 5 (unnecessary
capitalization at 5).
Smith argues the court did not fully investigate his background or review
the PSI. He further argues that the sentence was unduly harsh because it was
the maximum sentence, it was Smith's first probation violation and he had a
"stellar" record of compliance. Smith's Br. at 14. He also cites his belief that
his probation period had ended, and notes that the new charges had not been
resolved. He adds that "the trial court sentenced [Smith] to the maximum
allowed by law without designating RRRI and stating that he should not be
released at his minimum." Smith's Br. at 14. Smith claims the court failed to
explore other options before sentencing him to the maximum sentence and
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that it was improper to discuss the facts of the new arrest without calling the
police officer as a witness.
Smith challenges the discretionary aspects of his sentence. Thus, we
begin by noting "a [c]hallenge to the discretionary aspects of a sentence is
not appealable as of right." Commonwealth v. Green, 204 A.3d 469, 488
(Pa.Super. 2019). Before reviewing the merits of his claim, we must determine
whether: (1) the appeal is timely; (2) the appellant preserved the issue at
sentencing or in a post -sentence motion; (3) the brief includes a concise
statement of the reasons relied upon for allowance of appeal and (4) a
substantial question is presented. See id.
Here, Smith's appeal is timely, he preserved his issue in a post -sentence
motion, and he provides a concise statement of reasons relied upon for appeal.
Specifically, he contends that his VOP sentence was manifestly excessive and
the court failed to consider his individual circumstances, including his "stellar"
record of compliance, and claims the new charges did not warrant imposition
of the allegedly excessive sentence. Such a claim raises a substantial question.
See Commonwealth v. Williams, 69 A.3d 735, 740 (Pa.Super. 2013)
(finding claim that "court imposed a sentence unreasonably disproportionate
to her crimes and unduly excessive" raised substantial question). Therefore,
we now proceed to a review of the merits of Smith's claims.
We review a challenge to the discretionary aspects of sentencing for an
abuse of discretion. Commonwealth v. Bullock, 170 A.3d 1109, 1123
(Pa.Super. 2017). An abuse of discretion occurs where "the sentencing court
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ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill -will, or arrived at a manifestly unreasonable decision."
Id. (quoting Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super.
2003)).
Pursuant to Pennsylvania statute 42 Pa.C.S.A. § 9771(b), upon
revocation of probation, "the sentencing alternatives available to the court
shall be the same as were available at the time of initial sentencing." Further,
a VOP court may impose a sentence of total confinement if it finds that "(1)
the defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned; or (3) such a sentence is essential to vindicate the authority
of the court." 42 Pa.C.S.A. § 9771(c).
"[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 record as a whole must reflect the sentencing court's
consideration of the facts of the crime and character of the offender."
Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa.Super. 2012) (quoting
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010)). "Where
[a PSI] exist[s], we . . . presume that the [trial court] was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors." Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014).
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The statutory maximum for receiving stolen property is ten years'
imprisonment. 18 Pa.C.S.A. §§ 106(3); 3903(a). The trial court sentenced
Smith to four to eight years' imprisonment. His original sentence was 23
months' incarceration. Therefore, the court imposed a sentence near the
maximum. 42 Pa.C.S.A. § 9760(1). This was not an abuse of discretion.
Although it was Smith's first violation of probation, the violation resulted
from an arrest on new criminal charges. Further, although Smith believed his
probation was complete, he still was on probation and the violation was an
arrest, not a violation of reporting requirements. The trial court heard the facts
underlying the new charges before finding that Smith violated probation, and
the court could consider such facts at sentencing. Here, at the sentencing, the
court considered the pre -sentence report, testimony from Smith's witnesses,
and other factors, in imposing sentence. Although Smith claims the trial court
failed to consider the PSI, the trial court stated it did, and Smith presents no
evidence to the contrary. The trial court took all factors into consideration
when imposing sentence, the sentence was not unduly harsh, and the court
did not abuse its discretion.
Judgment of sentence affirmed.
Judgment Entered.
Jseph Seletyn,
D.
Prothonotary
Date: 8/12/19
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