Com. v. Hamrick, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARNELL HAMRICK :
:
Appellant : No. 1821 EDA 2021
Appeal from the Judgment of Sentence Entered August 2, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000440-2007
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 3, 2022
Darnell Hamrick appeals from the judgment of sentence entered in the
Court of Common Pleas of Philadelphia County. Hamrick challenges the
discretionary aspects of his sentence. After our review, we find no abuse of
discretion and, therefore, affirm.
Following trial, a jury convicted Hamrick of first-degree murder.1
Hamrick was 16 years old when he committed the murder. On January 9,
2009, the Honorable Sheila Woods-Skipper sentenced Hamrick to the
mandatory term of life imprisonment without parole (LWOP). Subsequently,
the court granted Hamrick post-conviction relief and vacated his sentence
pursuant to Miller v. Alabama, 567 U.S. 460 (2012), which held the Eighth
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(a).
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Amendment forbids a sentencing scheme that mandates LWOP for juvenile
offenders.
On August 2, 2021, The Honorable Barbara A. McDermott held a
resentencing hearing. At that hearing, members of both the victim’s family
and Hamrick’s family testified, and Hamrick exercised his right of allocution.
At the conclusion of the hearing, the court resentenced Hamrick to 22½ years
to life imprisonment. Hamrick filed a post-sentence motion, which the court
denied. He then filed this timely appeal. Both the trial court and Hamrick
complied with Pa.R.A.P. 1925.
Hamrick raises the following issues for our review:
1. Did the resentencing court abuse its discretion by imposing a
sentence that was based upon the court’s interpretation of
retribution only and which effectively ignored other sentencing
factors when the court effectively ignored [Hamrick’s] rotten
social background and potential for rehabilitation as well as
forgiveness by [the victim’s] family and when juveniles
released following mandatory life resentencing in Philadelphia
have shown little recidivism?
2. Did the resentencing court abuse its discretion and essentially
vitiate [Hamrick’s] right to a resentencing hearing because the
resentencing court deemed [Hamrick] to be non-credible
before [he] even spoke, because the court also belittled the
fact that [Hamrick] had no discipline for violence, weapons, or
drugs while confined, and because there was clearly ill-will prior
to the hearing toward [Hamrick] effectively making the whole
sentencing process a forgone conclusion where the court had
only read a brief Commonwealth synopsis and used [Hamrick’s]
forthrightness in [his] statements to a psychological expert
against [him]?
3. Did the resentencing court abuse its discretion and improperly
insert itself into the adversarial process because the deviation
from the recommended sentence of 17 years to life constitutes
an unwarranted intrusion into the adversarial process when the
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District Attorney for Philadelphia County has a committee that
expends significant resources on fashioning appropriate
recommendations for the resentencing of minors and when the
resentencing court did not justify a stark deviation from the
recommendation in any way and did not consider multiple other
factors associated with draconian sentencing schemes for
children?
Appellant’s Brief, at 4-5.
Sentencing is vested in the sound discretion of the sentencing judge,
and a sentence will not be disturbed on appeal absent a manifest abuse of
discretion. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
2006). There is no absolute right to appeal the discretionary aspects of a
sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006).
Rather, where an appellant challenges the discretionary aspects of a sentence,
the appeal is considered a petition for allowance of appeal. See
Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007). As we
stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We 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).
Moury, 992 A.2d at 170 (citation and brackets omitted).
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Here, the first three requirements of the four-part test are met. Hamrick
filed a timely appeal, raised the issue in his post-sentence motion, and
included in his appellate brief the necessary concise statement of the reasons
relied upon for allowance of appeal pursuant to Rule 2119(f). See Appellant’s
Brief, at 10-15. We next determine whether he has raised a substantial
question requiring us to review the discretionary aspects of the sentence
imposed.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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 process.”
Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (citing
Moury, supra at 170 (internal citations omitted).
Hamrick argues the court ignored his “rotten social background,” his
potential for rehabilitation, and the “forgiveness by the [victim’s] family.”
Appellant’s Brief, at 8, 12. He contends the court did not consider the
sentencing factors and based its sentence solely on retribution. Id. Hamrick
also argues the court abused its discretion by finding him not credible prior to
the start of the resentencing hearing and “belittling” the fact that he “had no
discipline for violence, weapons, or drugs while confined.” Id. at 12. Finally,
Hamrick argues the court abused its discretion and improperly inserted itself
into the adversarial process by deviating from the Commonwealth’s
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recommended sentence of 17 years to life. Id. at 8-9; see also N.T.
Resentencing Hearing, 8/2/21, at 29.
As this Court has held, a claim that asserts the sentencing court focused
solely upon a single sentencing factor raises a substantial question that the
sentence is inappropriate under our Sentencing Code. See, e.g.,
Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008)
(substantial claim raised where appellant claimed “the sentencing court
focused solely on the serious nature of the crime”); see also
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013)
(allegation that trial court focused solely on nature of offense presented
substantial question).
Thus, while Hamrick’s first claim raises a substantial question, we
conclude that it lacks merit. We have reviewed the record, in particular the
notes of testimony from the resentencing hearing. Simply put, Hamrick’s
contention is not borne out in the record. The court heard testimony from
Hamrick’s family and the victim’s family, and it listened to Hamrick’s
allocution, questioning him at length for clarification. The court stated:
I have to take into account the seriousness of the offense. I have
to take into the impact that your crime has had on the victim’s
family and on the community. I have to take into account your
role in the crime. And in this crime there is no other individual,
so you are the sole perpetrator of the crime. I have to also look
at the sentencing guidelines and statute for this crime. I have to
look at your rehabilitative needs. I have to look at what you’ve
done with your life in the intervening years. . . . Also, besides
your rehabilitation, I look at your [contrition], your responsibility,
and I have already mentioned what you've done with your life.
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N.T. Resentencing Hearing, 8/2/21, at 11-2. The court reviewed the
sentencing memoranda submitted by Hamrick and the Commonwealth, id. at
14, considered Hamrick’s troubled family background, id. at 16-17, his health
and educational background, id. at 17-18, his social background, id. at 19,
and his potential for rehabilitation. The court noted Hamrick’s incarceration
history, which included over fifty institutional infractions during the twelve
years he has already served, some of which occurred as recently as 2018. Id.
at 21-24. The court further explained:
Prior to sentencing and as discussed at the hearing, this [c]ourt
reviewed [Hamrick’s] detailed Mitigation Report,[2] which included
a Forensic Interview conducted by Dr. Kirk Heilbrun on November
18, 2019. The Forensic Interview highlighted [Hamrick’s] difficult
family background, specifically that his mother struggled with
substance abuse and that his mother’s boyfriend abused him at a
young age. The report also indicated that [Hamrick] attempted
suicide at a young age and was treated for Attention Deficit
Disorder.
In 2013, the Department of Corrections evaluated [Hamrick] and
indicated that he has an average risk of re-offending. While
incarcerated, [Hamrick] completed a Violence Prevention Course,
completed an anger management course on his third attempt, and
obtained his General Education Degree. This court also considered
[Hamrick’s] strong bonds with his family and his family’s
willingness to support him upon his release.
In his own words, [Hamrick] killed because it was a “neighborhood
thing.” This [c]ourt interprets this statement to mean that he
needed to preserve his reputation as a “tough guy” in the
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2 The Mitigation Report functioned as a PSI in this resentencing case. “Where
pre-sentence reports exist, we shall continue to presume that the sentencing
judge was aware of relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
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neighborhood. While incarcerated, [Hamrick] committed fifty-two
misconducts, again for the sake of his reputation. While this
[c]ourt accepts [his] behavior at the time of his crime as one
consistent with an immature juvenile, his continued infractions in
prison show that he may not have yet grasped the need to
conform his behavior to the norms of a law-abiding society.
Trial Court Opinion, 9/27/21, at 8-9 (citations omitted).
Judge McDermott considered the relevant sentencing factors. Contrary
to Hamrick’s argument, the court considered his background and rehabilitative
needs, and balanced “the seriousness of [Hamrick’s] offense, the protection
of the public, his prison record, the impact on the victim’s family, and the
current sentencing statute for juveniles with [Hamrick’s] mitigation evidence.”
Id. at 8. We reject Hamrick’s contention that the court solely focused on
retribution. Lawrence, supra.Under our standard of review, an abuse of discretion may not be found
unless the sentencing court’s decision is “clearly erroneous.”
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citation omitted).
“The rationale behind such broad discretion and the concomitantly deferential
standard of appellate review is that the sentencing court is ‘in the best position
to determine the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it.’” Id. (citation omitted).
We find no abuse of discretion here.
Hamrick’s final two claims do not raise a substantial question. Hamrick’s
Rule 2119(f) statement asserts that the court deemed him “non-credible
before he even spoke,” and that there “was clearly ill- will prior to the hearing
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toward [Hamrick] effectively making the whole sentencing process a forgone
conclusion[.]” Appellant’s Brief, at 12. Hamrick’s Rule 2119(f) statement
makes no reference to any exchange in the record indicating support for these
conclusions. These bald allegations do not present a substantial question that
the sentence was inappropriate under the Sentencing Code. See 42 Pa.C.S.A.
§ 9781(b). See also Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa.
Super. 2018) (bald assertion does not raise substantial question).
With regard to Hamrick’s claim that the court abused its discretion by
disregarding the Commonwealth’s recommended sentence of 17 years to life
imprisonment, we discern no substantial question.3 See Commonwealth v.
McClendon, 589 A.2d 706, 710 (Pa. Super. 1991) (sentencing court is not
bound by sentencing recommendations). See also Commonwealth v.
Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012) (substantial question exists where
appellant “sets forth a plausible argument that the sentence violated a
provision of the [S]entencing [C]ode or is contrary to the fundamental norms
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3 In its brief, the Commonwealth points out that its sentencing
recommendation of 17 years to life imprisonment was based, in part, on the
facts as presented at trial– that the victim was one of the men who robbed
Hamrick at gunpoint the night before the murder and threatened to kill him if
he told anyone about the robbery. N.T. Resentencing Hearing, supra at 29-
30. “While that alleged fact in no way justified Hamrick’s actions, it arguably
was a circumstance that mitigated the juvenile defendant’s action compared
to, say, a murder in which a totally innocent victim was killed.”
Commonwealth’s Brief, at 14. At the resentencing hearing, however, Hamrick
admitted that he did not even know whether the victim was one of the men
who robbed him, and explained the killing as a “neighborhood thing,” and that
he shot the victim because he was the first person he saw when he came
outside that day. N.T. Resentencing Hearing, supra at 69, 72.
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of the sentencing process.”) (citations and quotations omitted);
Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010)
(“At a minimum, [a Rule 2119(f) statement,] must articulate what particular
provision of the [C]ode is violated, what fundamental norms the sentence
violates, and the manner in which it violates that norm.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2022
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