Com. v. Smiley, R. ( 2021 )


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  • J-S37005-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                         :
    :
    :
    RAEON SMILEY                            :
    :
    Appellant             :   No. 3068 EDA 2019
    Appeal from the Judgment of Sentence Entered September 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0008837-2011
    BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY SHOGAN, J.:                             Filed: May 20, 2021
    Appellant, Raeon Smiley, appeals nunc pro tunc from the judgment of
    sentence entered on September 21, 2017, following the revocation of his
    probation. We vacate Appellant’s sentence and remand for resentencing.
    The lower court summarized the procedural history as follows:
    On September 21, 2011, [Appellant], Raeon Smiley, pled
    guilty before this [c]ourt to one count of Sale of a Firearm to
    Ineligible Transferee (18 Pa. C.S.A. § 611 1(8)(2)) and one count
    of Conspiracy (18 Pa.C.S.A. § 903(c)). On November 30, 2011,
    this [c]ourt sentenced [Appellant] to eight (8) to twenty three (23)
    months of confinement, with immediate parole, followed by five
    (5) years of probation for Sale of a Firearm to Ineligible
    Transferee, and five (5) years of probation for Conspiracy. On
    June 15, 2017, while on this [c]ourt’s probation, [Appellant] was
    arrested and charged with Simple Assault and Harassment as a
    result of an argument with his live-in girlfriend. During that
    argument, which occurred in the home [Appellant] shares with the
    complaining witness and their two young children, [Appellant]
    punched the complaining witness in the face. N.T., 9/21/2017, at
    3, 5.     Those charges were ultimately dropped when the
    complaining witness failed to appear for court on several
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    occasions. [Appellant] also had one “hot” urine test result,
    indicating that he used drugs while on probation, and wanted
    cards issued by his probation officer because he failed to appear
    at the probation office after being told to do so following his new
    arrest. Id. at 9. On September 21, 2017, following a Violation of
    Probation (“VOP”) hearing, this [c]ourt found [Appellant] to be in
    violation of [his] probation. This [c]ourt revoked probation and
    imposed a VOP sentence of two and one half (2 ½) to five (5)
    years of confinement for Sale of a Firearm to Ineligible Transferee,
    and three and one half (3 ½) to seven (7) years of confinement
    for Conspiracy.     This [c]ourt ordered the sentences to run
    concurrently, for an aggregate VOP sentence of six (6) to twelve
    (12) years of confinement.
    On September 27, 2017, [Appellant] filed Post Sentence
    Motions, which this [c]ourt denied the same day. [Appellant] then
    filed a Notice of Appeal to the Superior Court of Pennsylvania on
    October 24, 2017. That appeal was quashed as untimely on
    February 6, 2018 (3450 EDA 2017).
    On September 20, 2018, [Appellant] filed a timely pro se
    petition under the Post Conviction Relief Act (“PCRA”). PCRA
    counsel was subsequently appointed, and on October 21, 2019,
    this [c]ourt granted Defendant's petition and reinstated his
    appellate rights.
    VOP Court Opinion, 1/14/21, at 1–2.
    The record reveals that Appellant’s direct-appeal rights were reinstated
    nunc pro tunc on October 21, 2019, and Appellant filed a timely appeal on
    October 25, 2019. Appellant, represented by counsel, failed to comply with
    the trial court’s order to file a Pa.R.A.P. 1925(b) statement of errors
    complained of on appeal within twenty-one days of November 21, 2019.1
    ____________________________________________
    1   The record certified to us on appeal initially revealed that counsel did not
    file a Rule 1925(b) statement. Appellant apparently filed the statement on
    February 9, 2020, nearly two months late, the same day he filed his appellate
    brief in this Court. Supplemental Record, 1/19/21.
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    On November 25, 2020, this Court concluded that Appellant’s counsel’s
    failure to file a Pa.R.A.P. 1925(b) statement was per se ineffective assistance
    of counsel. Commonwealth v. Smiley, 
    242 A.3d 455
    , 3068 EDA 2019 (Pa.
    Super. filed November 25, 2020).            Therefore, pursuant to Pa.R.A.P.
    1925(c)(3), we remanded for the filing of a Pa.R.A.P. 1925(b) statement nunc
    pro tunc within twenty-one days from the date our Judgment Order was filed,
    or by December 16, 2020. We directed the trial court to file a Rule 1925(a)
    opinion within thirty days of the filing of the Pa.R.A.P. 1925(b) statement, with
    a new briefing schedule to follow.
    The VOP court filed its opinion after remand on January 14, 2021, and
    stated, “As [Appellant] has already filed a Concise Statement, this [c]ourt did
    not order that another be submitted.” VOP Court Opinion, 1/14/21, at 3. On
    February 23, 2021, Appellant filed, in this Court, a brief identical to his prior
    brief submitted before remand.       The Commonwealth complied with our
    remand order and filed a responsive brief on March 24, 2021.
    Appellant raises the following issue on appeal:
    1. Was the over[]ly harsh consecutive sent[en]ce imposed by
    the court following a violation of probation hearing without
    sufficient reasons on the record as required by Pennsylvania
    law?
    Appellant’s Brief at 4.
    Our standard of review is as follows:
    The imposition of sentence following the revocation of probation
    is vested within the sound discretion of the trial court, which,
    absent an abuse of that discretion, will not be disturbed on appeal.
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    An abuse of discretion is more than an error in judgment—a
    sentencing court has not abused its discretion unless the record
    discloses that the judgment exercised was manifestly
    unreasonable, or the result of partiality, prejudice, bias or ill-will.
    Commonwealth v. Simmons, 
    56 A.3d 1280
    , 1283-84 (Pa.
    Super. 2012).
    Commonwealth v. Colon, 
    102 A.3d 1033
    , 1043 (Pa. Super. 2014). When
    evaluating the outcome of a revocation proceeding, this Court is limited to
    reviewing the validity of the proceeding, the legality of the judgment of
    sentence    imposed,    and    the    discretionary   aspects     of   sentencing.
    Commonwealth v. Cartrette, 
    83 A.3d 1030
    , 1033-1035 (Pa. Super. 2013).
    “[T]he revocation of a probation sentence is a matter committed to the sound
    discretion of the trial court[,] and that court’s decision will not be disturbed
    on appeal in the absence of an error of law or an abuse of discretion.”
    Commonwealth v. MacGregor, 
    912 A.2d 315
    , 317 (Pa. Super. 2006).
    Additionally, when sentencing a defendant following a revocation of probation,
    the trial court is limited only by the maximum sentence that it could have
    imposed originally at the time of the probationary sentence. Commonwealth
    v. Fish, 
    752 A.2d 921
    , 923 (Pa. Super. 2000); 42 Pa.C.S. § 9771(b).
    Appellant asserts that the VOP court imposed an overly harsh
    consecutive sentence and failed to provide adequate reasons in fashioning
    Appellant’s sentence.    Appellant’s Brief at 10.     This is a challenge to the
    discretionary aspects of the sentence. Commonwealth v. Downing, 
    990 A.2d 788
    , 792 (Pa. Super. 2010). We note that “[t]he right to appellate review
    of the discretionary aspects of a sentence is not absolute.” Commonwealth
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    v. Zirkle, 
    107 A.3d 127
    , 132 (Pa. Super. 2014). Rather, where an appellant
    challenges the discretionary aspects of a sentence, the appeal should be
    considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
    
    932 A.2d 155
    , 163 (Pa. Super. 2007).
    As we observed 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:
    [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. [708]; (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).
    Id. at 170 (citing Commonwealth v. Evans, 
    901 A.2d 528
    , 533 (Pa. Super.
    2006)). The determination of whether there is a substantial question is made
    on a case-by-case basis, and this Court will grant the appeal 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. Sierra, 
    752 A.2d 910
    , 912-913 (Pa. Super.
    2000).
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    Herein, the first three requirements of the four-part test are met:
    Appellant brought a timely appeal, raised the challenge in a post-sentence
    motion,2 and included in his appellate brief the necessary separate concise
    statement of the reasons relied upon for allowance of appeal pursuant to
    Pa.R.A.P. 2119(f).3      Appellant’s Brief at 6.   Therefore, we next determine
    whether Appellant raised a substantial question requiring us to review the
    discretionary aspects of the sentence imposed by the trial court.
    In his Rule 2119(f) statement, Appellant asserts that the sentence
    imposed “failed to follow the dictates of 42 Pa.C.S.A. § 9721(b) requiring the
    court to at least consider the particular circumstances of the offense and the
    character of the defendant along with other important factors . . . .”
    Appellant’s Brief at 6.        We conclude that Appellant raised a substantial
    question that the sentence appealed is not appropriate under the Sentencing
    Code. See Commonwealth v. Caldwell, 
    117 A.3d 763
    , 769-770 (Pa. Super.
    2015) (en banc) (holding that an assertion that a sentence is excessive, in
    ____________________________________________
    2  We note that while Appellant assailed his sentence in his post-sentence
    motion, he merely noted that the sentence “was excessive” and failed to assert
    the VOP court’s failure to provide adequate reasons for its sentence. Post
    Sentence Motion, 9/27/17, at unnumbered 2. We do not, however, find waiver
    on this basis herein.
    3  We note that although Appellant presented a statement pursuant to
    Pa.R.A.P. 2119(f), he incorrectly labeled it as a statement of matters
    complained of on appeal. Appellant’s Brief at 6.
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    conjunction with a claim that the trial court failed to consider all pertinent
    factors, raises a substantial question).
    The sentencing judge has broad discretion in determining the proper
    penalty, and this Court accords the sentencing court great deference because
    the sentencing court is in the best position to view a defendant’s character,
    displays of remorse, defiance, or indifference, and the overall effect and
    nature of the crime.    Commonwealth v. Walls, 
    926 A.2d 957
    , 961 (Pa.
    2007) (quotations and citations omitted).     Herein, the VOP court asks this
    Court to remand the matter for resentencing. The VOP court states:
    [T]his [c]ourt concedes that it committed reversible error in failing
    to state sufficient reasons for its sentence on the record at the
    time of sentencing, and that the record contains insufficient
    information to demonstrate that this [c]ourt considered “the
    particular circumstances of the offense and the character of the
    defendant.” As such, this [c]ourt requests that the Superior Court
    remand the matter for resentencing.
    VOP Court Opinion, 1/14/21, at 3. The Commonwealth concurs with the VOP
    court and states, “Because the VOP court, by its own admission, concedes that
    it did not comply [with] the requirements of [42 Pa.C.S. §] 9721(b) and
    [Pa.R.Crim.P.] 708(D)(2), the Commonwealth does not oppose remand for
    resentencing for the VOP court to supplement the record.” Commonwealth’s
    Brief at 12. Our review of the record compels our agreement.
    Therefore, the judgment of sentence imposed September 21, 2017, is
    vacated and the case is remanded for resentencing.
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    Judgment of sentence vacated.         Case remanded for resentencing.
    Jurisdiction relinquished.
    P.J.E. Ford Elliott did not participate in the consideration or decision of
    this case.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/20/21
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