Com. v. Hankerson, T. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
TERRYL JORDAN HANKERSON
Appellant No. 1317 MDA 2015
Appeal from the Judgment of Sentence June 26, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000969-2012
CP-22-CR-0002209-2011
BEFORE: BOWES, OTT AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 16, 2016
Terryl Hankerson appeals from the June 26, 2015 judgment of
sentence imposing an aggregate term of twelve to twenty-four years
imprisonment after a jury found him guilty of robbery, criminal conspiracy,
and carrying a firearm without a license. We affirm.
This appeal comes to us from re-sentencing after this matter was
remanded to the trial court. In our previous disposition, we affirmed
Appellant’s convictions but vacated judgment of sentence. Commonwealth
v. Hankerson, No. 1069 MDA 2014, 2015 WL 6164434 (Pa.Super. 2015).
We found that the trial court abused its discretion when it failed to
* Retired Senior Judge assigned to the Superior Court.
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adequately state the guideline ranges on the record. We accordingly
remanded for re-sentencing.
We set forth the factual history of this case in our previous
memorandum and adopt it herein:
On October 9, 2011, at approximately 5:30 a.m., Michael J.
Swartz, a taxi driver, was at the Exxon station at Sixth and
Maclay Streets in Harrisburg when Appellant walked over from a
dark-colored vehicle and asked Swartz for change for a one-
hundred dollar bill. Swartz refused. Appellant pulled out a gun.
Swartz ran away and Appellant gave chase. An unidentified man
(“co-conspirator”) followed Swartz in the dark vehicle and cut
him off. Swartz fell to the ground just as Appellant and the
vehicle caught up with him. Both men then attacked and beat
Swartz before Appellant told his co-conspirator to go through
Swartz’s pockets. When Swartz struggled and fought back,
Appellant said, “F**k it. I am just going to shoot him.” Trial
Court Opinion, at 3, citing Notes of Testimony Trial (N.T.). Just
as Appellant pointed the gun at his face and moved to pull the
trigger, Swartz reached for the gun and his finger jammed the
hammer. The co-conspirator grabbed approximately $500 out of
Swartz’s pocket, and he and Appellant jumped into the dark
vehicle and drove away.
Id. at 1.
Upon remand, the trial judge re-sentenced Appellant on June 26,
2015, imposing the identical sentence. Appellant received the statutory
maximum sentence of ten to twenty years at the robbery charge, and a
consecutive two to four years at the firearms count.1 Appellant raises the
following issue for our review:
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1
Appellant received a concurrent sentence at the conspiracy count.
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Whether the trial court erred in the sentence imposed and
[whether] Appellant can show that a substantial question
[exists] as to whether the sentence imposed was appropriate
under the sentencing code?
Appellant’s brief at 4.
Preliminarily, we note that “there is no absolute right to appeal when
challenging the discretionary aspect of a sentence.” Commonwealth v.
Ahmad, 961 A.2d 884, 886 (Pa.Super. 2008). An appellant must first
satisfy a four-part test to invoke this Court’s jurisdiction. We examine
(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).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citation
omitted). Appellant filed a timely post-sentence motion for reconsideration
challenging the discretionary aspects of sentence, preserving the current
claim. Appellant then timely appealed the order denying that motion.
As to the separate statement requirement, we note Appellant’s brief
fails to comply with Pa.R.A.P. 2119(f). That provision mandates that an
appellant challenging the discretionary aspects of sentence shall set forth “in
a separate section of the brief a concise statement of the reasons relied
upon . . . [t]he statement shall immediately precede the argument on the
merits.” Id. Here, Appellant’s brief sets forth the statement within the body
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of the argument section. See Pa.R.A.P. 2111(a) (listing sections of the brief
and order they shall appear). Moreover, the section addressing the
substantial question inquiry largely intertwines the merits of the claim with
the threshold question of whether we have jurisdiction to reach the merits.
This statement is thus defective. Nevertheless, the Commonwealth does not
challenge the adequacy of the statement and we will not find waiver on that
basis. Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.Super. 2014).
We now address whether Appellant has raised a substantial question.
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, 935 (Pa.Super. 2013). We glean
two reasons from Appellant’s brief. Appellant avers that the trial court did
not consider mitigating factors, and claims that the court imposed an
excessive sentence.
We first address the excessive sentence argument. Appellant cites
Commonwealth v. Gonzalez, 109 A.3d 711 (Pa.Super. 2015) for the
proposition that a claim of excessiveness coupled with an allegation of failure
to consider mitigating circumstances raises a substantial question.
Gonzalez, in turn, cites Commonwealth v. Dodge, 77 A.3d 1263(Pa.Super. 2013) (en banc). However, Dodge discussed excessive
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sentences in the context of consecutive sentences for multiple crimes.2
Here, however, the excessiveness claim is not based on consecutive
sentences. Instead, it is predicated on the imposition of the statutory
maximum for Appellant’s conviction of a felony of the first degree. In this
regard, Appellant cites 42 Pa.C.S. § 9781(3), which requires remand where
“the sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.” However, that provision applies only if, upon
merits review, we conclude the sentence is unreasonable. It does not
address our ability to reach the merits stage.
We discern that the excessive sentence claim is, in reality, a claim that
the sentencing court failed to provide adequate reasons on the record to
justify the departure from the guidelines. Commonwealth v. Monahan,
860 A.2d 180, 181 (Pa.Super. 2004). Hence, we decline to find that the
imposition of a statutory maximum sentence, by itself, raises a substantial
question based on excessiveness.
Nevertheless, we agree that a substantial question is often found
where a sentence is outside the guidelines, and the appellant asserts a
failure to consider relevant sentencing criteria. Indeed, the mere allegation
of a failure to consider the factors outlined in 42 Pa.C.S. § 9721(b) may
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2
Of course, such excessiveness claims often arise where the sentence for
each individual crime is within the guidelines. Here, in contrast, the
sentence imposed was the statutory maximum.
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itself present a substantial question. See Commonwealth v. Riggs, 63
A.3d 780, 786 (Pa.Super. 2012) (finding substantial question where
appellant alleged trial court did not consider relevant criteria);
Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.Super. 2010) (same).
But see Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa.Super.
2008) (bald assertions or invocation of special words does not raise
substantial question; appellant must articulate how the court violated the
sentencing code). Due to the imposition of the maximum sentence at the
robbery count and the allegation of failing to consider the sentencing factors,
we find Appellant has raised a substantial question.
Having determined we have jurisdiction to review the claim, we now
address whether the sentencing court abused its discretion. Our standard of
review for sentencing claims is well-settled.
Sentencing is a matter vested within the discretion of the trial
court and will not be disturbed absent a manifest abuse of
discretion. Commonwealth v. Johnson, 967 A.2d 1001(Pa.Super. 2009). An abuse of discretion requires the trial court
to have acted with manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous. Commonwealth v. Walls, 592 Pa. 557, 926
A.2d 957 (2007)
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). As
noted supra, Appellant asks us to vacate and remand since the sentence is
outside the guidelines and is unreasonable. We are guided by the following
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definition of reasonableness when assessing a sentence outside of the
guidelines:
The Walls Court noted that the term “unreasonable” generally
means a decision that is either irrational or not guided by sound
judgment. It held that a sentence can be defined as
unreasonable either upon review of the four elements contained
in § 9781(d) or if the sentencing court failed to take into account
the factors outlined in 42 Pa.C.S. § 9721(b).
Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.Super. 2011). Here, it is
clear that the sentencing court accounted for the factors outlined in 42
Pa.C.S. § 9721(b) (sentence must be 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). While the trial judge ultimately imposed the same sentence, he
acknowledged in-court that he had weighed all those factors. Our prior
disposition did not fault the court on that account; instead, we held the court
failed to make that determination in-court and on the record. Additionally,
we noted that the original Pa.R.A.P. 1925(a) opinion could not serve as an
adequate substitute for an in-court acknowledgement of those factors. The
re-sentencing proceeding herein meets the statutory requirements and it is
clear by virtue of the prior opinion that the judge considered the factors in
imposing an identical sentence. Appellant concedes that the trial court
correctly set forth the guideline ranges. Appellant’s brief at 13.
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Upon our review of the record, and the sentencing factors outlined in
3
42 Pa.C.S. § 9781(d), we find no basis to deem the judgment of sentence
unreasonable. Appellant had a prior record score of two, and, as the trial
court aptly noted, Appellant attempted to fire a gun during the robbery.
Only the victim’s opportune actions prevented the gun from firing.
Appellant also asserts that the possibility of death should be
discounted since that risk is inherent in any robbery involving the threat of
serious bodily injury. Id. at 15. However, the trial court could surely
consider, in fashioning a sentence, the fact that the possibility of death
dramatically multiplied once Appellant attempted to pull the trigger.
Additionally, Appellant and his cohort chased and beat the victim. Appellant
could have terminated the encounter at multiple points during the incident.
In view of the four factors set forth in 42 Pa.C.S. § 9781(d) and the trial
court’s consideration of 42 Pa.C.S. § 9721(b), we cannot deem the sentence
irrational. The sentence was guided by sound judgment. Therefore, we find
no abuse of discretion.
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3
The four factors are: (1) The nature and circumstances of the offense and
the history and characteristics of the defendant; (2) The opportunity of the
sentencing court to observe the defendant, including any presentence
investigation; (3) The findings upon which the sentence was based; (4) The
guidelines promulgated by the commission.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
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