Com. v. Creamer, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AUSTIN LEE CREAMER :
:
Appellant : No. 1758 MDA 2018
Appeal from the Judgment of Sentence Entered October 10, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000131-2018
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 27, 2019
Austin Lee Creamer appeals from the judgment of sentence imposed
following his convictions for terroristic threats and related charges. Creamer
challenges the court’s application of the deadly weapon enhancement. We
affirm.
The evidence presented at Creamer’s jury trial, viewed in the light most
favorable to the Commonwealth as verdict winner, established the following.
Lark Anderson is the maternal grandmother of Creamer’s son, of whom she
has custody. Anderson’s daughter, Victoria, is the mother of the child, and
had been sharing a home with Creamer, but was preparing to leave the
residence. On January 12, 2018, Anderson and Victoria went to the home in
an attempt to retrieve the child’s birth certificate and social security card and
some of Victoria’s clothing. Trial Court Opinion, filed 12/28/18, at 2-3.
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* Retired Senior Judge assigned to the Superior Court.
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Victoria went to the bedroom to gather her clothing, and asked Creamer
for the documents. Creamer refused to give them to her, and began yelling
obscenities. Anderson then entered the bedroom and also instructed Creamer
to hand over the documents. In response, Creamer, while walking towards
her, pulled out a knife and threatened to slice her throat. Creamer held the
knife within inches of Anderson’s throat for approximately one minute.
Creamer then called out to Billie Jo Yemm, who was also in the house at the
time, and removed the knife from Anderson’s throat. Yemm entered the room
and was able to defuse the situation while Victoria finished packing her
clothing. Victoria and Anderson left. Once outside, Anderson called 911. The
police were dispatched to the home in response to the incident, and arrested
Creamer. Incident to the arrest, the police searched Creamer and found, in
the front pocket of his sweatshirt, an open pocketknife and a glass jar
containing marijuana. Id. at 3-4.
Creamer was tried on charges of terroristic threats, recklessly
endangering another person (“REAP”), possession of drug paraphernalia, and
possession of marijuana.1 The jury found Creamer guilty of terroristic threats
and possession of drug paraphernalia, but not guilty of REAP. The court, sitting
without a jury, then found Creamer guilty of possession of marijuana.2
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1 18 Pa.C.S.A. §§ 2706(a)(1), 2705; 35 P.S. §§ 780-113(a)(32), 780-
113(a)(31)(i).
2 The parties stipulated to the chain of custody of the drug evidence and the
results of its testing.
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At Creamer’s sentencing hearing, the parties discussed the pre-sentence
investigation report (“PSI”), which included a copy of the sentencing
guidelines. Id. at 5. The guidelines included ranges for the suggested
minimum sentence for terroristic threats, both with and without the “deadly
weapon used” enhancement. With the enhancement, the sentencing
guidelines called for a standard range of a minimum of six to seven months’
imprisonment; the aggravated range extended to a minimum of ten months’
imprisonment. Id. at 6; see also 204 Pa. Code § 303.17(b).3 Neither party
contested the accuracy of the guidelines. Tr. Ct. Op. at 5.
When asked which set of guidelines to apply (with or without the
enhancement), Creamer’s counsel stated, “I know that it’s statutory. . . . [I]t
would have been more instructive to put it on the jury sheet; but it is a court’s
determination. So obviously, the Court heard all the testimony and has to
make the determination on her own.” N.T., 10/10/18, at 8. The
Commonwealth argued that Creamer used a deadly weapon when committing
terroristic threats, based on Anderson’s testimony that Creamer had held a
knife to her throat. Id. at 8-9. After the court determined it would apply the
deadly weapon enhancement, defense counsel stated, “[T]hat’s discretionary
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3Without the enhancement, the standard range was a minimum of restorative
sanctions to one month’s imprisonment; the aggravated range went up to a
minimum of four months’ imprisonment. Tr. Ct. Op. at 5-6; see also 204 Pa.
Code § 303.16(a).
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with the court. The [c]ourt makes that determination. So I have nothing to
really argue about. It was she said he said[,] so.” Id. at 9.
The court then sentenced Creamer to six to 23 months’ imprisonment
for terroristic threats, which was within the standard range with the deadly
weapon enhancement. The court imposed periods of probation for the other
charges.
Creamer did not file a post-sentence motion, but filed a timely notice of
appeal. On appeal, Creamer states his issue as follows: “Did the court abuse
its discretion at sentencing in applying the deadly weapon enhancement to
the conviction for terroristic threats?” Creamer’s Br. at 4.
Creamer argues that the jury’s acquitting him of REAP “suggests they
were not convinced that a weapon was used or put in a position to recklessly
endanger the victim.” Id. at 10. Creamer contends that the court’s application
of the deadly weapon enhancement to his terroristic threats conviction
contradicted the jury’s verdict, and violated his Sixth Amendment right to trial
by jury. Id. at 11-12. At the same time, Creamer argues that the use of the
enhancement is considered a discretionary aspect of sentence, and that the
court abused its discretion in applying it. Id.In its Pa.R.A.P. 1925(a) opinion, the trial court explained that the
Sentencing Code required it to determine whether Creamer had used a
dangerous weapon in committing the offense, and, if so, to consider the
suggested guidelines ranges including the enhancement. See Tr. Ct. Op. at 7
(citing 204 Pa.Code 303.10(a)(2) and Commonwealth v. Solomon, 151
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A.3d 672, 677-78 (Pa.Super. 2016)); see also 18 Pa.C.S.A. § 913(f)
(including “knife” in the definition of “dangerous weapon”).4 The court also
stated that doing so does not “usurp the function of the jury,” because the
sentencing guidelines’ suggested minimum sentencing ranges are suggestive
and not mandatory. Therefore, the fact of whether Creamer used a deadly
weapon was not an element of the offense that mandatorily increased his
sentence, but rather an appropriate consideration for the court at the penalty
phase. Id. at 7-8 (citing Commonwealth v. Ali, 112 A.3d 1210, 1226
(Pa.Super. 2015), vacated on other grounds, 149 A.3d 29 (Pa. 2016)). Finally,
the court noted that as Creamer did not file a post-sentence motion, issues
regarding the discretionary aspects of his sentence were waived for appeal.
Id. at 8.
We have previously rejected arguments that the court’s utilization of
enhancements when calculating the sentencing guidelines ranges violates the
defendant’s right to a jury trial, as the guidelines “only require the trial court
to consider a certain range of sentences. The enhancements do not bind the
trial court to impose any particular sentence, nor do they compel the court to
sentence within the specified range.” Ali, 112 A.3d at 1226; see also
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4 The court erroneously stated it was required to determine if Creamer used a
“deadly” weapon as defined in 18 Pa.C.S.A. § 2301, rather than a “dangerous”
weapon as defined by in Pa.C.S.A. § 913. See Tr. Ct. Op. at 7; 204 Pa.Code
303.10(a)(2)(ii) (requiring trial court to apply the deadly weapon
enhancement upon finding that defendant threatened or injured another
individual with use of “any dangerous weapon (as defined in 18 Pa.C.S.[A]. §
913)”). The error has no bearing on our analysis, as Creamer does not contest
that a knife qualifies as a “dangerous weapon” under the guidelines.
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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa.Super. 2014)
(explaining that deadly weapon enhancement does not violate the Sixth
Amendment right to trial by jury). The Supreme Court has similarly rejected
the argument that “the Sentencing Guidelines run afoul of the Sixth
Amendment to the extent that they allow a sentencing judge to depart from
the recommended ranges based on facts not found by a jury[.]”
Commonwealth v. Yuhasz, 923 A.2d 1111, 1114 (Pa. 2007).5
In other words, while application of the enhancement requires a court
to find facts, rather than the jury, the court’s findings only affect the ranges
the court takes into consideration, along with many other factors, when
imposing sentence. Indeed, a court often considers many other facts at
sentencing which were never before the jury, such as the defendant’s criminal
history and personal background. Here, Creamer was sentenced below the
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5 In Yuhasz, the appellant challenged the court’s imposition of a sentence
above the standard range of the sentencing guidelines based on aggravating
factors found by the court. The Court held that because Pennsylvania’s
sentencing guidelines are merely advisory, and “[b]ecause the statutory
maximum is the polestar for Sixth Amendment purposes, a judge may impose
a sentence outside the [standard guidelines range] without unconstitutionally
increasing the punishment for a crime based on judicially-determined facts as
long as the maximum sentence imposed does not exceed the statutory limit.”
923 A.2d at 1119 (footnote omitted); accord Commonwealth v. Saunders,
946 A.2d 776, 788 (Pa.Super. 2008) (“where the statutory maximum is not
exceeded, a trial court’s reliance upon facts not admitted at trial in departing
from the sentencing guidelines is ‘constitutionally irrelevant’”) (quoting
Yuhasz, 923 A.2d at 1119).
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five-year statutory maximum as established by the legislature, 6 and the
court’s reliance on facts not explicitly found by the jury, in applying the
enhancement, did not violate the Sixth Amendment. Ali, 112 A.3d at 1226.
In addition, as foregoing decisions make clear, a challenge to the factual
conclusions made by the court that led to its consideration of the deadly
weapon enhancement implicates the court’s use of its discretion when
fashioning the sentence.7 Creamer did not argue at sentencing or in a post-
sentence motion that the court’s application of the deadly weapon
enhancement was an abuse of discretion in light of his acquittal on REAP;
rather, Creamer acquiesced to the court’s decision on whether to apply the
enhancement. As Creamer failed to preserve the issue, it is waived. See
Commonwealth v. Tavarez, 174 A.3d 7, 10 (2017), appeal denied, 189 A.3d
385 (Pa. 2018) (stating challenges to court’s application of the deadly weapon
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6 See 18 Pa.C.S.A. §§ 2706(d) (grading the offense of terroristic threats as a
first-degree misdemeanor unless other conditions apply), 1104(1) (stating
that the maximum sentence for a first-degree misdemeanor is five years’
imprisonment).
7 In contrast, a claim that the court applied a statutory enhancement that
binds it to impose an elevated sentence based on facts found by the judge,
rather than the jury, implicates the legality of the sentence, rather than its
discretionary aspects, and may be raised for the first time on appeal. See
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.Super. 2014) (stating
challenge that to a sentence under Alleyne v. United States, 570 U.S. 99(2013), or Apprendi v. New Jersey, 530 U.S. 466 (2000), implicates the
legality of the sentence and is not subject to waiver); Alleyne, 570 U.S. at
114-15 (holding any fact aside from prior conviction that increases mandatory
minimum must be submitted to the jury); Apprendi v. New Jersey, 530 U.S.
at 490 (holding any fact aside from prior conviction that increases penalty
beyond statutory maximum must be submitted to the jury).
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enhancement implicate the discretionary aspects of sentencing);
Commonwealth v. Wallace, 533 A.2d 1051, 1053 (Pa.Super. 1987)
(holding challenges to the deadly weapon enhancement based on the
“unconstitutionality of the factors considered in the exercise of the court’s
discretion” must be raised and preserved).
Finally, even if it were preserved, Creamer’s argument that the court
abused its discretion in applying the enhancement after the jury acquitted
Creamer of REAP lacks merit because “a defendant may not challenge his
conviction on one count when it is inconsistent with the jury’s verdict of
acquittal on another count.” Commonwealth v. Moore, 103 A.3d 1240, 1246
(Pa. 2014). This is because, in such a case, although a jury conviction
establishes that the jury found each element of a crime beyond a reasonable
doubt, no such factual inference can be made by a jury’s acquittal. Id. at
1250; see also id. at 1242, 1250 (affirming conviction of possessing
instrument of crime despite jury’s acquittal of murder following self-defense
claim).
Here, although the jury concluded each element of the offense of
terroristic threats was met beyond a reasonable doubt,8 we cannot infer from
the jury’s acquittal on REAP that the evidence at Creamer’s trial failed to meet
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8 “A person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to . . . commit any crime
of violence with intent to terrorize another[.]” 18 Pa.C.S.A. § 2706(a)(1).
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any element of that offense,9 let alone conclude that the jury found that
Creamer did not use a knife when committing terroristic threats. Thus, the
court neither contradicted the findings of the jury nor abused its discretion by
applying the enhancement. To the contrary, the court followed the statutory
mandate to apply it.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2019
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9 “A person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of
death or serious bodily injury.” 18 Pa.C.S.A. § 2705.
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