Com. v. Shaffer, K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KENNETH JOHN SHAFFER SR. :
:
Appellant : No. 3470 EDA 2019
Appeal from the Judgment of Sentence Entered July 6, 2015
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000042-2006
BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: Filed: October 29, 2020
Appellant, Kenneth John Shaffer, Sr., appeals pro se and nunc pro tunc
from the judgment of sentence imposed on July 6, 2015, following his guilty
plea to various offenses including rape of a child and involuntary deviate
sexual intercourse. Appellant asserts that the trial court erred in denying his
request to appoint an expert witness and not holding a new sexually violent
predator (SVP) assessment hearing. Appellant also argues that the trial court
violated the terms of his plea agreement when it imposed a sentence greater
than the mandatory minimum range at his resentencing hearing. Appellant
additionally claims that his resentencing violated double jeopardy
constitutional protections. Further, Appellant challenges the discretionary
aspects of his sentence. Lastly, Appellant argues that the trial court erred in
denying his post-sentence motion wherein he challenged the violation of his
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plea agreement and the trial court’s lack of jurisdiction to increase his
sentence. We affirm.
This Court previously set forth the relevant facts and procedural history
of this case as follows:
On May 12, 2006, [Appellant] pled guilty to two counts each of
aggravated indecent assault and corruption of a minor, and one
count each of rape of a child, involuntary deviate intercourse
[(IDSI)], statutory sexual assault and [indecent exposure].[fn2]
[The trial court ordered that a presentence investigation and a
Sexual Offender Assessment Board assessment. On September
7, 2006, Appellant’s counsel filed a motion to continue the
sentencing hearing and for the appointment of an independent
psychological expert for the sexually violent predator assessment.
The trial court denied that motion the following day.] On
September 11, 2006, the trial court sentenced [Appellant] to an
aggregate sentence of [sixteen] years and [six] months to [forty-
five] years in prison. [During the sentencing hearing, the trial
court found Appellant to be a sexually violent predator. Appellant]
filed a motion for reconsideration of sentence, which the trial court
denied.[1] Thereafter, the Commonwealth filed a petition to
amend sentence, averring that there was an error in the
sentencing computation, but that the total sentence imposed was
appropriate. On December 14, 2012, the trial court entered an
order [to correct a clerical error] which clarified that [Appellant’s]
total sentence is [fifteen] years and [six] months to [forty-five]
years in prison. [This new aggregate sentencing calculation was
erroneous.] Subsequently, on February 28, 2013, the trial court
entered another order that amended the December 14, 2012
sentencing order to read that [Appellant’s] total sentence is
[sixteen] years and [six] months to [forty-five] years in prison.
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1 Appellant did not raise the issue of the trial court’s denial of his request for
the appointment of an expert for the SVP hearing or challenge the trial court’s
determination that he was an SVP in his September 21, 2006 post-sentence
motion for reconsideration of sentence.
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On July [19], 2013, [Appellant], pro se, filed [a Post Conviction
Relief Act (PCRA)][2] petition. The PCRA court appointed attorney
[Lindsey] Collins as counsel. Attorney Collins filed an amended
PCRA petition on [Appellant’s] behalf alleging improper sentencing
on the rape of a child count. The PCRA court and the
Commonwealth agreed that a sentencing error was made in
relation to the rape of a child count.[3] Accordingly, the PCRA court
vacated the sentence imposed on that count only. On February
28, 2014, following a hearing, the PCRA court resentenced
[Appellant] solely on the rape of a child count to [five years and
six] months to [twenty] years in prison. Based on this
resentencing, [Appellant’s] new total aggregate sentence was
[sixteen] to [forty-five] years in prison. [Appellant] filed a motion
for reconsideration of sentence, which the PCRA court denied on
March [12], 2014.
18 Pa.C.S. §§ 3125(a)(7), (a)(8), 6301, 3121(c),
[fn2]
3123(a)(7), 3122.1, [3127(a)].
Commonwealth v. Shaffer, No. 1085 EDA 2014, 2014 WL 10558548, *1
(Pa. Super. filed Nov. 26, 2014) (unpublished mem.) (Shaffer I).
The Shaffer I Court vacated the PCRA court’s order, holding that when
the sentence on one count in a multi-count case is vacated, then all sentences
for all counts must be vacated if the invalidity of the sentence would have
affected the trial court’s sentencing on the remaining counts. Id. Because
this Court could not determine if the “invalidity of the sentence on the rape of
a child count would have affected the trial court’s sentencing on the remaining
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2 42 Pa.C.S §§ 9541-9546.
3 Specifically, the Commonwealth conceded that the trial court erroneously
calculated the guideline range for rape of a child using the Sixth Edition of the
Sentencing Guidelines instead of the Fifth Edition, which were applicable at
the time the offense was committed. See Commonwealth’s Memo. of Law,
1/27/14, at 1-2.
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counts,” we vacated the February 28, 2014 sentencing order and remanded
for resentencing on all counts. Id. at *1-2.
On June 5, 2015, prior to the resentencing hearing, Appellant filed a pro
se motion for appointment of an expert witness for the SVP hearing and for a
continuance of the sentencing hearing.4 Appellant’s counsel adopted the
motion during a subsequent hearing, which the trial court denied.
The trial court ordered an amended pre-sentence investigation report
(PSI) in advance of the resentencing hearing. On July 6, 2015, the trial court
resentenced Appellant to consecutive terms of incarceration of five years and
six months to twenty years for rape of a child (count two), five to ten years
for IDSI (count four), one to five years for statutory sexual assault (count
nine), two years and six months to five years for aggravated indecent assault
(victim less than thirteen years of age) (count twelve), and two to five years
for aggravated indecent assault (victim less than sixteen years of age) (count
seventeen). The court also imposed concurrent terms of incarceration of three
months to two years for indecent exposure (count twenty-two), and six
months to two years for each count of corruption of minors (counts twenty-
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4 A pro se filing submitted by a counseled defendant is a legal nullity.
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007). “When
a counseled defendant files a pro se document, it is noted on the docket and
forwarded to counsel pursuant to Pa.R.Crim.P. 576(A)(4), but no further
action is to be taken.” Commonwealth v. H. Williams, 151 A.3d 621, 623
(Pa. Super. 2016).
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five and thirty-one). Thus, Appellant’s aggregate sentence was sixteen to
forty-five years’ incarceration with credit for time served. On July 15, 2015,
Appellant filed a pro se post-sentence motion, which the trial court denied on
August 3, 2015.
Two further appeals and a PCRA petition followed, which we need not
discuss in detail. On April 25, 2018, following a Grazier5 hearing, the trial
court entered an order allowing counsel to withdraw and for Appellant to
proceed pro se. On July 25, 2018, the trial court restored Appellant’s right to
file post-sentence motions and a direct appeal nunc pro tunc. Appellant filed
a timely, pro se post-sentence motion on July 30, 2018.
Appellant’s post-sentence motion raised the following issues: (1) the
sentence violated his plea agreement; (2) the trial court lacked jurisdiction to
increase his sentence; (3) the trial court improperly denied his request for an
independent expert for his SVP hearing at resentencing; and (4) requested
reconsideration of his sentence. After 120 days passed, the clerk of courts
did not enter an order denying his post-sentence motion by operation of law.
Nevertheless, Appellant filed a notice of appeal on December 14, 2018. This
Court quashed the appeal because an order denying his post-sentence motion
by operation of law had not been entered. Commonwealth v. Shaffer, No.
3588 EDA 2018, 2019 WL 3384780, *1 (Pa. Super. filed July 26, 2019)
(unpublished mem.) (Shaffer II).
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5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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The Shaffer II Court remanded this case to the trial court to rule on
Appellant’s post-sentence motion. Id. at *2. The Shaffer II Court further
ordered that the motion be deemed filed nunc pro tunc as of the date the
certified record was remanded, essentially restarting the 120-day period in
which the trial court could rule on the motion. Id. Notwithstanding this
Court’s reinstatement of his July 30, 2018 post-sentence motion nunc pro
tunc, Appellant filed an additional pro se post-sentence motion on November
13, 2019.6 The trial court entered an order denying the post-sentence motion
on November 14, 2019. Appellant timely filed a notice of appeal along with a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
trial court filed a Rule 1925(a) opinion.
On appeal Appellant raises the following issues, which we summarize as
follows:
1. Did the trial court err in denying Appellant an expert witness
and a new SVP assessment to correct a lingering due process
error?
2. Did the trial court err in not sentencing Appellant to the
mandatory minimum sentence for count two in violation of his
plea agreement?
3. Did the trial court impose an illegal sentence?
4. Did the trial court err in denying Appellant’s motion for
reconsideration of sentence?
Appellant’s Brief at 10.
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6The text of the November 13, 2019 post-sentence motion is identical to that
of the July 30, 2018 post-sentence motion.
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Denial of Appointment of Expert for SVP Hearing Claim
In his first issue, Appellant asserts that the trial court erred in denying
his motion for the appointment of an expert and a new SVP hearing.
Appellant’s Brief at 23-27. Appellant argues that when this Court vacated his
2006 judgment of sentence and remanded this matter for resentencing in
Shaffer I, his SVP status was also vacated. Id. at 25 (citing Commonwealth
v. Harris, 972 A.2d 1196 (Pa. Super. 2009); Commonwealth v. Smalls,
100 EDA 2016, 2017 WL 568896 (Pa. Super. filed Feb. 13, 2017) (unpublished
mem.)). Appellant argues that the trial court erred by reimposing his SVP
status at the July 6, 2015 resentencing hearing on the basis of the original
2006 SVP hearing without holding a new SVP hearing. Id. at 26-27.
Specifically, Appellant contends that because he is an indigent defendant, the
trial court should have appointed an expert and that its failure to do so denied
him due process of law. Id. at 26-27 (citing, inter alia, Commonwealth v.
Curnutte, 871 A.2d 839 (Pa. Super. 2005), and Commonwealth v.
McWilliams, 887 A.2d 784 (Pa. Super. 2005)).
Appellant also argues that his SVP designation must be vacated
pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
(Butler I),7 Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and
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7 Our Supreme Court has since overruled this Court’s decision in Butler I,
holding that the lifetime registration, notification, and counseling
requirements (RNC requirements) applicable to SVPs under SORNA do not
constitute criminal punishment and are not punitive nor unconstitutional.
Commonwealth v. Butler, 226 A.3d 972, 993 (Pa. 2020) (Butler II).
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Commonwealth v. Luciani, 201 A.3d 802 (Pa. Super. 2018). Id. at 22.
However, Appellant does not discuss these cases in his analysis of legal
authority in his brief. Id.
The Commonwealth responds that the SVP designation was a collateral
consequence of Appellant’s conviction and was not part of this Court’s order
vacating Appellant’s judgment of sentence and remanding this matter for
resentencing. Commonwealth’s Brief at 5-6. Therefore, the Commonwealth
argues that because the trial court made its SVP determination in 2006 and
Appellant had not been granted a new SVP hearing, there was no need to
appoint an expert for the 2015 resentencing. Id. at 6. The trial court did not
address whether Appellant was entitled to a new SVP hearing at his July 6,
2015 resentencing hearing in its opinion.
When a case is remanded, “[a] trial court has an obligation to comply
scrupulously, meticulously, and completely with an order of [the appellate
court] remanding a case to the trial court.” Commonwealth v. G. Williams,
877 A.2d 471, 474 (Pa. Super. 2005). The trial court is required to “strictly
comply with the mandate of the appellate court.” Id. at 474-75 (citation
omitted). Issues not included in the mandate cannot be considered by the
trial court. Id. at 475. “To interpret the remand order, it is necessary to
examine the context of the order.” Id. at 476.
Additionally, where an appellant has already had the benefit of a direct
appeal, which resulted in remand for resentencing, any issues not raised in
his prior appeal are waived on a subsequent appeal. See Commonwealth
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v. Rominger, 199 A.3d 964, 975 (Pa. Super. 2018), appeal denied, 217 A.3d
217 (Pa. 2019); see also Commonwealth v. Anderson, 801 A.2d 1264,
1266 (Pa. Super. 2002) (stating “having been re-sentenced following remand,
[the defendant] could not file another direct appeal attacking his conviction:
the only issues reviewable in a direct appeal would be challenges to the
sentence imposed following remand.” (citations omitted)).
In Shaffer I, Appellant challenged his amended sentence. Shaffer I,
2014 WL 10558548 at *1. Appellant did not challenge the trial court’s denial
of his September 7, 2006 motion for appointment of an expert for the SVP
hearing or his designation as an SVP in his previous direct appeal; therefore
these issues are waived in the present appeal. See Rominger, 199 A.3d at
975; see also Anderson, 801 A.2d at 1266.
Additionally, in Shaffer I, this Court vacated the February 28, 2014
sentencing order and remanded for resentencing on all counts so the trial
court could consider its entire sentencing scheme. Shaffer I, 2014 WL
10558548, at *1. Reading this Court’s decision in Shaffer I in context, our
order vacating Appellant’s judgment of sentence and remanding for
resentencing cannot be read to include a new SVP hearing, and therefore,
Appellant’s claim fails. See G. Williams, 877 A.2d at 476.
Violation of Plea Agreement Claim
In Appellant’s second issue, he argues that the trial court violated his
plea agreement by sentencing him to five years and six months to twenty
years of incarceration for count two, rape of a child, when the plea agreement
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called for a mandatory minimum sentence of five to ten years. Appellant’s
Brief at 28-32. Appellant contends that he is entitled to enforce the terms of
his plea agreement. Id. at 30 (citing Commonwealth v. Hainesworth, 82
A.3d 444 (Pa. Super. 2013) (en banc)).8 Appellant argues that all of the
sentencing guideline forms state that he entered a negotiated plea agreement.
Appellant’s Reply Brief at 2-3.
The Commonwealth responds that there was no plea agreement
because Appellant entered an open plea. Commonwealth’s Brief at 5. The
Commonwealth argues that in the guilty plea colloquy, Appellant
acknowledged that he could be sentenced to up to forty years’ incarceration
for the rape of a child charge. Id. The trial court did not discuss Appellant’s
claim regarding his plea agreement in its 1925(a) opinion.
When evaluating the terms of a negotiated plea agreement, we are
guided by the following long-standing principles:
Although a plea agreement occurs in a criminal context, it remains
contractual in nature and is to be analyzed under contract-law
standards. Furthermore, disputes over any particular term of a
plea agreement must be resolved by objective standards. A
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8 Appellant also argues that the SOAB report used the definition of a predatory
act from Megan’s Law III instead of the definition from Megan’s Law II, which
was used in his guilty plea colloquy. Appellant’s Brief at 32. Appellant claims
this is also a breach of his plea agreement and invalidates the SOAB report in
its entirety. Id. This issue was not raised at the July 6, 2015 sentencing
hearing nor was it included in Appellant’s July 30, 2018 post-sentence motion,
and new issues may not be raised for the first time on appeal. See
Commonwealth v. P.L.S., 894 A.2d 120, 132 (Pa. Super. 2006) (holding
issues related to SVP hearing not raised at the hearing or a post-sentence
motion are waived); see also Pa.R.A.P. 302(a).
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determination of exactly what promises constitute the plea
bargain must be based upon the totality of the surrounding
circumstances and involves a case-by-case adjudication.
Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (citations
omitted); see also Hainesworth, 82 A.3d at 447.
Instantly, Appellant’s written guilty plea colloquy states that in exchange
for Appellant pleading guilty to the agreed upon counts, the Commonwealth
would nolle prosse or withdraw the remaining charges. Nothing in the written
colloquy indicates that the Commonwealth would recommend a sentence of
five to ten years for the charge of rape of a child.9 The notes of testimony
from the guilty plea hearing indicate that the Commonwealth did not make
any promises to Appellant except that to withdraw the remaining charges.
N.T. Guilty Plea Hr’g, 5/12/06, at 10. Appellant further acknowledged that
the trial court could impose a sentence of up to forty years’ incarceration on
the charge of rape of a child. Id. at 11. Based on our review of the record,
we conclude that Appellant’s argument that a plea agreement existed for a
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9 Appellant refers to several questions on page nine of his written guilty plea
colloquy, which asks if he understands that the Commonwealth would seek a
mandatory minimum sentence of five years for the charge of rape of a child
and the trial court is required to impose that mandatory minimum sentence
as proof of the aforementioned agreement for a sentence of five to ten years.
Appellant’s Brief at 28-29. We cannot agree with this interpretation. These
questions exist to ensure that Appellant understands that he is subject to a
mandatory minimum sentence to ensure that his plea is knowingly,
intelligently, and voluntarily tendered. See Commonwealth v. Broaden,
980 A.2d 124, 129-30 (Pa. Super. 2009) (stating the requirement that a
defendant must be informed of the Commonwealth’s intention to seek a
mandatory minimum sentence before entering a guilty plea).
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sentencing recommendation of five to ten years’ incarceration for the charge
of rape of a child is not supported by the record and is meritless. See Kroh,
654 A.2d at 1172; see also Hainesworth, 82 A.3d at 447. Accordingly,
Appellant is not entitled to relief on this claim.
Double Jeopardy Claim
In his third issue, Appellant claims that his sentence is illegal because it
violates constitutional double jeopardy protections prohibiting an increased
aggregate sentence following a post-remand resentencing. Appellant’s Brief
at 34. Appellant alleges that the trial court erred by imposing a sentence of
two to five years’ imprisonment on count seventeen, aggravated indecent
assault, consecutive to count twelve, instead of count two, thus increasing his
aggregate minimum sentence by two years and his aggregate maximum
sentence by five years.10 Id. Neither the Commonwealth nor the trial court
addressed Appellant’s double jeopardy claim.
“[W]e have held that if a trial court errs in its sentence on one count in
a multi-count case, then all sentences for all counts will be vacated so that
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10 Appellant also alleges that the trial court’s imposition of an illegal sentence
is proof of judicial vindictiveness. Appellant’s Brief at 34. A claim of
vindictiveness is not a challenge to legality of the sentence; rather, it is a
waivable challenge to the discretionary aspects of the sentence. See
Commonwealth v. Robinson, 931 A.2d 15, 22 (Pa. Super. 2007) (en banc).
Appellant failed to include this claim within his Rule 2119(f) statement and
meaningfully develop his argument. Therefore, although we liberally construe
his pro se brief, we hold Appellant waived this claim. See id.; see also
Commonwealth v. Vurimindi, 200 A.3d 1031, 1037-38 (Pa. Super. 2018),
appeal denied, 217 A.3d 793 (Pa. 2019).
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the court can restructure its entire sentencing scheme[]” if the invalidity of
the sentence would have affected the trial court’s sentencing on the remaining
counts. Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999)
(citation omitted). Furthermore, “a vacated sentence is a nullity and the
defendant is restored to the status of unsentenced; thus for purposes of
double jeopardy analysis the vacated sentence does not limit the sentencing
court.” Commonwealth v. Johnson, 967 A.2d 1001, 1006 (Pa. Super.
2009) (citation omitted).
When the Shaffer I Court vacated Appellant’s judgment of sentence,
the original sentence became a legal nullity, and the trial court was free to
impose any legal sentence without violating Appellant’s double jeopardy
rights. See id. Accordingly, the trial court’s July 6, 2015 judgment of
sentence did not impose an illegal sentence that violated Appellant’s double
jeopardy rights, and Appellant is not entitled to relief on this claim.11 See id.____________________________________________
11 Furthermore, Appellant’s double jeopardy claim is premised on his belief
that his 2006 aggregate sentence was fourteen years and six months to forty
years based on how the trial court structured the consecutive sentences. See
Appellant’s Brief at 33-34. Appellant’s argument does not acknowledge the
plain language of the sentencing order, which states his “total sentence is
[sixteen] years, [six] months to [forty-five] years.” Order, 9/12/06, at 2.
After the trial court granted Appellant’s PCRA petition in part, the court
reduced his aggregate sentence to sixteen years to forty-five years. Order,
2/28/14. Appellant was resentenced to an aggregate sentence of sixteen
years to forty-five years’ incarceration. Order, 7/6/15, at 2. Appellant’s new
sentence was not greater than his February 28, 2014 amended sentence.
When the aggregate term of imprisonment did not increase upon
resentencing, a double jeopardy violation is not implicated. See, e.g.,
Commonwealth v. Sutton, 583 A.2d 500, 502-03 (Pa. Super. 1990)
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Discretionary Aspects of Sentence Claims
Appellant also challenges the discretionary aspects of his sentence on
several grounds. He argues that the trial court abused its discretion by
“mechanically” resentencing him to the same sentences that were previously
imposed without acknowledging any of Appellant’s rehabilitative progress
since the original sentencing hearing. Appellant’s Brief at 21-22, 33-36.
Appellant specifically argues that the trial court “failed to place on the record
any specific redemptive item that weighed into its decision to arrive at the
sentence imposed. The trial court simply stated that it had read the pre
sentence report and documents provided to him by [Appellant.]” Id. at 36
(formatting altered).
The Commonwealth responds that the trial court had the benefit of a
PSI and “the law presumes that the [trial c]ourt was aware of the relevant
information regarding [A]ppellant’s environment and had weighed those
considerations along with any mitigating factors delineated in the sentencing
code.” Commonwealth’s Brief at 5 (citation omitted). In its Rule 1925(a)
opinion, the trial court stated that Appellant’s challenges to the discretionary
aspects of his sentence were outside the scope of the remand for resentencing
and were thus without merit. Trial Ct. Op., 1/29/20, at 4.
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(declaring that “no double jeopardy violation is implicated where the
aggregate sentence upon resentencing does not exceed the original aggregate
sentence” (citation omitted)).
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“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citation omitted). Before reaching the merits of such
claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted). “To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “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. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
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Appellant presents nine issues challenging his resentencing in his Rule
2119(f) concise statement, which we summarize as follows:
1. The trial court imposed an illegal sentence that violated
Appellant’s right against double jeopardy.
2. The trial court erred in not appointing a psychological expert
for Appellant in the SVP hearing.
3. The trial court did not consider Appellant’s rehabilitative
accomplishments during time Appellant was incarcerated.
4. The trial court erred in not consider whether to impose some
sentences concurrently instead of consecutively.
5. The trial court erred by mechanically resentencing Appellant to
his previous sentence without considering changed circumstances.
6. The trial court based its sentence solely on the seriousness of
the offenses.
7. The trial court erred by mechanically resentencing Appellant to
his previous sentence without considering Appellant’s claim that
his previous sentence was illegal.
8. The trial court erred by designating Appellant a SVP.
9. The trial court erred in its calculation of the offense gravity
score for the charge of rape of a child.
Appellant’s Brief at 21-22.
Appellant's appeal is timely. We next determine whether Appellant has
preserved his claims. Issues one, two, three, four, five, seven, and eight have
been preserved as they were included in Appellant’s post-sentence motion.
See Post-Sentence Mot., 7/30/18, at 1-5. We conclude that Appellant waived
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issues six and nine because they were not presented in his post-sentence
motion. See Malovich, 903 A.2d at 1251.
We resolved some of Appellant’s preserved claims above; specifically,
issues one, two, and eight concerning his SVP hearing and double jeopardy
claims. However, Appellant’s fourth issue, the claim that the sentencing court
erred by imposing consecutive rather than concurrent sentences, does not
ordinarily present a substantial question for our review. See
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en
banc) (stating “[a] court’s exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a substantial question.”
(citation omitted)). Appellant claims in issues three, five, and seven that the
trial court mechanically reimposed his prior sentence without considering
mitigating evidence and Appellant’s rehabilitative progress since his original
sentencing. Accordingly, Appellant’s issues present a substantial question for
our review. See Commonwealth v. Serrano, 150 A.3d 470, 473-74 (Pa.
Super. 2016) (holding that a resentencing court should not mechanically
reimpose the previous judgment of sentence without making an independent
reevaluation of the Sentencing Code’s criteria).
Our well-settled standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
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judgments for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted). “Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c) and (d).” Id.
Subsection 9781(c) provides:
(c) Determination on appeal.—The appellate court shall vacate the
sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider the provisions of subsection
9781(d):
(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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42 Pa.C.S. § 9781(d).
Where a sentence is imposed within the guidelines, we may only reverse
the trial court if we find that the circumstances of the case rendered the
application of the guidelines “clearly unreasonable.” Raven, 97 A.3d at 1254
(citing 42 Pa.C.S. § 9781(c)(2)). Our review of the reasonableness is based
upon the factors contained in 42 Pa.C.S. § 9781(d) and the trial court’s
consideration of the general sentencing standards contained in 42 Pa.C.S. §
9721(b).12 See Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super.
2013).
“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. Rush, 162 A.3d 530, 544 (Pa. Super. 2017) (citation and
quotation marks omitted). Further, where a PSI exists, “we shall presume
that the sentencing judge was aware of the relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa.
Super. 2018) (citation omitted), appeal denied, 206 A.3d 1029 (Pa. 2019).
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12 Section 9721(b) states that “the sentence imposed should call for
confinement that is 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.” 42 Pa.C.S. §
9721(b).
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We have also explained:
When a sentence is vacated and the case is remanded to the
sentencing court for resentencing, the sentencing judge should
start afresh. Reimposing a judgment of sentence should not be a
mechanical exercise. Given the important nature of the interests
involved, the judge at the second sentencing hearing should
reassess the penalty to be imposed on the defendant-especially
where defense counsel comes forward with relevant evidence
which was not previously available. Thus, [defendant’s] conduct
since the prior sentencing hearing is relevant at resentencing. The
sentencing judge must take note of this new evidence and
reevaluate whether the jail term which appellant received is a just
and appropriate punishment.
Serrano, 150 A.3d at 473 (citations omitted and some formatting altered).
The Serrano Court vacated the judgment of sentence and remanded for
another resentencing when the sentencing judge on the prior remand stated
on the record that he viewed his role at the resentencing hearing was not to
exercise independent judgment, and instead referred to the original
sentencing judge’s sentence several times. Id. at 474.
Here, at sentencing, the trial court stated:
[Appellant,] I’ve read every page of your Pre-Sentence Report
there are 14 narrative pages, computation, and sentencing
guidelines, sentencing recommendation to the [c]ourt, a host of
letters from you and others on your behalf. A several page
document called Allocution, several page document called
Defendant’s Versions of Offenses, Closing Statement for June 25,
2014 Re-Sentencing. I have Closing Statement for June 25 Re-
Sentencing – multiple pages. I have letters, I have False or
Misleading Information Used Against Defendant Listing of
Objections and Responses to Them Parts 1, 2, and 3. I have all
that information and I read every bit of it.
[Appellant], you were originally sentenced by Judge Conway.
* * *
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You have nine years, five months and twenty six days of credit
toward whatever sentence I do impose. You did plead guilty,
which I do take to your credit, sir.
You can’t read what you did to this young woman without feeling
nauseated by the acts. You contend that you told her all the time
if she was uncomfortable to tell somebody else what was going
on. That was one of the themes that you stressed in all your
papers that you sent to me. I don’t know whether you think that
made it okay. You were found to be a sexually violent predator.
This was a one and a half year series of offenses against a 12 or
13 year old girl. Just horrible. Horrible.
N.T. Sentencing Hr’g, 7/6/15, at 8-9.
Following our review, we discern no merit to Appellant’s argument that
the trial court mechanically reimposed the previous sentence and failed to
consider his individual circumstances. Our review of the record indicates that
the trial court was informed by Appellant’s updated PSI, which it reviewed
prior to sentencing, and was aware of and properly weighed the mitigating
sentencing factors. See Conte, 198 A.3d at 1177; Serrano, 150 A.3d at
473-74. Moreover, the trial court stated its reasoning on the record and was
not required to give a lengthy explanation for its sentence. See Rush, 162
A.3d at 544. Accordingly, having reviewed the parties’ arguments, the trial
court’s reasoning, and the record, we find no merit to Appellant’s claims that
the trial court abused its discretion in imposing an aggregate sentence of
sixteen to forty-five years’ imprisonment upon resentencing. Accordingly,
Appellant’s challenge to the discretionary aspects of his sentence fails. See
Raven, 97 A.3d at 1253.
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Denial of Post-Sentence Motion Claim
Lastly, Appellant claims that the trial court erred in denying his July 15,
2015 post-sentence motion. Appellant’s Brief at 37-40. In that motion,
Appellant argued that the December 14, 2012 and February 28, 2013 orders
amending his prior sentence violated the prohibition against double jeopardy
and were illegal under 42 Pa.C.S. § 5505. Id. at 37-40. As discussed
previously, when this Court vacated Appellant’s previous sentence in Shaffer
I, that sentence became a legal nullity. See Johnson, 967 A.2d at 1006.
Furthermore, our review is limited to the issues encompassed within the
remand order concerning Appellant’s resentencing. See Rominger, 199 A.3d
at 975; see also Anderson, 801 A.2d at 1266. Because Appellant’s post-
sentence motion challenges the original sentence and not the sentence
imposed following remand, that claim is not properly before this Court. See
id.13 For the foregoing reasons, we affirm the trial court’s judgment of
sentence.
Judgment of sentence affirmed.
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13 Appellant further argues that the trial court erred in denying his post-
sentence motion with respect to his claim that the July 6, 2015 sentence
violated his plea agreement. Appellant’s Brief at 37-38. We addressed this
claim above.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/20
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