J-S73018-16


                                  2016 PA Super 246

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MICHAEL SERRANO

                            Appellant                   No. 204 WDA 2016


           Appeal from the Judgment of Sentence January 15, 2016
                In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0000099-2011


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

OPINION BY LAZARUS, J.:                            FILED NOVEMBER 15, 2016

        Michael Serrano appeals from the judgment of sentence imposed in

the Court of Common Pleas of Blair County after a jury found him guilty of

various drug trafficking crimes.        Upon careful review, we vacate Serrano’s

judgment of sentence and remand for resentencing.

        On October 27, 2011, Serrano was convicted of one count each of

delivery of a controlled substance,1 possession with intent to deliver a

controlled substance (“PWID”),2 conspiracy – PWID,3 and criminal use of a

communication facility.4 The Honorable Thomas G. Peoples, Jr., imposed an
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1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S.A. § 903.

(Footnote Continued Next Page)
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aggregate sentence of 31 to 82 years’ incarceration on March 15, 2012.

Serrano appealed to this Court, which, on February 4, 2013, vacated his

conviction for delivery of a controlled substance because the verdict slip

incorrectly indicated “cocaine” rather than “heroin.”      The matter was

remanded to the trial court for resentencing.

        On April 24, 2013, Judge Peoples resentenced Serrano to an aggregate

sentence of 26 to 52 years’ imprisonment as follows: for PWID, a term of

incarceration of 15 to 30 years; for conspiracy, 7½ to 15 years in prison;

and for criminal use of a communications facility, 3½ to 7 years

imprisonment.      Upon appeal to this Court, Serrano’s sentence, which

included a mandatory minimum sentence for PWID pursuant to 18 Pa.C.S.A.

§ 7508, was vacated as illegal in light of the U.S. Supreme Court’s decision

in Alleyne v. United States, 133 S. Ct. 2151 (2013).        The matter was

again remanded for resentencing.

        In the interim, Judge Peoples passed away and the case was

reassigned to the Honorable Timothy M. Sullivan for resentencing.     Judge

Sullivan ordered an updated presentence investigation (“PSI”) and, on

January 15, 2016, imposed the same sentence Judge Peoples had imposed,

but found Serrano to be Recidivism Risk Reduction Incentive 5 eligible.


                       _______________________
(Footnote Continued)
4
    18 Pa.C.S.A. § 7512.
5
    61 Pa.C.S.A. §§ 4501-4512



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Serrano filed post-sentence motions, which the trial court denied by order

dated January 29, 2016.

       This timely appeal follows, in which Serrano raises the following issues

for our review:6

       1. Whether the sentencing court erred and abused its discretion
       by failing to consider evidence of [Serrano’s] rehabilitation while
       incarcerated, his rehabilitative needs and protection of the
       public, as set forth in 42 Pa.C.S.A. [§] 9721(b), which resulted in
       an excessive sentence?

       2. Whether the sentencing court erred and abused its discretion
       by relying on the previous sentencing court’s determination and
       by not conducting an independent review of the evidence
       presented at sentencing, as it does not constitute a sufficient
       reason for imposing sentence?

       3. Whether the sentencing court erred and abused its discretion
       by basing . . . Serrano’s sentence on the seriousness of the
       offense alone, without taking into account evidence of other
       relevant sentencing criteria, which does not constitute a
       sufficient reason for imposing a sentence?

       4. Whether the sentencing court erred and abused its discretion
       by imposing consecutive terms of statutory maximum sentences,
       rather than a standard guideline range sentence, which may
       result in disparate sentence[s] between co-defendants, since the
       Commonwealth did not specifically recommend maximum terms
       and indicated . . . Serrano’s more culpable co-defendant Gene
       Carter may very well receive a sentence within the standard
       range of his sentencing guidelines?

Brief of Appellant, at 4-5.



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6
   In his statement of questions involved, Serrano raises five issues.
However, the fifth and final issue is merely an amalgamation of the previous
four issues and, accordingly, will not be addressed separately.



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      All of Serrano’s appellate claims challenge the discretionary aspects of

his sentence. Such claims do not entitle an appellant to review as a matter

of right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015).

Rather, before this Court can address such discretionary challenges, an

appellant must comply with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

      Here, Serrano filed a post-sentence motion raising his sentencing

claims, followed by a timely notice of appeal to this Court.     He has also

included in his brief a concise statement of reasons relied upon for allowance

of appeal with respect to the discretionary aspects of his sentence pursuant

to Pa.R.A.P. 2119(f). Accordingly, we must now determine whether he has

raised a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

      This Court has previously found a substantial question to be raised

where an appellant alleged that the sentencing court: (1) failed to consider

relevant sentencing criteria, including the protection of the public, the

gravity of the underlying offense and the rehabilitative needs of appellant,

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see Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012); (2)

failed     to     consider      the   defendant’s    individualized     needs,   see

Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008); (3)

focused solely on the seriousness of the offense in crafting the sentence,

see Commonwealth v. Culverson, 34 A.3d 135, 146 (Pa. Super. 2011);

and      (4)    imposed    an   excessive    aggregate    sentence    by   sentencing

consecutively in light of the criminal conduct at issue and where co-

defendants were           sentenced more     leniently,   see Commonwealth v.

Mastromarino, 2 A.3d 581, 587-89 (Pa. Super. 2010).                   Accordingly, we

find that Serrano has raised substantial questions and will proceed to review

the merits of his claims.

         We first address Serrano’s claim that the sentencing court erred and

abused its discretion by relying on the previous sentencing court’s

determination and by not conducting an independent review of the evidence

presented at sentencing. For the following reasons, we agree that the court

abused its discretion and remand, once again, for resentencing.

         When a sentence is vacated and the case is remanded to the
         sentencing court for resentencing, the sentencing judge should
         start afresh. Commonwealth v. Losch, [] 535 A.2d 115 (Pa.
         Super. 1987). “Reimposing a judgment of sentence should not
         be a mechanical exercise.” Id. [] at 122. “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.” Id.
         Thus, [appellant’s] conduct since the prior sentencing hearing is
         relevant at resentencing. Id. [] at 123. The sentencing judge
         must take note of this new evidence and reevaluate whether the


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     jail term which [appellant] received is a just and appropriate
     punishment. Id.

Commonwealth v. Jones, 640 A.2d 914, 919–20 (Pa. Super. 1994).

These directives are particularly salient where, as here, the resentencing

judge did not preside over the defendant’s previous sentencing proceeding

and is not personally familiar with the defendant and his background,

offenses and character.      Accordingly, the new presiding judge must

familiarize himself with the defendant, the offense, and the attendant

circumstances of the case.

     In this case, it is abundantly clear that Judge Sullivan mechanically

reimposed the sentence originally handed down by Judge Peoples without

making any independent reassessment or reevaluation of the sentencing

criteria set forth in the Sentencing Code. Indeed, the court plainly conceded

as much:

     BY THE COURT: . . . I view my role as not to come in here
     and make an independent judgment upon your case. All
     right? Judge Peoples is the one who presided over your trial.
     Judge Peoples is the one who heard all the evidence. Judge
     Peoples is the one who considered all the evidence that was
     adduced during the trial and heard the arguments from [counsel]
     and he imposed sentence as he did. Of course, it was taken up
     on appeal and remanded. Judge Peoples imposed a substantial
     sentence the second time around. Again, it was taken up on
     appeal and remanded back. I don’t view my role as taking
     an independent look at the case. I view my role as reviewing
     the evidence, trying to determine what Judge Peoples, who was
     the presiding trial judge and the original sentencing judge, what
     his intention was at the time he imposed sentence. Mr. Serrano,
     I’m fully satisfied, practicing before Judge Peoples and knowing
     Judge Peoples, it was his intention to impose the statutory
     maximum upon you for each and every one of these counts for
     which you were convicted. I disagree with the Superior Court

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       with all due respect. I don’t believe Judge Peoples in any way
       was swayed by the mandatory minimums that at one time were
       in place and were overruled by the United States Supreme Court
       decision in Alleyne. I don’t think that played any part in Judge
       Peoples’ decision or his analysis in imposing sentence upon you.
       I am fully satisfied it was Judge Peoples’ intention to impose the
       statutory maximum sentence upon you. So, in light of that, I
       will enter this Sentencing Order.

N.T. Sentencing, 1/15/16, at 20-21 (emphasis added).                The order that

followed was, essentially, a word-for-word recitation of Judge Peoples’

sentencing order from April 24, 2013.

       As the foregoing reveals, at sentencing, Judge Sullivan declined to

make any findings of his own demonstrating that Serrano’s sentence was

individualized and “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.”7 42 Pa.C.S.A. §

9721(b). Instead, he deferred entirely to what he speculated to have been

the judgment of a deceased jurist. This is especially concerning in a case,

such as here, where the prior judge sentenced Serrano under a mandatory

minimum      sentencing      scheme     that   has   since   been   deemed   to   be

unconstitutional. Judge Sullivan’s duty at resentencing was not to channel

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7
   In its Pa.R.A.P. 1925(a) opinion, the sentencing court expanded on its
purported reasons for imposing the sentence it did. However, a sentencing
court’s reasons for a particular sentence must be given contemporaneously
with the imposition of the sentence. Commonwealth v. Plasterer, 529
A.2d 37, 39 (Pa. Super. 1987). A more extensive explanation in an opinion
filed pursuant to Rule 1925(a) will not cure a failure to articulate reasons at
the time of sentencing. Id.



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the presumed intent of Judge Peoples, but rather to perform an independent

assessment of the record as a whole, as well as the evidence presented in

the PSI and by the parties at sentencing.        Indeed, we note that the

prosecutor, himself, stated that the Commonwealth had “reservations” about

the court sentencing Serrano to the statutory maximum, given that his more

culpable co-defendant would likely be sentenced within the standard range

of the guidelines by another judge. See N.T. Sentencing, 1/15/16, at 4-5.

      While the court stated that it was in possession of and had reviewed

an updated PSI, and while Serrano was given the opportunity to present

evidence on his own behalf, we simply cannot ignore the court’s outright

admission that it did not believe its role was to “take an independent look at

the case.”    N.T. Sentencing, 1/15/16, at 21.     It is clear that the court

believed that, under the unique circumstances of this case, its obligation was

simply to effectuate the intent of the prior sentencing judge. This was not

only an abuse of the court’s discretion, but a complete failure to exercise

that discretion.

      Accordingly, we are constrained to vacate Serrano’s judgment of

sentence and remand for resentencing.     Upon   remand,    the   trial   court

“should start afresh” and “reassess the penalty to be imposed” on Serrano.

Jones, 640 A.2d at 919–20.




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       Judgment of sentence vacated.           Case remanded for resentencing in

accordance with the dictates of this opinion.8 Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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8
  Because we grant Serrano relief on this issue, we need not address his
remaining claims on appeal.



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