J-S28023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.


_____________________________

*    Retired Senior Judge assigned to the Superior Court.
J-S28023-19



       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

____________________________________________


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.

                                           -2-
J-S28023-19



       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




____________________________________________


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).


                                           -3-
J-S28023-19



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

                                      -4-
J-S28023-19



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
____________________________________________


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.

                                           -5-
J-S28023-19



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



____________________________________________


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).




                                           -6-
J-S28023-19



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

____________________________________________


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).

                                           -7-
J-S28023-19



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

____________________________________________


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).




                                           -8-
J-S28023-19



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




____________________________________________


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.

                                           -9-
