J-S20044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ZACHARY EVAN SMITH                         :
                                               :
                       Appellant               :       No. 17 WDA 2019

         Appeal from the Judgment of Sentence Entered July 19, 2017
              In the Court of Common Pleas of Jefferson County
            Criminal Division at No(s): CP-33-CR-0000402-2016


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                           FILED APRIL 29, 2019

       Appellant, Zachary Evan Smith, appeals nunc pro tunc from the

judgment of sentence entered in the Jefferson County Court of Common Pleas,

following his jury trial convictions for possession with intent to deliver

(“PWID”) and possession of a controlled substance, and his bench trial

convictions for disregarding traffic lanes and speeding.1 We affirm.

       The relevant facts and procedural history of this case are as follows. On

January 17, 2016, Appellant crashed his vehicle on Interstate 80. Emergency

responders noticed footprints in the snow from the car to the woods and told

police this information when they arrived. Police followed the footprints and

found a backpack that contained cocaine sitting behind a tree.            Police

____________________________________________


1 35 P.S. §§ 780-113(a)(30), (a)(16); 75 Pa.C.S.A. §§ 3309(1), 3361,
respectively.
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connected Appellant to the backpack. The Commonwealth charged Appellant

with PWID and other offenses related to the incident. On November 9, 2016,

Appellant filed a motion to suppress the backpack.        The court denied the

suppression motion on February 2, 2017. On June 20, 2017, a jury convicted

Appellant of PWID and possession of a controlled substance; and the court

convicted Appellant of the traffic offenses. The court sentenced Appellant with

the benefit of a Presentence Investigation (“PSI”) Report on July 19, 2017, to

an aggregate term of 54 months’ to 10 years’ imprisonment. Appellant timely

filed a post-sentence motion on Monday, July 31, 2017. The court denied the

post-sentence motion on August 8, 2017.

        On October 20, 2017, Appellant timely filed pro se a petition pursuant

to the Post-Conviction Relief Act (“PCRA”),2 which requested reinstatement of

his direct appeal rights nunc pro tunc. The PCRA court appointed counsel on

November 1, 2017, and held a hearing on May 29, 2018. On September 6,

2018, the PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc.

Appellant timely filed a direct appeal nunc pro tunc on September 19, 2018.

On September 21, 2018, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely filed a Rule 1925(b) statement on September 24, 2018.

        Appellant raises the following issue for our review:

           DID THE TRIAL COURT ABUSE ITS DISCRETION IN
____________________________________________


2   42 Pa.C.S.A. §§ 9541-9546.

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           ENTERING ITS JULY 19, 2017 SENTENCING ORDER IN THE
           WITHIN CASE?

(Appellant’s Brief at 3).

         Appellant argues the court imposed a blanket sentence based on his

convictions and did not consider the particular facts and circumstances of his

case.     Appellant submits the court’s lack of meaningful consideration of

Appellant’s situation resulted in an unreasonable sentence.        As presented,

Appellant challenges the discretionary aspects of his sentence.                  See

Commonwealth v. Mola, 838 A.2d 791 (Pa.Super. 2003) (stating claim that

court     imposed   blanket   sentence    challenges   discretionary   aspects    of

sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super.

1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that

sentencing court failed to consider or did not adequately consider certain

factors implicates discretionary aspects of sentencing).

         Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing

issue:

           [W]e conduct a four-part analysis to determine: (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).

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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

      When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial question

as to the appropriateness of the sentence under the Sentencing Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The requirement that an appellant separately set forth the reasons

relied upon for allowance of appeal furthers the purpose evident in the

Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision to

exceptional cases.”      Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks

omitted).

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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

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process.” Sierra, supra at 912-13. A claim that a sentence is manifestly

excessive might raise a substantial question if the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence imposed

violates a specific provision of the Sentencing Code or the norms underlying

the sentencing process. Mouzon, supra at 435, 812 A.2d at 627. Generally,

“[a]n allegation that a sentencing court failed to consider or did not adequately

consider certain factors does not raise a substantial question that the sentence

was inappropriate.” Cruz-Centeno, supra at 545 (internal quotation marks

omitted). A claim that the court imposed a blanket sentencing policy does

raise a substantial question of whether the sentence violates the Sentencing

Code. Mola, supra at 793.

      Instantly, Appellant properly preserved his discretionary aspects of

sentencing claim in his post-sentence motion and Rule 2119(f) statement.

See Evans, supra. Appellant’s Rule 2119(f) statement articulated his claim

regarding the court’s alleged use of a blanket policy for drug dealers, which

arguably raises a substantial question for our review. See Mola, supra.

      Our standard of review concerning the discretionary aspects of

sentencing 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 judgment for reasons of


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         partiality, prejudice, bias or ill will, or arrived at a manifestly
         unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005).

      Pursuant to Section 9721(b), “the court shall follow the general principle

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.A. § 9721(b). “[T]he court shall make as

part of the record, and disclose in open court at the time of sentencing, a

statement of the reason or reasons for the sentence imposed.” Id. The record

as a whole must reflect the sentencing court’s consideration of the facts of the

case and the defendant’s character. Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010). “In particular, the court should refer to the defendant’s prior criminal

record, his age, personal characteristics and his potential for rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied,

582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct.

2984, 162 L.Ed.2d 902 (2005).

      Here, the trial court had the benefit of a PSI report at sentencing and

stated its reasons for Appellant’s sentence on the record. Therefore, we can

presume the court considered the relevant facts when sentencing Appellant.

See Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating

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where sentencing court had benefit of PSI, law presumes court was aware of

and weighed relevant information regarding defendant’s character and

mitigating factors).

      The trial court addressed Appellant’s discretionary aspects of sentencing

claim as follows:

         Here it is unnecessary to make a presumption based on the
         existence of a [PSI], because the record clearly reflects that
         the [c]ourt did in fact consider [Appellant] as an individual,
         not merely as a statistic to be included in a “blanket
         sentencing policy” regarding a specified class of drug
         offenders.

         In possession of [Appellant’s PSI] report and having
         presided at his omnibus hearing and trial, the [c]ourt was
         well aware of his personal circumstances and acknowledged
         a variety of his characteristics and behaviors as inherently
         positive. [The court] was not sentencing [Appellant] in a
         vacuum, though; it was sentencing him for committing a
         crime that, in light of those circumstances and
         characteristics, could only be explained as a crime
         motivated by greed. In that regard, [the court] was acutely
         aware that [Appellant] did not fit the typical drug-dealer
         mold─that he was not an addict trying to feed his addiction
         or a young man with an unfortunate upbringing and limited
         opportunities who viewed the drug trade as his best chance
         for success.       And it was [Appellant’s] individual
         circumstances; it was the fact that he was a “good kid”
         without a reasonable excuse for getting involved in the drug
         trade; it was the deliberative nature of a young man not
         driven by addiction facilitating the sale of a substantial
         quantity of crack cocaine that informed the [c]ourt’s
         sentencing decision. Speaking directly to [Appellant] before
         announcing the sentence, [the court] clearly stated as
         much.

         [Appellant] plainly does not agree that the circumstances
         warranted a 4½ year minimum. [Appellant] thinks his
         essentially untainted history entitled him to a lesser
         sentence and is effectively asking the Superior Court to

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        reassess the circumstances and weigh in his favor factors
        this [c]ourt already deemed to be aggravating. To that end,
        [Appellant] couches his request in appropriate legal terms,
        alleging that the [c]ourt imposed a “blanket sentencing
        policy” that overlooked him as an individual. The record
        says differently, though, as the record reflects an
        individualized sentence in which the [c]ourt took account of
        and conscientiously weighed the relevant sentencing
        factors. As such, [the record] reflects a sentence that was
        not unreasonable and should be affirmed as an appropriate
        exercise of the [c]ourt’s sentencing discretion.

(Trial Court Opinion, filed September 25, 2018, at 1-2) (internal citations

omitted). The record supports the trial court’s rationale. See Crump, supra;

Hyland, supra. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2019




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