J-A14008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILLIP FOXX                               :
                                               :
                       Appellant               :   No. 1450 WDA 2017

             Appeal from the Judgment of Sentence July 25, 2017
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0011573-1993,
                            CP-02-CR-0013472-1993


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED OCTOBER 04, 2019

       Phillip Foxx appeals from the judgment of sentence imposed on July 25,

2017, in the Allegheny County Court of Common Pleas, after he was

resentenced pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), for his

1994 jury convictions of second-degree murder, two counts of robbery, and

one count each of aggravated assault, recklessly endangering another person

(“REAP”), criminal conspiracy, and carrying a firearm without a license.1 On

appeal, Foxx raises two arguments concerning the discretionary aspects of his

resentencing. Upon review, we affirm.


____________________________________________


1  18 Pa.C.S. §§ 2502(b), 3701(a)(1), 2702(a), 2705, 903(a)(1), 6106(a),
respectively.
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      A panel of this Court previously set forth the factual history as follows:

      The charges arose from an incident that occurred on September
      9, 1993 on Lamont Street in the Northside section of Pittsburgh.
      At that time, [Foxx] and an accomplice lured two pizza
      deliverymen in order to rob them. Although the deliverymen did
      not resist, [Foxx] and his accomplice nevertheless mercilessly
      attempted to execute both men, killing one and wounding the
      other. [Foxx] was a juvenile at the time of the crime.

Commonwealth v. Foxx, 97 A.3d 815 [848 WDA 2012] (Pa. Super. 2014)

(unpublished memorandum).

      Foxx was charged with one count of criminal homicide at Criminal

Docket No. CP-02-CR-0011573-1993 (“Docket No. 11573-1993”).             He was

also charged with two counts of robbery and one count each of aggravated

assault, REAP, criminal conspiracy, and carrying a firearm without a license at

Criminal Docket No. CP-02-CR-0013472-1993 (“Docket No. 13472-1993”).

On June 22, 1994, the case proceeded to a jury trial where Foxx was joined

by his accomplice, Dorian Lamore. On June 28, 1994, the jury found Foxx

guilty of second-degree murder at Docket No. 11573-1993 and all charges at

Docket No. 13472-1993.      On July 25, 1994, the court sentenced Foxx as

follows: (1) a term of life imprisonment without parole for the second degree

murder offense; (2) a term of 10 to 20 years’ incarceration for the robbery,

to be served consecutively; (3) a term of 10 to 20 years’ incarceration for the

aggravated assault, to be served consecutively; and (4) a term of five to 10




                                     -2-
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years’ imprisonment for the criminal conspiracy, to be served consecutively.

No further penalty was imposed with respect to the remaining convictions.2

       On April 24, 1996, this Court affirmed the judgment of sentence; and

on November 15, 1996, the Pennsylvania Supreme Court denied his petition

for allowance of appeal. Commonwealth v. Foxx, 679 A.2d 251 (Pa. Super.

1996)     (unpublished       memorandum)         (“Foxx   I”),   appeal   denied,

Commonwealth v. Lamore, 686 A.2d 1309 (Pa. 1996).

       On March 15, 1999, Foxx filed his first petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. On January 22,

2001, the petition was denied and dismissed, and no appeal was taken. Foxx

filed a second PCRA petition, which was denied on October 13, 2005, and no

appeal was taken. On July 13, 2010, Foxx then filed his third PCRA petition,

which was dismissed on April 26, 2012.3 A panel of this Court affirmed the

order on February 26, 2014, and the Pennsylvania Supreme Court denied his

petition for allowance of appeal. See Commonwealth v. Foxx, 97 A.3d 815

[848 WDA 2012] (Pa. Super. 2014) (unpublished memorandum), appeal

denied, 97 A.3d 743 (Pa. 2014).



____________________________________________


2 Foxx filed post-sentence motions, which were denied on December 12,
1994.

3 When Foxx filed his third PCRA petition, the matter was reassigned to the
present presiding judge, the Honorable Edward J. Borkowski.



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       On March 28, 2014, Foxx filed his fourth PCRA petition. The PCRA court

appointed counsel, who filed an amended PCRA petition on March 24, 2016,

asserting Foxx’s life without parole sentence was unconstitutional pursuant to

Miller, supra,4 and Montgomery, supra.5 In its response to the petition,

the Commonwealth admitted that resentencing was necessary in light of

Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II).6


____________________________________________


4  The Miller Court held that “mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” Id. at 465. The Court also
held that a trial court is not foreclosed from imposing a sentence of life
imprisonment without parole on a juvenile; however, before doing so the court
is required to “take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in
prison.” Id. at 480.

In response to Miller, in October of 2012, the Pennsylvania legislature
enacted 18 Pa.C.S.A. § 1102.1. The statute provides that juvenile offenders
convicted of first- or second-degree murder must receive a mandatory
minimum sentence between 25-35 years depending on the age of the juvenile
offender. See 18 Pa.C.S. § 1102.1(a), (c). However, the statute applies only
to those “convicted after June 24, 2012.” 18 Pa.C.S. §§ (a)(1) and (c)(1).

5  The Montgomery court held that the Miller decision constituted a new
substantive rule that courts must apply retroactively to cases on collateral
review. Montgomery, supra at 732-737.

6   In Batts II, supra, the Pennsylvania Supreme Court set forth the
procedural requirements for sentencing a juvenile homicide defendant in this
Commonwealth. Batts II, 163 A.3d at 459-460 (holding there is presumption
against imposition of life without parole sentence for juvenile murder
defendants; Commonwealth must provide notice of its intent to seek such
sentence; Commonwealth must rebut presumption with proof beyond
reasonable doubt that “juvenile offender is permanently incorrigible and thus
is unable to be rehabilitated[;]” and court must consider the factors



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       A hearing took place on May 2, 2017. At that time, the parties agreed

that Foxx’s petition was granted and that they were there for a re-sentencing

hearing. N.T., 5/2/2017, at 2-3.7 The resentencing hearing was continued

until July 10, 2017. The court heard six witnesses testify on behalf of Foxx.

Subsequently, on July 25, 2017, the court re-sentenced Foxx to the following:

(1) a term of 30 years to life imprisonment for the second-degree murder

conviction; (2) a term of five to 10 years’ incarceration for the aggravated

assault, to be served consecutively; (3) a term of five to 10 years’

imprisonment for the robbery, to be served concurrently; and (4) a term of

five to ten years’ incarceration for the conspiracy offense, to be served

concurrently to the aggravated assault offense.        No further penalty was




____________________________________________


announced in Miller and [18 Pa.C.S. §] 1102.1(d)” before imposing sentence
of life without parole).

7 A review of the docket reviews that no formal entry was made regarding
the court’s decision to grant Foxx’s PCRA petition. Additionally, in the July 25,
2017, order regarding Foxx’s resentencing, the court stated: “Original
sentence vacated and new sentence imposed pursuant to PCRA Petition
Granted.” Order, 7/25/2017.



                                           -5-
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imposed with regard to the remaining convictions. Foxx filed a post-sentence

motion, which was denied on September 5, 2017. This appeal followed.8, 9

       Foxx’s arguments concern challenges to the discretionary aspects of his

sentence, and, accordingly, are not appealable as of right, but “must be

considered a petition for permission to appeal.” Commonwealth v. Best,

120 A.3d 329, 348 (Pa. Super. 2015) (quotation omitted). To reach the merits

of a discretionary issue, this Court must determine:

       (1) whether the appeal is timely; (2) whether Appellant preserved
       [the] issue; (3) whether Appellant’s brief includes a 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 appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).




____________________________________________


8  We note Foxx was charged and tried under two docket numbers, and his
notice of appeal lists both dockets. In June of 2018, the Pennsylvania
Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held
that “when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. at 977 (footnote omitted). Nevertheless,
the Walker Court specifically announced its decision would be applied
prospectively only. See Walker, supra, 185 A.3d at 97. Therefore, because
Foxx’s notice of appeal was filed before Walker, on October 5, 2017, we need
not quash this appeal.

9 On October 6, 2017, the trial court ordered Foxx to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Foxx filed
a concise statement on December 1, 2017. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on July 18, 2018.

                                           -6-
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      Foxx complied with the procedural requirements for this appeal by filing

a timely post-sentence motion, and subsequent notice of appeal, and by

including in his appellate brief a statement of reasons relied upon for appeal

pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and

Pa.R.A.P. 2119(f). Therefore, we must determine whether he has raised a

substantial question justifying our review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citation omitted), appeal denied, 987 A.2d 161

(Pa. 2009).

      On appeal, Foxx alleges the resentencing judge failed to adequately

consider applicable sentencing guidelines as to the non-homicide convictions,

and in the alternative, the judge used erroneous sentencing guidelines with

respect to those crimes. See Foxx’s Brief at 23. An allegation that the trial

court failed to consider the sentencing guidelines raises a substantial question

for our review. See Commonwealth v. Scassera, 965 A.2d 247, 250 (Pa.

Super. 2009) (recognizing claim the sentencing court failed to consider

applicable sentencing guidelines presents a substantial question), appeal




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denied, 985 A.2d 219 (Pa. 2009).10 Likewise, a claim that the court misapplied

the sentencing guidelines also amounts to a substantial question.            See

Commonwealth v. Jackson, 585 A.2d 533, 534 (Pa. Super. 1991) (“Where

[an] appellant avers that the sentencing court failed to properly apply the

sentencing guidelines a substantial question as to the appropriateness of the

sentence has been raised.”). Accordingly, we find Foxx has raised substantial

questions for our review.

       The standard of review for a claim challenging discretionary aspects of

sentencing is well-established:

             Sentencing is a matter vested in the sound discretion of the
       judge, and will not be disturbed on appeal absent a manifest abuse
       of discretion. 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
       partiality, prejudice, bias or ill will, or arrived at a manifestly
       unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

       Moreover, pursuant to 42 Pa.C.S. § 9721(b), “the court shall follow the

general principle that the sentence imposed should call for confinement that


____________________________________________


10  We note that to the extent Foxx argues the court did not refer to the
sentencing guidelines when imposing his sentence, such a claim does not raise
a substantial question. See Commonwealth v. Rush, 162 A.3d 530, 543
(Pa. Super. 2017) (finding appellant “cited no case law holding that his claim
that the trial court failed to state the guideline ranges at sentencing raises a
substantial question, nor does our research reveal any.”), appeal denied, 170
A.3d 1049 (Pa. 2017).

                                           -8-
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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). Additionally,

“the 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 in toto “must reflect the [trial] court’s consideration

of the facts of the crime and character of the offender.” Commonwealth v.

Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475

(Pa. 2010).11 “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, 868 A.2d 1198 (Pa. 2005), cert denied, 545 U.S. 1148

(2005).

       As indicated above, Foxx first complains the resentencing judge did not

apply the sentencing guidelines to the resentencing of his non-homicide

convictions. Specifically, he states:

       [Foxx] was found guilty in 1994 at all three charges. He was
       sentenced by [the prior judge] to ten (10) to twenty (20) years
       for robbery, ten (10) to twenty (20) years for aggravated assault,
       and five (5) to ten (10) years incarceration for conspiracy. These
       were to run concurrent at [Docket No. 13472-1993] and to run
       consecutive to his life without the possibility of parole at [Docket
       No. 11573-1993]. [The prior judge] set [Foxx]’s range for each
____________________________________________


11 A trial court “need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in question[.]”
Crump, 995 A.2d at 1283.

                                           -9-
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       count enhanced for use of a gun. The aggregated sentence was
       life without possibility of parole and a consecutive twenty-five (25)
       to fifty (50) years. At the outset, the guidelines used by [the prior
       judge] that are the only guideline[s] in the record were erroneous.
       Regardless of this error, there is no evidence that [the
       resentencing judge] used these or any sentencing guidelines to
       determine his sentence at the non-homicide counts.[12]

                                               …

               [The resentencing judge] only considered other factors in
       delivering [Foxx]’s sentence, “And the Court has taken into
       consideration in terms of the sentencing responsibility of this
       Court articulated in [42 Pa.C.S. §] 9721, the protection of the
       public, the rehabilitative needs of the Defendant, the impact of the
       crime upon the community.” Further, [the resentencing judge]
       stated on the record his consideration for the overwhelming
       evidence presented on [Foxx]’s behalf to his positive conduct,
       rehabilitation during his incarceration, past negative influences in
       his life that may have affected his decision making at such a young
       age, and other factors.        However, the sentences at each
       nonhomicide count made no mention or devote any consideration
       to any guidelines to follow. [The resentencing judge] simply gave
       across the board, five (5) to ten (10) years for the aggravated
       assault, robbery, and conspiracy to run concurrent at [Docket No.
       13472-1993] and consecutive to his thirty (30) years to life
       sentence at [Docket No. 13472-1993]. These sentences came out
       of thin air, with no mention or consideration of correct guidelines.
       It is only by mere happenstance that the ranges imposed by [the
       resentencing judge] fit the correct standard ranges for aggravated
       assault and robbery, while the sentence for conspiracy fell within
       the aggravated range.           However, reviewing what [the
       resentencing judge] said, one would think that he may have
       wanted to sentence in the mitigated range or below the mitigated
       range of the sentencing guidelines.



____________________________________________


12 Later in his brief, Foxx appears to contradict himself by alleging “the only
mention of ‘guidelines’ on the record is when [the resentencing judge]
referenced [the prior judge]’s statements at the initial sentencing hearing”
and “this statement does not clearly manifest or demonstrate an awareness
or consideration to use those guidelines[.]” Foxx’s Brief at 39.

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Foxx’s Brief at 35-38 (citations and footnote omitted).      Additionally,

relying on Commonwealth v. Royer, 476 A.2d 453 (Pa. Super. 1984),

Foxx asserts the judge abused his discretion because he did “not

establish an understanding of or consideration of [the] guidelines or at

the minimum, an understanding of the correct guidelines when

sentencing” him. Foxx’s Brief at 38.

      We are guided by the following:

      “The sentencing court must consider the sentencing guidelines,
      and the consideration must be more than mere fluff.”
      Commonwealth v. Wilson, 2008 PA Super 64, 946 A.2d 767,
      769 (Pa. Super. 2008) (emphasis in original). While the guidelines
      are advisory and nonbinding, a sentencing court must ascertain
      the correct guideline ranges before deciding that a departure is in
      order. Commonwealth v. Archer, 722 A.2d 203, 210 (Pa.
      Super. 1998).       A sentencing judge must demonstrate an
      awareness of the guideline sentencing ranges so that the appellate
      court can analyze whether the reasons for a departure from the
      guideline ranges are adequate. Commonwealth v. Johnson,
      446 Pa. Super. 192, 666 A.2d 690, 693-94 (Pa. Super. 1995).

Scassera, 965 A.2d at 250.

      Moreover, in Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super. 2002),

appeal denied, 868 A.2d 1198 (Pa. 2004), a panel of this Court also stated:

      [W]hen deviating from the sentencing guidelines, a trial judge
      must indicate that he understands the suggested ranges.
      Commonwealth v. Rodda, 1999 PA Super 2, 723 A.2d 212, 214
      (Pa. Super. 1999) (en banc). However, there is no requirement
      that a sentencing court must evoke “magic words” in a verbatim
      recitation of the guidelines ranges to satisfy this requirement. Id.
      at 215. Our law is clear that, when imposing a sentence, the trial
      court has rendered a proper “contemporaneous statement” under
      the mandate of the Sentencing Code “so long as the record
      demonstrates with clarity that the court considered the sentencing


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       guidelines in a rational and systematic way and made a
       dispassionate decision to depart from them.” Id. at 216.

Griffin, 804 A.2d at 8. Lastly, we note: “[W]here the trial court is informed

by a pre-sentence report, it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has    been    so    informed,      its   discretion   should   not   be   disturbed.

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009), citing

Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988).13

       A review of the record reveals the following. The resentencing judge

held a hearing on the matter over the course of three days, and considered

testimony from a mitigation expert, numerous individuals who spoke on Foxx’s

behalf, Foxx’s own testimony, the trial and original sentencing transcripts, and

the remainder of the record. The judge ultimately imposed a standard range

sentence for the robbery and aggravated assault convictions and an

aggravated range sentence for the conspiracy conviction.14 As such, none of

____________________________________________


13 Here, a pre-sentence investigation report (“PSI”) was not included in the
certified record.  However, while not explicitly stated, it appears the
resentencing judge had the benefit of a PSI. He referenced the following: (1)
the procedural history of the case, including trial and post-conviction
proceedings; (2) an expert report from Dr. Terry Gilmore, detailing Foxx’s
upbringing and the effects of his childhood and his teenage years on his
conduct; (3) the July 25, 1994, sentencing transcript; (4) Foxx’s conduct
throughout his incarceration; (5) Foxx’s drug and alcohol history; and (6)
Foxx’s mental health history. See generally, N.T., 7/25/2017, at 2-15.

14   As explained by the Commonwealth:




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the “resentences” were outside of the sentencing guidelines. Therefore, in

accordance with Griffin, supra, and contrary to Foxx’s argument, the judge

was not required to provide “verbatim recitation of the guidelines ranges to

satisfy th[e] requirement” that he understood the ranges. Griffin, 804 A.2d

at 8.15 By imposing sentences within the sentencing guidelines, it is implicit

that    the    resentencing       judge        understood   and   considered   those


____________________________________________


       With a prior record score of 1 for the robbery conviction with a
       weapon enhancement, the standard range sentence was 54-80
       months; for the robbery without an enhancement, the standard
       range was 42-66 months; for the aggravated assault conviction,
       the standard range was 42-66 months; and for the conspiracy to
       commit robbery conviction, the standard range was 30-54 months
       and the aggravated range was 54 to 68 months. See, 204 Pa.
       Code § 303.9, 3d. Ed. (effective December 20, 1991). At re-
       sentencing, Judge Borkowski sentenced [Foxx] to 5 to 10 years’
       incarceration for the aggravated assault, 5 to 10 years’
       incarceration for the robbery and 5 to 10 years’ incarceration for
       the conspiracy conviction, all to run concurrent to one another and
       consecutive to his murder conviction. Thus, it is clear that [Foxx]
       was sentenced within the standard range for robbery and
       aggravated assault and in the aggravated range for the conspiracy
       conviction.

Commonwealth’s Brief at 22-23 (some citations omitted).

15 Furthermore, we find Foxx’s reliance on Royer, supra, misplaced as that
case concerned a sentence that fell outside the sentencing guidelines and
whether the judge’s statement of reasons at sentencing constituted a
“contemporaneous written statement” and was adequate. Royer, 476 A.2d at
457. The panel concluded the statement was not sufficient as “[n]owhere
d[id] the record indicate that the judge was aware of the guideline range.”
Id. at 458. Here, however, we have sentences that are within the sentencing
guidelines and evidence of the PSI, which demonstrated that the judge was
aware of the ranges.



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recommendations. See Scassera, supra. Accordingly, Foxx’s first argument

is unavailing.

       With respect to Foxx’s second issue, he claims that in the alternative,

the judge used sentencing guidelines that were erroneous when imposing the

non-homicide sentences. See Foxx’s Brief at 41. He states:

             Presently, the only reference to sentencing guidelines on the
       record by [the resentencing judge] is while quoting [the prior
       judge’s] statements at the initial sentencing stating, “Goes on to
       take into account the sentencing guidelines and mandatory laws.”
       Another possible indirect reference to the guidelines on the record
       is quoted, “And the Court has taken into consideration in terms of
       the sentencing responsibility of this Court articulated in Title 42
       9721...” If either statement is construed as evidence of [the
       resentencing judge] considering sentencing guidelines, the
       guidelines in the record were deemed erroneous by this Honorable
       Court.

Id. at 43.     Foxx asserts that the resentencing judge may have used the

sentencing guidelines that were applied at the time of his 1994 judgment of

sentence, which he points out were erroneous based on a statement made by

a panel of this Court in his direct appeal.16 Id. at 43-44. He states if the

____________________________________________


16   The Foxx I panel stated:

       Upon review of the record, we conclude that the trial court did err
       in computing the sentencing guideline ranges by adding the
       deadly weapon enhancement to each crime charged. The deadly
       weapon enhancement requires the trial court to add 12 to 24
       months to a guideline range when the crime has been committed
       with a deadly weapon. However, the enhancement may not be
       added to more than one crime arising from the same transaction
       or occurrence. 204 Pa.Code §303.9 (a) (5). Here, the court
       added the deadly weapon enhancement to each crime charged,



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resentencing judge had used the wrong guidelines, the judge “may have

believed he was sentencing [Foxx] in the mitigated range when he was not.”

Id. at 46. Moreover, he alleges:

       [T]here is no demonstration that guidelines were set forth to guide
       the sentencing ranges. He conjured up a sentence of five (5) to
       ten (10) for each nonhomicide count. These ranges came out of
       thin air. It is only by chance that the robbery and aggravated
       assault sentence ranges fell within the correct standard range, and
       the count for conspiracy landed in the aggravated range.

Id. at 46-47.

       Keeping our standard of review in mind, we disagree for several reasons.

First, with respect to his assertion that “the only reference to sentencing

guidelines on the record by [the resentencing judge] is while quoting [the prior

judge’s]    statements     at   the   initial   sentencing,”17   we   find   that   Foxx

misconstrues the judge’s comment. A review of the transcript reveals the

judge was merely referencing the procedural history of the case, including

quoting the prior judge’s statements at Foxx’s original sentencing proceeding,

and did not apply the same guidelines to Foxx’s resentencing.                See N.T.,


____________________________________________


       thus improperly adding an additional 24 months to the sentencing
       guidelines for each crime.

Commonwealth v. Foxx, 679 A.2d 251 (Pa. Super. 1996) (unpublished
memorandum at 4). Nevertheless, the panel concluded the error had no effect
on the court’s decision because it had intended to sentence Foxx beyond the
guideline ranges. Id. at 4-5.

17   Foxx’s Brief at 43.



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7/25/2017, at 4-7. Second, by acknowledging that he was aware of the full

procedural history of Foxx’s case,18 one can infer the resentencing judge was

also aware of the decision in Foxx’s direct appeal and the panel’s comments

that erroneous guidelines were applied at that time. Third, Foxx speculates

that the resentencing judge may have believed he was sentencing Foxx in the

mitigated range and that it was pure luck that the judge imposed sentences

within the standard and/or aggravated range of the sentencing guidelines.

However, without more evidence that the court intended to sentence Foxx in

the mitigated range, Foxx’s claim is baseless. Moreover, based on the record,

it is evident that the resentencing judge did not just happen upon standard

sentencing ranges. The judge explained his rationale as follows:

       As to Mr. Foxx, the support, of course, that he enjoyed during his
       youth from his pastoral community, so to speak, weighs in his
       favor. The fact that they stood by him all of these years and have
       faith in his progress as he has made his positive attitude, his
       conduct throughout his incarceration, despite what one might
       perceive in this circumstance as hopelessness that confronted
       him, his very positive factor and, of course, that letter stated
       weighs heavily in his favor by virtue of the acts that applies to
       him.

       I can’t imagine being in that circumstance he was in, life plus 50,
       that a person would conduct themselves in the manner in which
       he did and take the positive steps and exhibit the positive attitude
       he did during those 11 years. And that is the most positive factor
       that weighs in his favor.

       And the Court has taken into consideration in terms of the
       sentencing responsibility of this Court articulated in Title 42 [§]


____________________________________________


18   See N.T., 7/25/2017, at 2.

                                          - 16 -
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     9721, the protection of the public, the rehabilitative needs of the
     defendant, the impact of the crime upon the community.

     On the other side of the coin, the most negative thing that goes
     against him, of course, is a loss of human life at the hands of his
     codefendant and the aggravated assault on [the victim] that he is
     responsible for by virtue of his own conduct.

     The Court has taken into account his own statement on the
     witness stand, the arguments made on behalf of Mr. Foxx by
     [defense counsel]. The Court, taking everything into account, as
     stated in Miller and Batts, his age at the time of the offense, his
     acknowledged culpability, capacity for change, he’s demonstrated
     that certainly.

     The circumstances of the crime referred to by [the prior judge]
     and certainly confirmed by virtue of my review of the record and
     the extent of participation in the crime. Of course, he was the
     essential participant.

     Family home and neighborhood environment, which can simply be
     stated was chaotic except for his base and relationship in the
     religious community.

     His emotional maturity and development described in [the
     mitigation expert, Dr. Gilmore].

     The extent of peer pressure that may have affected him.

     His lack of a strong family environment, past exposure to violence.

     Drug and alcohol history, ability to deal with the police, and his
     mental health history and, again, his rehabilitation as
     demonstrated, in fact, by his progress in the state correctional
     system.

     The Court has also taken into account the arguments made by
     [the Commonwealth] and the loss of human life and injury to [the
     victim].

N.T., 7/25/2017, at 10-13.      Fourth, we reiterate that because Foxx’s

resentences were within the sentencing guidelines, the resentencing judge


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was not required to explicitly state the guideline ranges. See Griffin, 804

A.2d at 8. Accordingly, Foxx’s second argument has no merit.

       In conclusion, Foxx has not demonstrated the resentencing court

“ignored or misapplied the law, exercised its judgment for reasons of

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

decision.” Sheller, 961 A.2d at 190. Therefore, we conclude the court did

not abuse its discretion with regard to Foxx’s resentencing on his non-

homicide convictions.19

       In an unrelated matter, on June 21, 2019, Gretchen Panchik, Esquire,

for the Commonwealth, filed a motion to withdraw as counsel because she will

no longer be working for the Allegheny County District Attorney’s Office. See

Praecipe to Withdraw as Counsel, 6/21/2019. She indicated Deputy District

Attorney Michael W. Streily will remain as counsel for the Commonwealth.

Accordingly, the motion to withdraw as counsel is granted.

       Judgment of sentence affirmed. Commonwealth’s motion to withdraw

as counsel granted.




____________________________________________


19  We note in its Rule 1925(a) opinion, the trial court found Foxx’s arguments
to be waived because they were “conflicting and confusing.” Trial Court
Opinion, 7/18/2018, at 16-17. Nevertheless, “[t]his Court is not bound by the
rationale of the trial court, and we may affirm the trial court on any basis.”
Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa. Super. 2013)
(citation omitted), appeal denied, 87 A.3d 320 (Pa. 2014). See also
Commonwealth’s Brief at 15 n.17 (noting Foxx did not waive his arguments).

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J-A14008-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2019




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