J-S70023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 RODNEY SMITH                           :
                                        :
                   Appellant            :   No. 2526 EDA 2017

      Appeal from the Judgment of Sentence Entered March 8, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0007050-2011,
           CP-51-CR-0007052-2011, CP-51-CR-0007060-2011


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED APRIL 04, 2019

     Rodney Smith appeals from the judgments of sentence entered after the

court vacated the sentences previously imposed on the above three docket

numbers. We affirm the judgment of sentence entered on March 8, 2017, on

docket number CP-51-CR-0007050-2011 (“7050”), as the trial court did not

abuse its discretion when sentencing Smith to ten to 20 years’ incarceration

for robbery and conspiracy. We vacate the judgments of sentence imposed on

March 8, 2017, on docket numbers CP-51-CR-0007052-2011 (“7052”) and

CP-51-CR-0007060-2011 (“7060”), because the trial court was without

jurisdiction to resentence Smith on those docket numbers.

     The procedural history is as follows. In 2011, the Commonwealth

charged Smith in relation to two robberies committed over the course of four

days with the use of a stolen car. The trial court assigned three different
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docket numbers. Each of the robberies received a separate docket number

(7050 and 7060), as did the charge of receiving stolen property related to the

use of the stolen car (7052). Each docket also included related charges. The

three cases were consolidated for trial, and a jury convicted Smith of these

and related charges.1

       The trial court sentenced Smith on September 20, 2012. It applied 42

Pa.C.S.A. § 9712 to the robbery convictions and imposed a five-to-ten-year

mandatory minimum sentence on each. The court ordered the sentences on

the three dockets to run concurrently, and imposed an aggregate sentence of

12 to 24 years’ incarceration.

       Smith filed a notice of direct appeal that listed only docket number

7050; he did not file a direct appeal on docket numbers 7060 or 7052. This

Court affirmed on April 9, 2014, and Smith did not petition for allowance of

appeal. See Commonwealth v. Smith, 102 A.3d 525 (Pa.Super. 2014).

       On March 26, 2015, Smith filed a pro se Post Conviction Relief Act

(“PCRA”) petition. His petition referenced only docket number 7050, the case

that he had directly appealed. The court appointed PCRA counsel, who filed

an Amended Petition that referenced all three docket numbers and alleged

that   Smith’s     mandatory       minimum       sentences   had   been   rendered

____________________________________________


1 The convictions on docket number 7050 were for robbery and conspiracy;
those on docket number 7060 were for robbery, conspiracy, possessing an
instrument of crime, and carrying firearms on public streets in Philadelphia;
and the conviction on docket number 7052 was for receiving stolen property.
See 18 Pa.C.S.A. §§ 3701(A)(1)(ii) and 903, 907(a), 6108, and 3925(a).

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unconstitutional by Alleyne v. United States, 570 U.S. 99 (2013). The

Commonwealth responded by filing a letter, referencing only docket number

7050, stating the Commonwealth did not oppose resentencing. Without

explicitly granting or denying the Amended PCRA Petition, the court scheduled

resentencing on all three dockets.

       At resentencing, on March 8, 2017, Smith’s attorney noted that he was

not Smith’s counsel of record on docket numbers 7060 and 7052, and

requested that the court appoint him as counsel on those cases. The court did

so, and the Commonwealth did not object. At the conclusion of the hearing,

the court resentenced Smith on all three cases. The court again ordered the

sentences to run concurrently, for a new aggregate sentence of ten to 20

years’ incarceration.

       Five days later, on March 13, 2017, Smith filed what he styled as a

“Motion to Reconsider Sentence,” referencing all three docket numbers. The

motion argued that the court should reduce his sentence because it was

“unduly harsh and excessive.” Motion to Reconsider Sentence, at 4, ¶ 8. Four

months later, on July 12, 2017, the trial court issued an administrative order

denying Smith’s motion by operation of law. See Pa.R.Crim.P. 720(B)(3)(c).2


____________________________________________


2 See Pa.R.Crim.P. 720(B)(3)(c) (providing that when a post-sentence motion
is denied operation of law, the clerk of courts shall enter an order so stating);
see also Pa.R.Crim.P 720(B)(3)(a) (providing where trial court takes no
action on a post-sentence motion within 120 days, the motion shall be deemed
denied by operation of law).



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The order advised Smith that he had 30 days in which to file a notice of appeal.

Smith filed a notice of appeal within 30 days. The notice purported to appeal

from all three docket numbers.3

                              I. Timeliness of Appeal

       The trial court suggests in its Pa.R.A.P. 1925(a) opinion that we quash

the appeal as untimely because Smith appealed more than 30 days after his

resentencing. See Trial Court Opinion, filed 2/12/18, at 2 (unpaginated). The

trial court asserts that Smith’s “Motion to Reconsider Sentence” did not extend

the time period for filing an appeal, because the court did not expressly grant

reconsideration. We disagree. Although Smith titled his motion as one seeking

“reconsideration,” it was in effect a motion to modify sentence that tolled the

appeal period.

       Rule 720(B)(3)(a) of the Rules of Criminal Procedure provides that if

defendant files a timely post-sentence motion, the court must decide the

motion within 120 days, or the motion will be deemed denied by operation of

law. Pa.R.Crim.P. 720(B)(3)(a). In either case, once the motion is denied, the

defendant has 30 days to file a notice of appeal. Pa.R.Crim.P. 720(A)(2)(a)-

(b); see Commonwealth v. Perry, 820 A.2d 734, 735 (Pa.Super. 2003).

When the court expressly denies a timely post-sentence motion, the defendant
____________________________________________


3On June 1, 2018, our Supreme Court held that where there is an appeal of
more than one docket, separate notices of appeal must be filed for each case,
or the appeal will be quashed. Commonwealth v. Walker, 185 A.3d 969,
971 (Pa. 2018). However, we do not apply Walker to this case, as Smith
appealed prior to the Walker decision, which announced it would be applied
prospectively. Id. at 977.

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may then file a motion for reconsideration of the denial of the post-sentence

motion. See Pa.R.Crim.P. 720, comment. However, the court must decide the

motion for reconsideration within the same 120-day period applicable to post-

sentence motions. Id.

       Here, Smith’s “Motion for Reconsideration of Sentence,” filed within ten

days of the resentencing hearing, was clearly a post-sentence motion

contemplated by Rule 720. Indeed, Rule 720(B)(1)(a)(v) explicitly permits a

post-sentence motion to modify sentence. As the motion was timely,4 the time

for filing a notice of appeal did not begin to run until after the court’s

disposition of the motion. The motion was denied by operation of law after

120 days, and Smith filed a notice of appeal within 30 days thereafter. His

appeal is therefore timely.

             II. Trial Court’s Jurisdiction to Resentence Smith
                     on Docket Numbers 7060 and 7052

       Next, we address the Commonwealth’s contention that the trial court

lacked jurisdiction to resentence Smith on docket numbers 7060 and 7052.

According to the Commonwealth, Smith’s PCRA Petition was untimely in

relation to those docket numbers, because Smith did not file a direct appeal

from his original judgment of sentence imposed on those dockets. Because

the Petition was untimely, the Commonwealth argues, the PCRA court lacked

jurisdiction to grant relief on those docket numbers, and the trial court


____________________________________________


4 A written post-sentence motion must be filed within ten days of the
imposition of sentence. Pa.R.Crim.P. 720(A)(1).

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consequently lacked jurisdiction to resentence Smith. The Commonwealth

requests that we vacate all three judgments of sentence entered on March 8,

2017, and remand docket number 7050 for a third sentencing by the trial

court, as vacating sentence on the other two dockets will upset the trial court’s

sentencing scheme. Smith has not filed a reply brief addressing the

Commonwealth’s argument.

      The timeliness of a PCRA petition is a jurisdictional prerequisite, and a

PCRA court is accordingly “precluded from considering untimely PCRA

petitions.” Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003).

Even a claim that the trial court imposed an unconstitutional mandatory

minimum    sentence    must   be   raised   within   a   timely   PCRA   petition.

Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa.Super. 2015). This threshold

question of the timeliness of the petition implicates this Court’s subject matter

jurisdiction over the appeal as well. Whitney, 817 A.2d at 478. The issue of

jurisdiction cannot be waived by the parties’ failure to address it before the

PCRA or trial court. See Commonwealth v. Concordia, 97 A.3d 366, 371

(Pa.Super. 2014); Commonwealth v. Salley, 957 A.2d 320, 325 (Pa.Super.

2008).

      Here, the trial court initially sentenced Smith on all three docket

numbers on September 20, 2012. Smith did not appeal the judgments of

sentence imposed on docket numbers 7060 and 7052. Thus, the judgments

of sentence on those two docket numbers became final thirty days after

sentencing, on October 20, 2012, when the time period for seeking direct

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review expired. 42 Pa.C.S.A § 9545(b)(3); Pa.R.A.P. 903(a). Smith had one

year, until October 20, 2013, to file a PCRA petition, unless an exception to

the one year time-bar applied. 42 Pa.C.S.A. § 9545(b)(1). Smith has not

argued that any exception applies to his petition, and thus his petition, filed

on March 26, 2015, was untimely in relation to docket numbers 7060 and

7052.5

       As Smith did not file a timely PCRA petition requesting relief on docket

numbers 7060 and 7052, the PCRA court was without jurisdiction to disturb

judgment, and the trial court without jurisdiction to resentence. We therefore

direct the trial court to vacate the sentences imposed on March 8, 2017, on

docket numbers 7060 and 7052.

       Vacating the March 8, 2017 judgment of sentence on docket numbers

7060 and 7052 does not require that we remand for resentencing on docket

number 7050. Although a court may vacate all interdependent sentences

when one of the sentences is illegal, even where the sentences flow from

convictions charged on different bills of information, see Commonwealth v.

Bartrug, 732 A.2d 1287, 1289-90 (Pa.Super. 1999), when an appellate court

vacates one of several concurrent sentences, it does not upset a sentencing

scheme and require remand for resentencing. See Commonwealth v.


____________________________________________


5 We note that Smith did not refer to docket numbers 7060 and 7052 in his
pro se petition; and, his Amended petition, which did request relief on those
docket numbers, was filed even later.



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Robinson, 817 A.2d 1153, 1163 n.14 (2003). Here, the trial court ordered

the sentences on Smith’s three docket numbers to run concurrently, and

therefore our vacating two of the three sentences has not upset a sentencing

scheme.6

              III. Sentence Imposed on Docket Number 7050

       Smith raises a single issue in his appeal from the judgment of sentence

imposed on docket number 7050: “Whether the lower court abused its

discretion in denying [Smith]’s Motion for Reconsideration of Sentence?”

Smith’s Br. at 8.

       As Smith challenges the discretionary aspects of his sentence, we must

first determine whether we will allow the appeal. Commonwealth v.

Heaster, 171 A.3d 268, 271 (Pa.Super. 2017), appeal denied, 181 A.3d 1078

(Pa. 2018). We will only do so if: (1) the appeal is timely; (2) the issue was

preserved; (3) the brief includes a Pa.R.A.P. 2119(f) statement; and (4) the

statement raises a “substantial question that the sentence appealed from is

not appropriate under the Sentencing Code.” Id. at 271-72 (citing

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010)).

       Smith’s appeal is timely, he preserved the issue in a post-sentence

motion, and his brief includes a concise statement of the reasons why we

____________________________________________


6 Similarly, although the PCRA court properly vacated the initial sentence on
docket number 7050 following the PCRA petition, this act did not imbue the
trial court with jurisdiction to resentence on docket numbers 7060 and 7052,
as the sentences imposed at the initial sentencing were concurrent, and
vacating one sentence did not disturb an interdependent scheme.

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should allow the appeal. In his Rule 2119(f) statement, Smith argues that his

sentence “was so manifestly excessive as to constitute too severe a

punishment,” and that the court “did not adequately examine and investigate

[his] background, character, and rehabilitative needs” and “only made a

cursory mention of mitigating factors” such as his potential for rehabilitation

and his mental health. Smith’s Br. at 17. We have previously held a “claim

that the court erred by imposing an aggravated range sentence without

consideration of mitigating circumstances raises a substantial question.” See

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en

banc).7 We therefore grant allowance of appeal and consider whether Smith’s

argument merits relief.

       We will not disturb the trial court’s sentence absent an abuse of

discretion. White, 193 A.3d at 984 (citing Commonwealth v. Malovich, 903

A.2d 1247, 1252-53 (Pa.Super. 2006)). When a sentence falls within the

sentencing guidelines, we will vacate the sentence only when “the case

involves circumstances where the application of the guidelines would be

clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2); Commonwealth v.

Swope, 123 A.3d 333, 340 (Pa.Super. 2015).


____________________________________________


7 We note that “prior decisions from this Court involving whether a substantial
question has been raised by claims that the sentencing court ‘failed to
consider’ or ‘failed to adequately consider’ sentencing factors has been less
than a model of clarity and consistency.” Commonwealth v. White, 193
A.3d 977, 983 (Pa.Super. 2018) (quoting Commonwealth v. Caldwell, 117
A.3d 763, 769-70 (Pa.Super. 2015) (en banc)).

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      A trial court need not expound upon its sentencing philosophy in a

lengthy discourse. See Commonwealth v. Malovich, 903 A.2d 1247, 1253

(Pa.Super. 2006) (quoting Commonwealth v. McAfee, 849 A.2d 270, 275

(Pa.Super. 2004)). Rather, the record as a whole must reflect the court gave

meaningful consideration to both the character of the defendant and facts of

the crime. Id. (citation omitted).

      Smith argues that the court gave short shrift to his capacity for

rehabilitation and his rehabilitative needs. Smith’s Br. at 22. Smith asserts

that he testified that he has changed his outlook on life since being

incarcerated. Id. Smith also asserts that he raised in his motion for

reconsideration that he presented evidence at his original sentencing that

domestic violence in his childhood home traumatized him; he suffers from

ADHD, and is not properly treated while incarcerated; and he only gets into

trouble when he is not taking medication. Id. Smith argues the sentencing

transcript does not reflect that the trial court considered these factors. Id.

      We disagree. At Smith’s resentencing, he testified that he has a

supportive family and a daughter; during the six years he has spent

incarcerated, he has furthered his education, and has career aspirations in

real estate; both of his parents have passed away since he became

incarcerated; he has grown more patient during his time in prison; he regrets

committing the instant crimes, which he committed when he was 19 years

old; and he is incentivized not to spend the rest of his life incarcerated. N.T.,

3/8/17, at 14-19, 24-25. Smith’s sister also testified that Smith has become

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“more     humble”     since    becoming        incarcerated.   Id.   at   11-12.   The

Commonwealth proposed that the court re-impose the same sentence on each

charge, noting that the previously mandated minimum sentence of five to ten

years’ incarceration for robbery fell within the aggravated range of the

sentencing guidelines.8

       At the conclusion of the hearing, the trial court resentenced Smith on all

three dockets. Before imposing sentence, the court stated the following:

       The Court has had an opportunity to review the information
       provided, heard the argument, still has the benefit of the pre-
       sentence report and had a chance to hear from [Smith] and [a]
       family member of [Smith], and, first, to Mr. Smith, I am sorry for
       your losses. The Court takes into consideration that [Smith] has
       completed his high school, gotten his high school diploma, also
       completed the Money Smart program. The court also cannot
       forget the gravity of the offenses and the need for rehabilitation.
       It seems like you are on the right track for rehabilitation[.]

Id. at 27. On docket number 7050, the court re-imposed the original

sentence—five to ten years’ imprisonment for robbery, with a consecutive

term of five to ten years’ imprisonment for conspiracy, for an aggregate of ten

to 20 years’ imprisonment.

       The record therefore reflects that the court carefully considered Smith’s

capacity and need for rehabilitation. The court was well apprised of Smith’s

____________________________________________


8 The parties agreed that the prior record score was zero, the offense gravity
score for robbery was ten, and that with the deadly-weapon enhancement,
the standard Guidelines range for both the robbery and conspiracy convictions
was 40 to 54 months minimum incarceration, increased or reduced by 12
months in the aggravated and mitigated ranges. See N.T. at 4-5, 8-11, 25-
26; 204 Pa.Code § 303.17(b).

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character, history, and prospects, as well as the gravity of the crimes Smith

committed. The court found that Smith was “on the right track for

rehabilitation,” and re-imposed the original sentence, which fell within the

aggravated Guidelines range. N.T. at 27.

      Although the court did not specifically mention Smith’s ADHD or mental

health, Smith did not specifically argue those facts at his resentencing

hearing—instead, Smith waited to raise those issues in his post-sentence

motion, which was denied by operation of law. Nonetheless, we presume the

court considered those facts, as it had both reviewed the pre-sentence report

and presided at the original sentencing hearing where Smith had highlighted

his mental health status. See Commonwealth v. Johnson, 125 A.3d 822,

827 (Pa.Super. 2015).

      Smith makes no separate argument that his consecutive sentences were

excessive given the criminal conduct at issue. See Commonwealth v.

Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010). However, we do not find

the imposition of two consecutive five- to ten-year sentences for robbery and

conspiracy to be excessive under the facts of this case. At Smith’s

resentencing, the Commonwealth argued that “within a four-day span,

[Smith] robbed two people by gunpoint [and] assaulted one person with th[e]

gun.” N.T. at 7.

      Ultimately, the record does not reflect an abuse of discretion or that the

application of the sentencing guidelines was clearly erroneous. We therefore

affirm the judgment of sentence on docket number 7050.

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     Judgment of sentence on docket number CP-51-CR-0007050-2011

affirmed. Order of March 8, 2017, imposing sentence on docket numbers CP-

51-CR-0007052-2011 and CP-51-CR-0007060-2011 vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/19




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