Com. v. Smith, M.

• Court: Superior Court of Pennsylvania
• Decided: June 15, 2016
• Docket: 2124 EDA 2015
• Status: Unpublished

Opinion

J-S30009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MAURICE SMITH

Appellant No. 2124 EDA 2015

Appeal from the Judgment of Sentence February 5, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011502-2007

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

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 15, 2016

Appellant, Maurice Smith, appeals from the sentence entered in the

Philadelphia County Court of Common Pleas, following remand for

resentencing. In 2009, a jury convicted Appellant of second degree murder,

robbery, and criminal conspiracy for his participation in the robbery and

murder of a pizza delivery person. The court initially sentenced Appellant to

life imprisonment, plus a consecutive 10-20 years’ incarceration for robbery,

and 10-20 years’ incarceration for criminal conspiracy, concurrent with the

robbery sentence. This Court affirmed the judgment of sentence on

November 12, 2010. Our Supreme Court granted allowance of appeal and

vacated the sentences for robbery and conspiracy; the Court remanded the

case to the trial court on September 24, 2014, for resentencing. On

February 5, 2015, the trial court resentenced Appellant to 10-20 years’ J-S30009-16

incarceration for the conspiracy conviction to run consecutive to the life

sentence. Appellant timely filed a post sentence motion alleging the court

failed to state its reasons for the resentence on the record, per Pa.R.Crim. P.

704(C)(2). Although the trial court now states it was prepared to grant the

motion and resentence Appellant on July 20, 2015, Appellant’s motion was

denied by operation of law on June 19, 2015, and Appellant timely filed a

notice of appeal on July 9, 2015, which deprived the court of jurisdiction. No

Rule 1925(b) statement of errors complained of on appeal was ordered or

filed.

A claim that the sentencing court failed to state adequate reasons on

the record for imposing a sentence presents a challenge to the discretionary

aspects of sentencing. Commonwealth v. Twitty, 876 A.2d 433

(Pa.Super. 2005), appeal denied, 586 Pa. 749, 892 A.2d 823 (2005). 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 determination of what constitutes a substantial question must

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

A.2d 1013 (Pa.Super. 2003). A substantial question exists when the

appellant advances a colorable argument that the sentencing court’s

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decisions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912-13

(Pa.Super. 2000). A claim that a court did not provide an on-the-record

statement of reasons for the sentence imposed presents a substantial

question. Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super. 2006).

Instantly, Appellant properly preserved his sentencing issue, which

challenges his conspiracy sentence based on the trial court’s failure to state

adequate reasons for the sentence imposed. We agree the issue as

presented raises a substantial question for review. See id. The trial court

concedes that it did not state its reasons for the sentence imposed on

February 5, 2015, that resentencing is necessary, and recommends that this

Court remand the case, so as not to delay Appellant’s resentencing. The

Commonwealth concurs and does not oppose remand for resentencing on

the conspiracy conviction. Accordingly, we vacate the judgment of sentence

for conspiracy only and remand for resentencing on that conviction.

Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/15/2016

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