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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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