J-S73018-16
2016 PA Super 246
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL SERRANO
Appellant No. 204 WDA 2016
Appeal from the Judgment of Sentence January 15, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000099-2011
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
OPINION BY LAZARUS, J.: FILED NOVEMBER 15, 2016
Michael Serrano appeals from the judgment of sentence imposed in
the Court of Common Pleas of Blair County after a jury found him guilty of
various drug trafficking crimes. Upon careful review, we vacate Serrano’s
judgment of sentence and remand for resentencing.
On October 27, 2011, Serrano was convicted of one count each of
delivery of a controlled substance,1 possession with intent to deliver a
controlled substance (“PWID”),2 conspiracy – PWID,3 and criminal use of a
communication facility.4 The Honorable Thomas G. Peoples, Jr., imposed an
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1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S.A. § 903.
(Footnote Continued Next Page)
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aggregate sentence of 31 to 82 years’ incarceration on March 15, 2012.
Serrano appealed to this Court, which, on February 4, 2013, vacated his
conviction for delivery of a controlled substance because the verdict slip
incorrectly indicated “cocaine” rather than “heroin.” The matter was
remanded to the trial court for resentencing.
On April 24, 2013, Judge Peoples resentenced Serrano to an aggregate
sentence of 26 to 52 years’ imprisonment as follows: for PWID, a term of
incarceration of 15 to 30 years; for conspiracy, 7½ to 15 years in prison;
and for criminal use of a communications facility, 3½ to 7 years
imprisonment. Upon appeal to this Court, Serrano’s sentence, which
included a mandatory minimum sentence for PWID pursuant to 18 Pa.C.S.A.
§ 7508, was vacated as illegal in light of the U.S. Supreme Court’s decision
in Alleyne v. United States, 133 S. Ct. 2151 (2013). The matter was
again remanded for resentencing.
In the interim, Judge Peoples passed away and the case was
reassigned to the Honorable Timothy M. Sullivan for resentencing. Judge
Sullivan ordered an updated presentence investigation (“PSI”) and, on
January 15, 2016, imposed the same sentence Judge Peoples had imposed,
but found Serrano to be Recidivism Risk Reduction Incentive 5 eligible.
_______________________
(Footnote Continued)
4
18 Pa.C.S.A. § 7512.
5
61 Pa.C.S.A. §§ 4501-4512
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Serrano filed post-sentence motions, which the trial court denied by order
dated January 29, 2016.
This timely appeal follows, in which Serrano raises the following issues
for our review:6
1. Whether the sentencing court erred and abused its discretion
by failing to consider evidence of [Serrano’s] rehabilitation while
incarcerated, his rehabilitative needs and protection of the
public, as set forth in 42 Pa.C.S.A. [§] 9721(b), which resulted in
an excessive sentence?
2. Whether the sentencing court erred and abused its discretion
by relying on the previous sentencing court’s determination and
by not conducting an independent review of the evidence
presented at sentencing, as it does not constitute a sufficient
reason for imposing sentence?
3. Whether the sentencing court erred and abused its discretion
by basing . . . Serrano’s sentence on the seriousness of the
offense alone, without taking into account evidence of other
relevant sentencing criteria, which does not constitute a
sufficient reason for imposing a sentence?
4. Whether the sentencing court erred and abused its discretion
by imposing consecutive terms of statutory maximum sentences,
rather than a standard guideline range sentence, which may
result in disparate sentence[s] between co-defendants, since the
Commonwealth did not specifically recommend maximum terms
and indicated . . . Serrano’s more culpable co-defendant Gene
Carter may very well receive a sentence within the standard
range of his sentencing guidelines?
Brief of Appellant, at 4-5.
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6
In his statement of questions involved, Serrano raises five issues.
However, the fifth and final issue is merely an amalgamation of the previous
four issues and, accordingly, will not be addressed separately.
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All of Serrano’s appellate claims challenge the discretionary aspects of
his sentence. Such claims do not entitle an appellant to review as a matter
of right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015).
Rather, before this Court can address such discretionary challenges, an
appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.
Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011).
Here, Serrano filed a post-sentence motion raising his sentencing
claims, followed by a timely notice of appeal to this Court. He has also
included in his brief a concise statement of reasons relied upon for allowance
of appeal with respect to the discretionary aspects of his sentence pursuant
to Pa.R.A.P. 2119(f). Accordingly, we must now determine whether he has
raised a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
This Court has previously found a substantial question to be raised
where an appellant alleged that the sentencing court: (1) failed to consider
relevant sentencing criteria, including the protection of the public, the
gravity of the underlying offense and the rehabilitative needs of appellant,
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see Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012); (2)
failed to consider the defendant’s individualized needs, see
Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008); (3)
focused solely on the seriousness of the offense in crafting the sentence,
see Commonwealth v. Culverson, 34 A.3d 135, 146 (Pa. Super. 2011);
and (4) imposed an excessive aggregate sentence by sentencing
consecutively in light of the criminal conduct at issue and where co-
defendants were sentenced more leniently, see Commonwealth v.
Mastromarino, 2 A.3d 581, 587-89 (Pa. Super. 2010). Accordingly, we
find that Serrano has raised substantial questions and will proceed to review
the merits of his claims.
We first address Serrano’s claim that the sentencing court erred and
abused its discretion by relying on the previous sentencing court’s
determination and by not conducting an independent review of the evidence
presented at sentencing. For the following reasons, we agree that the court
abused its discretion and remand, once again, for resentencing.
When a sentence is vacated and the case is remanded to the
sentencing court for resentencing, the sentencing judge should
start afresh. Commonwealth v. Losch, [] 535 A.2d 115 (Pa.
Super. 1987). “Reimposing a judgment of sentence should not
be a mechanical exercise.” Id. [] at 122. “Given the important
nature of the interests involved, the judge at the second
sentencing hearing should reassess the penalty to be imposed on
the defendant-especially where defense counsel comes forward
with relevant evidence which was not previously available.” Id.
Thus, [appellant’s] conduct since the prior sentencing hearing is
relevant at resentencing. Id. [] at 123. The sentencing judge
must take note of this new evidence and reevaluate whether the
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jail term which [appellant] received is a just and appropriate
punishment. Id.
Commonwealth v. Jones, 640 A.2d 914, 919–20 (Pa. Super. 1994).
These directives are particularly salient where, as here, the resentencing
judge did not preside over the defendant’s previous sentencing proceeding
and is not personally familiar with the defendant and his background,
offenses and character. Accordingly, the new presiding judge must
familiarize himself with the defendant, the offense, and the attendant
circumstances of the case.
In this case, it is abundantly clear that Judge Sullivan mechanically
reimposed the sentence originally handed down by Judge Peoples without
making any independent reassessment or reevaluation of the sentencing
criteria set forth in the Sentencing Code. Indeed, the court plainly conceded
as much:
BY THE COURT: . . . I view my role as not to come in here
and make an independent judgment upon your case. All
right? Judge Peoples is the one who presided over your trial.
Judge Peoples is the one who heard all the evidence. Judge
Peoples is the one who considered all the evidence that was
adduced during the trial and heard the arguments from [counsel]
and he imposed sentence as he did. Of course, it was taken up
on appeal and remanded. Judge Peoples imposed a substantial
sentence the second time around. Again, it was taken up on
appeal and remanded back. I don’t view my role as taking
an independent look at the case. I view my role as reviewing
the evidence, trying to determine what Judge Peoples, who was
the presiding trial judge and the original sentencing judge, what
his intention was at the time he imposed sentence. Mr. Serrano,
I’m fully satisfied, practicing before Judge Peoples and knowing
Judge Peoples, it was his intention to impose the statutory
maximum upon you for each and every one of these counts for
which you were convicted. I disagree with the Superior Court
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with all due respect. I don’t believe Judge Peoples in any way
was swayed by the mandatory minimums that at one time were
in place and were overruled by the United States Supreme Court
decision in Alleyne. I don’t think that played any part in Judge
Peoples’ decision or his analysis in imposing sentence upon you.
I am fully satisfied it was Judge Peoples’ intention to impose the
statutory maximum sentence upon you. So, in light of that, I
will enter this Sentencing Order.
N.T. Sentencing, 1/15/16, at 20-21 (emphasis added). The order that
followed was, essentially, a word-for-word recitation of Judge Peoples’
sentencing order from April 24, 2013.
As the foregoing reveals, at sentencing, Judge Sullivan declined to
make any findings of his own demonstrating that Serrano’s sentence was
individualized and “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.”7 42 Pa.C.S.A. §
9721(b). Instead, he deferred entirely to what he speculated to have been
the judgment of a deceased jurist. This is especially concerning in a case,
such as here, where the prior judge sentenced Serrano under a mandatory
minimum sentencing scheme that has since been deemed to be
unconstitutional. Judge Sullivan’s duty at resentencing was not to channel
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7
In its Pa.R.A.P. 1925(a) opinion, the sentencing court expanded on its
purported reasons for imposing the sentence it did. However, a sentencing
court’s reasons for a particular sentence must be given contemporaneously
with the imposition of the sentence. Commonwealth v. Plasterer, 529
A.2d 37, 39 (Pa. Super. 1987). A more extensive explanation in an opinion
filed pursuant to Rule 1925(a) will not cure a failure to articulate reasons at
the time of sentencing. Id.
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the presumed intent of Judge Peoples, but rather to perform an independent
assessment of the record as a whole, as well as the evidence presented in
the PSI and by the parties at sentencing. Indeed, we note that the
prosecutor, himself, stated that the Commonwealth had “reservations” about
the court sentencing Serrano to the statutory maximum, given that his more
culpable co-defendant would likely be sentenced within the standard range
of the guidelines by another judge. See N.T. Sentencing, 1/15/16, at 4-5.
While the court stated that it was in possession of and had reviewed
an updated PSI, and while Serrano was given the opportunity to present
evidence on his own behalf, we simply cannot ignore the court’s outright
admission that it did not believe its role was to “take an independent look at
the case.” N.T. Sentencing, 1/15/16, at 21. It is clear that the court
believed that, under the unique circumstances of this case, its obligation was
simply to effectuate the intent of the prior sentencing judge. This was not
only an abuse of the court’s discretion, but a complete failure to exercise
that discretion.
Accordingly, we are constrained to vacate Serrano’s judgment of
sentence and remand for resentencing. Upon remand, the trial court
“should start afresh” and “reassess the penalty to be imposed” on Serrano.
Jones, 640 A.2d at 919–20.
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Judgment of sentence vacated. Case remanded for resentencing in
accordance with the dictates of this opinion.8 Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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8
Because we grant Serrano relief on this issue, we need not address his
remaining claims on appeal.
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