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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN W. SMITH :
:
Appellant : No. 596 MDA 2021
Appeal from the Judgment of Sentence Entered March 30, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001767-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED MAY 10, 2022
Justin W. Smith appeals from the judgment of sentence imposed
following an Alford plea.1 In accordance with that plea, Smith consented to
the imposition of a sentence for the offenses of simple assault and indecent
assault by forcible compulsion.2 Correspondingly, the court sentenced Smith
to time served to twenty-three months of incarceration on the former count
and seventeen to thirty-four months on the latter count, to be served
consecutively and thereafter followed by three years of probation. On appeal,
Smith singularly asserts that the sentencing court abused its discretion in
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Retired Senior Judge assigned to the Superior Court.
1See North Carolina v. Alford, 400 U.S. 25 (1970). Specifically, “a person
entering an Alford plea claims innocence, but consents to the imposition of a
prison sentence.” Commonwealth v. Pasture, 107 A.3d 21, 23 n. 1 (Pa.
2014).
2 See 18 Pa.C.S.A. § 3126(a)(2) and 18 Pa.C.S.A. § 3126(a)(2), respectively.
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crafting his aggregate sentence. After a thorough review of the record,
inclusive of a detailed perusal of the sentencing transcript, we conclude that
Smith has failed to demonstrate that the sentencing court abused its
discretion. Consequently, we are constrained to affirm.
In March 2020, Smith was charged with having committed five criminal
offenses, inclusive of the two that were the subject of his Alford plea.3 Had
this matter gone to trial, the Commonwealth asserted that it would have been
able to prove the following:
On March 13th of 2020, the Fairview Township Police
Department were advised that the victim was at Harrisburg
Hospital reporting an assault. The officer responded to the hospital
and met with the nurse.
The victim disclosed that she and [Smith], her boyfriend and
father to her child, were in an argument the previous night, day
into the night. She stated that she and [Smith] got into an
argument because [Smith] was masturbating in bed where they
both were. She believed this to be disrespectful and she smacked
him.
This caused [Smith] to throw her to the floor. While on the
floor, [Smith] held the victim’s arms down with his knees and then
inserted his penis into her mouth. The victim bit him, drawing
blood and causing injury that the police later noted.
That was not the only assault that occurred that day. They
got into another argument and [Smith] used his forearm and
pressed it against the victim’s throat. She indicated that she was
unable to breathe. And while she did not black out, everything got
hazy while he was preventing her from being able to breathe. At
that point they both realized that their son was awake and the
altercation ended.
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3 The three remaining charges were dismissed by nolle prosequi.
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Early in the morning on the 13th, [Smith] and the victim
began to argue again. This was over pornography and the
computer being disconnected. At that time [Smith] grabbed the
victim and tried to drag her out of the residence, but she was able
to grab on to the refrigerator to prevent him from doing that.
During the altercation she received a rug burn to her elbow
and scrapes and bruises on her arms and knees. She also suffered
a contusion to her head. These were all noted at the hospital and
swabs were taken as a part of a rape kit. This was to have occurred
at 6 Lewisberry Road, Lot 13, New Cumberland, Pennsylvania,
which would have been in York County in Fairview’s jurisdiction.
Alford Plea Hearing, 1/12/21, at 8-10. Following this recitation, Smith agreed
that “if [the] evidence were presented to a jury … [he] could be found guilty
of simple assault and indecent assault[.]” See id., at 10.
The court accepted Smith’s Alford plea and sentenced him,
consecutively, for those two offenses, which Smith has ascertained to be an
aggregate sentence of “forty to fifty-seven months [of] incarceration, followed
by three years of probation.” Appellant’s Brief, at 6 (internal parentheses
omitted). In crafting its sentence, the court expressly indicated that it had
reviewed the pre-sentence investigation (PSI) report generated in Smith’s
case. See Sentencing Transcript, 3/30/21, at 2. The court also found that
Smith was “a danger to society, [given that] the nature of this crime was
violent[,]” and that he had a history of “not accepting accountability for his
actions.” Id., at 13.
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While Smith, himself, engaged in various filings after sentencing,4
Smith’s counsel filed a timely post-sentence motion, which was denied.
Following denial of this motion, Smith filed a timely notice of appeal. The
relevant parties have complied with their respective obligations under
Pennsylvania Rule of Appellate Procedure 1925, and as such, this appeal is
ripe for review.
On appeal, Smith challenges:
1. Whether the aggregate sentence of forty to fifty-seven months
of incarceration constitutes an abuse of discretion when the
sentence imposed is inconsistent with the gravity of the
offenses and protection of the public and further did not
consider relevant mitigating factors?
See Appellant’s Brief, at 4.
In summary, Smith contends that the “aggregate sentence given was
not consistent to the weight of the offenses [Smith] gave an Alford plea to.”
Id., at 7. Specifically, Smith claims that his sentence was “manifestly
excessive” due to the lower court’s failure “to acknowledge relevant factors,
such as the facts of the case, [Smith] taking responsibility for his actions, the
wishes of the victim in the case, and that the sentence given is punitive in
nature, rather than rehabilitative.” Id., at 9.
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4 As the Commonwealth identifies, Smith filed a pro se motion to appeal,
seeking to withdraw his Alford plea. See Appellee’s Brief, at 5. Moreover,
Smith filed a petition potentially cognizable under the Post Conviction Relief
Act. See 42 Pa.C.S.A. § 9541-9546. Eventually, the PCRA petition would be
withdrawn.
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We initially note that the standard of review employed in claims
challenging the discretionary aspects of a sentence is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, 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. Antidormi, 84 A.3d 756, 760 (Pa. Super. 2014) (citation
omitted). However, appellate review in this domain is not granted as of right.
See Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Before we reach the merits of this issue, we must engage in a four
part analysis to determine: (1) whether the appeal is timely; (2)
whether [an a]ppellant preserved his issue; (3) whether [an
a]ppellant's brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence [pursuant to Pa.R.A.P. 2119(f)];
and (4) whether the concise statement raises a substantial
question that the sentence is appropriate under the sentencing
code. The third and fourth of these requirements arise because
[an a]ppellant's attack on his sentence is not an appeal as of right.
Rather, he must petition this Court, in his concise statement of
reasons, to grant consideration of his appeal on the grounds that
there is a substantial question. Finally, if the appeal satisfies each
of these four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citation and
internal brackets omitted).
The Commonwealth concedes, and we agree, that Smith has satisfied
the first three requirements necessary for merit review of his discretionary
aspects of sentencing claim. See Appellee’s Brief, at 11 (writing that Smith
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filed “a timely appeal to this Court, preserv[ed] the issue on appeal through
his post-sentence motions, and includ[ed] a Pa.R.A.P. 2119(f) statement in
his brief”). Therefore, we must determine whether Smith has raised a legally
cognizable substantial question.
This Court evaluates what constitutes a substantial question on a case-
by-case basis. See Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super.
2017). “A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge's actions 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quotation
and quotation marks omitted).
Although the Commonwealth avers that Smith has not raised a
substantial question, see Appellee’s Brief, at 12, we find that Smith’s belief
as to the manifest excessiveness of his sentence, as an aggregated sentence,
in conjunction with the court’s apparent failure to acknowledge “relevant
factors,” e.g., Smith’s rehabilitative needs and the gravity of the offenses, see
Appellant’s Brief, at 9, establishes a substantial question. See
Commonwealth v. Derry, 150 A.3d 987, 992 (Pa. Super. 2016) (finding a
substantial question when that appellant maintained the court “failed to
consider relevant sentencing criteria, including the protection of the public,
the gravity of the underlying offense and the rehabilitative needs of
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[a]ppellant, as 42 Pa.C.S.[A.] § 9721(b) requires”) (citation omitted); see
also Commonwealth v. Knox, 165 A.3d 925, 929-30 (Pa. Super. 2017) (“A
claim that the trial court focused exclusively on the seriousness of the crime
while ignoring other, mitigating circumstances … raises a substantial
question.”); Commonwealth v. Akhmedov, 236 A.3d 307, 328 (Pa. Super.
2019) (en banc) (stating that “an excessive sentence claim – in conjunction
with an assertion that the court failed to consider mitigating factors – raises a
substantial question”) (citation omitted).
Smith illuminates that, accounting for his prior record score of two, a
standard sentence at his simple assault count would have resulted in
“restorative sanctions to nine months incarceration,” Appellant’s Brief, at 12
(internal parentheses omitted), and, on his indecent assault count, a standard
sentence would have amounted to three to fourteen months of incarceration.
See id. Smith also concedes that the court’s finding that both crimes were
domestic violence-oriented could have increased Smith’s sentences at both
counts by three to six months, respectively. See id., at 13; 204 Pa. Code §
303.13(a)(3)-(4). Additionally, Smith acknowledges the court’s determination
that Smith “was blaming the victim for his action, that he was refusing to take
responsibility for his actions by entering an Alford plea, and that he is a
danger to society.” Id., at 14. Consequently, the court could consider these
bases to be aggravating circumstances and lead to a further sentence increase
of three months and six months of incarceration, respectively. See id., at 14-
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15. In total, by Smith’s calculation, the resulting consecutive sentence should
have been, in the aggregate, eighteen to thirty-seven months of incarceration.
See id., at 15. Instead, Smith’s sentence exceeded that figure without an
adequate explanation from the sentencing court why it deviated from the
sentencing guidelines. See id., at 15-16.
Smith contends that the three reasons given by the sentencing court to
justify its sentencing beyond the guidelines were erroneous. First, Smith
asserts that he took responsibility for his actions, believing what he did to be
wrong.5 To that point, Smith identifies that he is taking a violence prevention
program that was known to the court at sentencing. Second, to the extent
that the court saw Smith as victim blaming, Smith emphasizes that the fact
that the victim hit him first during their altercation was not relevant to his own
actions, fully wishing “to take responsibility … in the altercation.” Id., at 19.
Third, he asserts, the court did not develop its determination that an
aggravated sentence was warranted because Smith’s crimes were violent and
that he was a danger to society.
Conversely, Smith believes that the court failed to incorporate the
victim’s wishes in making its sentencing determination. Smith states that “the
victim indicated that she wished for [him] to be home[ ] and to receive
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5 However, Smith “did not believe he was guilty of the [i]ndecent [a]ssault”
because he “believed the victim to be initiating the sexual act, therefore he
did not see himself as forcing the act.” Appellant’s Brief, at 17.
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rehabilitation through taking his prescribed medication and receiving
counseling.” Id., at 20.
As stated, supra, the sentencing court identified on the record that it
had read Smith’s PSI report.
Where pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information
regarding the defendant's character and weighed those
considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself. In
order to dispel any lingering doubt as to our intention of engaging
in an effort of legal purification, we state clearly that sentencers
are under no compulsion to employ checklists or any extended or
systematic definitions of their punishment procedure. Having been
fully informed by the pre-sentence report, the sentencing court's
discretion should not be disturbed. This is particularly true, we
repeat, in those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the weighing
process took place in a meaningful fashion. It would be foolish,
indeed, to take the position that if a court is in possession of the
facts, it will fail to apply them to the case at hand.
Commonwealth v. Best, 120 A.3d 329, 348-49 (Pa. Super. 2015) (citation
omitted). Moreover, we note that sentencing courts are in “the best position
to view [a] defendant’s character, displays of remorse, defiance or
indifference, and the overall effect and nature of the crime.” Commonwealth
v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citation omitted). Additionally,
sentencing courts are not obligated to craft a sentence that squarely comports
with the sentencing guidelines; rather, those guidelines are guideposts that
must be considered, and if a court is to deviate from them, it must explain its
reasons for doing so. See Commonwealth v. Sessoms, 532 A.2d 775, 780-
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81 (Pa. 1987).
Preliminarily, we note that Smith has not provided any factually
analogous or on-point authority to demonstrate an abuse of discretion by the
sentencing court. Smith, via citations to the record, primarily highlights that
the court misinterpreted his actions/statements or reached erroneous
conclusions that served as the bases to aggravate his offenses, but has
provided no support to demonstrate the necessity of reversal.
Despite Smith’s bald assertions, the record reflects that the court,
armed with a PSI report and having been fully apprised of Smith’s background
and the attendant circumstances surrounding the case6, considered, inter alia,
what it deemed Smith’s lack of accepting responsibility, victim blaming, and
the specific nature of the crimes he was charged with having committed. See
Sentencing Transcript, 3/30/21, at 12-13 (remarking that the court did not
believe Smith had accepted responsibility for his actions: “A, based on the fact
that he entered an Alford plea; and also, even here today he’s still victim
blaming[]”). Those reasons ultimately led to the construction of an aggravated
and consecutive sentencing scheme. The court also stated that it saw Smith’s
crime as a crime of domestic violence, believing Smith to be a danger to
society. See id., at 10, 12-13 (establishing that the court was cognizant of
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6 For example, the Commonwealth remarked to the court that it understood
“that the victim and [Smith] both want [Smith] to go home[.]” Sentencing
Transcript, 3/30/21, at 11.
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Smith’s past convictions, with at least one being factually similar to the
present matter). Furthermore, the court disbelieved Smith when, in the court’s
interpretation, Smith stated that “it was a mutual affray [between Smith and
the victim] and that [they] were both equally responsible[.]” Id., at 13.
The court would later opine:
By stating the various aggravating factors, the [c]ourt was
not attempting to double down on factors already considered in
the PSA [report], but merely show[ing] that the [c]ourt conducted
an in-depth analysis of both mitigating and aggravating factors
before handing down the sentence. Accordingly, based on all the
factors, the [c]ourt properly entered aggravated sentences in this
case.
Trial Court Opinion, 7/29/21, at 8.
Even though the court exceeded the standard sentencing guidelines,
something it has the inherent ability to do, it did not sentence Smith above
the statutory maximum for either of his two offenses, and after reviewing the
PSI report and receiving a panoply of relevant information, it placed on the
record its reasons for deviating from those guidelines.
As the sentencing court was in the best position to decide upon Smith’s
character, his display of remorse, the nature of the crimes he committed, and
the gravity of the offenses as they related to both the victim and the
community, see Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.
2012) (repeating, further, the broad discretion afforded to sentencing courts
in making their determinations), Smith has presented no clear or compelling
basis to warrant reversal, and has failed to demonstrate that the court
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imposed a manifestly excessive sentence. We therefore find his claim on
appeal to be without merit and affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/10/2022
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