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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAR'RON JAMAL SMITH :
:
Appellant : No. 2661 EDA 2022
Appeal from the Judgment of Sentence Entered August 17, 2022
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0004282-2017
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 11, 2023
Kar’ron Jamal Smith appeals from the judgment of sentence following
his open guilty plea to one count of burglary and three counts of robbery.1
Smith challenges the discretionary aspects of his sentence. We affirm.
A prior panel of this Court summarized the facts as follows:
[O]n or about November 2[,] 2016[,] in the County of Chester,
Uwchlan Township[,] [Smith], armed with a deadly weapon and
along with another, did enter an occupied structure adapted for
overnight accommodation with the residents present and asleep.
He entered with the intent to commit a theft within the residence,
and while inside, [Smith] and another did use physical force to
restrain several members of the family in the course of taking their
belongings. Using zip ties[, Smith] and another . . . bound Luke
Wallace, Carter McFadden, Donna [McFadden,] and David
McFadden, pistol-whipping Carter McFadden when she was too
slow to comply. [Smith] and another moved all the residents into
one room to control them, then separated Carter McFadden, took
her to another area of the house and stole property; took David
____________________________________________
1 18 Pa.C.S.A. §§ 3502(a)(1) and 3701(a)(1)(ii), respectively.
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McFadden to another area of the house and stole property[;] and
then ransacked the home.
During the course of the robbery, [Smith] and another stated to
the parents, [“]Which child[”] or [“W]hich one do you like
better[?”] while brandishing a firearm at Luke Wallace and Carter
McFadden. [Smith and his co-conspirator] also informed the
victims that[,] if they left and they stepped outside, that they
would be sniped. DNA evidence placed [Smith] within the confines
of the home at the time of the robbery.
Commonwealth v. Smith, 276 A.3d 208 (Table), No. 1996 EDA 2020, 2022
WL 611018, at *1 (Pa.Super. filed Mar. 2, 2022) (unpublished mem.) (citing
N.T. Guilty Plea Hearing, 12/9/19, at 3-4) (alterations in Smith).
Smith entered an open guilty plea to one count of burglary and three
counts of robbery. He was sentenced on the burglary count to six to 12 years’
incarceration, on each of the first two counts of robbery to seven to 14 years’
incarceration, and on the last count of robbery to five years of probation. The
sentences were ordered to run consecutively for an aggregate term of 20 to
40 years’ incarceration. The parties had agreed to cap the minimum at 20
years.
Smith appealed, and this Court vacated his judgment of sentence and
remanded for resentencing. See id. We found that the trial court had
erroneously attributed the pistol-whipping of Carter McFadden to Smith when
Smith did not admit to the pistol-whipping nor plead guilty to conspiracy or to
any crime involving the infliction of bodily injury. Id. at *7. We concluded:
While the pistol-whipping was not the sole basis for the sentence
imposed, the record reflects that it was clearly a significant
sentencing factor relied upon [by] the trial court. Although the
court later conceded at the hearing on Smith’s motion to modify
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sentence that Smith never admitted to the pistol-whipping, the
court’s ex post facto clarification does not negate the fact that, at
the time of sentencing, it relied, in part, on an impermissible
consideration. Accordingly, we are constrained to vacate Smith’s
judgment of sentence and remand to the trial court for
resentencing in accordance with the dictates of this memorandum.
Id. We further emphasized that although we vacated the judgment of
sentence, we did not “express any opinion as to the reasonableness of the
trial court’s sentence.” Id. at *7 n.10.
Upon remand, the trial court held a hearing and resentenced Smith to
five to ten years’ incarceration on the burglary count and to 14 to 28 years’
incarceration followed by five years’ probation on the robbery counts, for an
aggregate term of 19 to 38 years’ incarceration. In doing so, the court
acknowledged that it did not consider in Smith’s resentence the allegation that
Smith pistol-whipped one of the victims. See Trial Court’s Supplemental
Opinion Pursuant to Pa.R.A.P. 1925(a), filed 3/7/23, at 5 (“Supp. 1925(a)
Op.”). Smith filed a motion to reconsider his sentence, which was denied. This
appeal followed.
Smith raises the following issues:
1. Did the trial court abuse its discretion in sentencing [Smith] in
the aggravated range on Robbery Count Three and Robbery
Count Four without placing reasoning for sentencing in the
aggravated range on these counts?
2. In light of the significantly lower guidelines and the directive
from the Superior Court that this [c]ourt not consider the pistol
whipping of C.M., (a very significant ground relied upon for the
original twenty (20) to forty (40) year aggregate sentence), did
the trial court abuse its discretion in failing to consider the
substantially lower applicable sentencing guidelines imposing a
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substantially similar aggregate sentence to that originally
imposed?
3. Did the trial court err in that there is a discrepancy between
the [c]ourt’s stated intention on the record, the filed “Guideline
Sentence Forms”, and the sentences imposed on Counts 3
through 5?
Smith’s Br. at 2.
Smith challenges the discretionary aspects of his sentence. “The right
to appellate review of the discretionary aspects of a sentence is not absolute,
and must be considered a petition for permission to appeal.” Commonwealth
v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). Before reviewing the merits
of Smith’s claim, we must determine whether: “(1) the appeal is timely; (2)
the appellant has preserved his issue; (3) his brief includes a concise
statement of the reasons relied upon for allowance of an appeal with respect
to the discretionary aspects of his sentence; and (4) the concise statement
raises a substantial question whether the sentence is inappropriate under the
Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super.
2019); see also Pa.R.A.P. 2119(f) (stating that an appellant who challenges
the discretionary aspects of a sentence “shall set forth in a separate section
of the brief a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a sentence”).
Here, Smith filed a timely notice of appeal, included a Rule 2119(f)
statement in his brief, and raised a substantial question. See
Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa.Super. 2004) (finding
substantial question where appellant claimed the sentencing court sentenced
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him in the aggravated range without placing adequate reasons on the record);
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.Super. 2014)
(concluding claim that court imposed sentence outside the standard range
without stating adequate reasons presents a substantial question). However,
Smith failed to preserve his issues by failing to raise them in his post-sentence
motion or at resentencing.
A challenge “to a court’s sentencing discretion must be raised during
sentencing or in a post-sentence motion in order for this Court to consider
granting allowance of appeal.” Commonwealth v. Rush, 959 A.2d 945, 949
(Pa.Super. 2008). “Absent such efforts, an objection to a discretionary aspect
of sentence is waived.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa.Super. 2013) (en banc) (citation omitted). This failure cannot be cured by
submitting the claim in a Rule 1925(b) statement. Commonwealth v.
Watson, 835 A.2d 786, 791 (Pa.Super. 2003).
Smith’s post-sentence motion was limited to the following:
After the Superior Court ordered resentencing, [Smith] received,
largely the same sentence with one (1) to two (2) years “credit”
for good behavior, rather than taking into consideration the
considerably lower guidelines of the appropriate deadly weapons
possessed enhancement and going forth to sentencing without
considering the alleged pistol whipping.
Thus, no consideration was made to address the erroneous use of
the deadly weapon used enhancement, nor the aggravating
circumstance of the alleged pistol whipping, for which [Smith] did
not plead. In essence, this Honorable Court merely applied the
same sentence without uttering the words “deadly weapon used”
or referencing the alleged pistol whipping, both of which were
justifications given during the first sentencing for the initial twenty
(20) to forty (40) year punishment.
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Smith’s Motion to Reconsider, filed 8/23/22, at ¶¶ 4, 5.
Further, at resentencing, Smith argued that the deadly weapon
“possessed” enhancement, as opposed to the “used” enhancement, applied,
and asked the court to impose concurrent, rather than consecutive, sentences
on the robbery counts. See N.T. Resentencing Hearing, 8/17/22, at 33. Smith
also objected to the court’s failure to state its reasons on the record when it
imposed an aggravated sentence on his burglary conviction but made such no
objection with respect to his robbery convictions. See id. at 46.
Notably, Smith failed to raise any of his three issues on appeal in his
post-sentence motion or at resentencing. Rather, he first raised the issues in
his Rule 1925(b) and supplemental Rule 1925(b) statements. Accordingly,
Smith’s issues are waived. See Watson, 835 A.2d at 791.
Even if Smith had preserved his arguments, he would not be entitled to
relief. “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.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super.
2018) (citation omitted). An abuse of discretion occurs where “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.” Id. (citation omitted). In imposing a sentence, the sentencing court
must consider “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.” 42 Pa.C.S.A. § 9721(b).
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Where the court has the benefit of a presentence investigative (“PSI”)
report, we presume the court was aware of all appropriate sentencing factors
and considerations and we consider the requirement that the court place its
reasoning on the record to be satisfied. Commonwealth v. Johnson-
Daniels, 167 A.3d 17, 26 (Pa.Super. 2017). In conducting appellate review,
we may not reweigh the sentencing factors and impose our own judgment in
place of that of the trial court. See Commonwealth v. Macias, 968 A.2d
773, 778 (Pa.Super. 2009).
Smith contends that the trial court abused its discretion in sentencing
him in the aggravated range on two robbery counts without placing its reasons
for sentencing in the aggravated range on the record. Smith’s Br. at 26. Smith
argues that in resentencing him, the court erroneously “relied on the same
exact information” as at the original sentencing hearing. Id. at 27.
“[W]hen a sentence is vacated and the case is remanded to the
sentencing court for resentencing, the sentencing judge should start afresh.”
Commonwealth v. Caple, 121 A.3d 511, 522 (Pa.Super. 2015) (citation
omitted). The judge at the resentencing 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. at 523
(citation omitted). Therefore, appellant’s “conduct since the prior sentencing
hearing is relevant at resentencing.” Id. (citation omitted).
Here, the sentencing judge did take note of new evidence at Smith’s
resentencing hearing. First, the court acknowledged its previous sentencing
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error and its obligation to comply with this Court’s directive upon remand. N.T.
Resentencing Hearing at 4; see also Supp. 1925(a) Op. at 5. The court also
considered the fact that Smith had no disciplinary write-ups since being
incarcerated for approximately two years and had shown a willingness for
rehabilitation and engagement in the prison’s programs. N.T. Resentencing
Hearing at 28-29, 43-44. The court further stated that it had reviewed Smith’s
sentencing memorandum prior to the resentencing hearing, wherein Smith
accepted responsibility for the crime and expressed an eagerness to be a
better father to his young son. Id. at 43; Smith’s Sentencing Memorandum,
filed, 8/16/22, at 1, 5 (unpaginated). The court also permitted Smith to speak
on his own behalf, and he apologized to the victims. N.T. Resentencing
Hearing at 38. The court also acknowledged that seven of Smith’s family
members were present at the resentencing hearing in support of him. Id. at
37.
The court further indicated that it reviewed its notes from the initial
sentencing hearing and recalled the victims’ testimony. Id. at 6. The court
considered the serious nature of the crime and the long-lasting impact of the
crime on the victims. It also had the benefit of a PSI.
After a review of the record, we conclude that the sentencing court did
not abuse its discretion when it resentenced Smith and it adequately stated
on the record its reasons for Smith’s resentence. It is evident that the trial
court considered all relevant factors in fashioning Smith’s resentence. Thus,
no relief is due.
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Smith’s second issue largely repeats the same arguments as in his first
issue. For the reasons previously stated, we find no merit in Smith’s claim. To
the extent Smith argues that the court failed to employ the applicable
sentencing guidelines on the deadly weapon enhancement, the court did, in
fact, apply the deadly weapon “possessed” enhancement, as Smith requested,
and not the “used” enhancement. See Supp. 1925(a) Op. at 5 (citing N.T.
Resentencing Hearing at 33).
Smith’s final claim is that the “Guideline Sentence Forms” filed on the
robbery counts are “incorrect and do not reflect the [sentencing c]ourt’s stated
intent at sentencing.” Smith’s Br. at 35. Smith contends that the forms
improperly indicated that the “used” deadly weapon enhancement was applied
when the court stated at the resentencing hearing that it applied the
“possessed” enhancement. Id. at 33-34.
The sentencing court addressed this issue as follows:
According to [Smith], the Sentence Guideline Forms improperly
contain the term “used” in the “Enhancement” portion of the
Sentence Guideline Forms as it pertains to the [r]obbery charges.
Although the trial court does not directly complete such forms, to
the extent that the Sentence Guideline Forms are inconsistent
with the sentence imposed by the trial court as reflected in the
record, the trial court’s sentence as announced and imposed
would control.
Supp. 1925(a) Op. at 6.
The court adequately addressed the alleged discrepancy. We find no
error.
Judgment of sentence affirmed.
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Judge Stabile joins the memorandum.
Judge Olson concurs in the result.
Date: 12/11/2023
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