J-S11002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES WALLACE SMITH,
Appellant No. 1031 WDA 2015
Appeal from the Judgment of Sentence of May 4, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008899-2014
BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JUNE 20, 2017
Appellant, James Wallace Smith, appeals from the judgment of
sentence entered on May 4, 2015 in the Court of Common Pleas of Allegheny
County, as made final by the denial of post-sentence motions. We affirm.
On March 30, 2014, Appellant was arrested and charged with the
following offenses: (count one) robbery – serious bodily injury, 18 Pa.C.S.A.
§ 3701(a)(1)(i); (count two) burglary, 18 Pa.C.S.A. § 3502(a)(4); (count
three) aggravated assault, 18 Pa.C.S.A. § 2702(a)(4); (count four)
possession of a firearm with an altered manufacturer’s number, 18 Pa.C.S.A.
§ 6110.2(a); (count five) carrying firearm without a license, 18 Pa.C.S.A.
§ 6106; (count six) escape, 18 Pa.C.S.A. § 5121(a); (count seven) person
not to possess a firearm, 18 Pa.C.S.A. § 6105(a); (count 8) possessing
instruments of crime, 18 Pa.C.S.A. § 907(a); (count nine) simple assault, 18
*Former Justice specially assigned to the Superior Court.
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Pa.C.S.A. § 2701(a); and, (count 10) possessing instruments of crime, 18
Pa.C.S.A. § 907(a).
Appellant appeared at a preliminary hearing on July 2, 2014, where he
was represented by an attorney from the public defender’s office. After the
hearing, the magisterial district judge dismissed Appellant’s escape charge.
The dismissal of that charge was not recorded on the docket and Appellant
was formally arraigned on that offense.
On October 30, 2014, a different attorney from the public defender’s
office filed a motion for a continuance on behalf of Appellant so that
Appellant could undergo a competency evaluation by the Allegheny County
Behavioral Assessment Unit. The trial court granted that motion and
rescheduled the case for February 9, 2015. On February 9, 2015, a third
public defender filed a written motion for a continuance because Appellant’s
assigned counsel was unavailable. The motion alleged that, because of
Appellant’s intellectual deficits, the Behavioral Assessment Unit psychiatrist
stated that Appellant’s counsel would need to explain things to him carefully,
slowly and repeatedly. Although the trial court conducted a hearing on
Appellant’s motion, the proceeding was not transcribed. Ultimately, the
court denied that motion.
During the afternoon of February 9, 2015, Appellant, represented by
yet another public defender, entered a guilty plea to the following charges:
robbery (count one); burglary (count two); aggravated assault (count
three); possession of a firearm with an altered manufacturer’s number
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(count four); carrying a firearm without a license (count five); person not to
possess a firearm (count seven); possessing instruments of crime (count
eight); and, simple assault (count nine). According to Appellant’s written
judgment of sentence, the charges of escape (count six) and possessing
instruments of crime (count 10) were withdrawn.
On May 4, 2015, the trial court sentenced Appellant to serve four to
eight years of incarceration for robbery (count one), two to four years of
incarceration for possession of a firearm with an altered manufacturer’s
number (count four), and one to two years’ incarceration for carrying a
firearm without a license (count five). The trial court ordered Appellant’s
sentences to run consecutively to one another. No further penalty was
imposed at the remaining counts. Thus, Appellant received an aggregate
sentence of seven to 14 years of incarceration.
Appellant filed a post-sentence motion to reconsider sentence on May
14, 2015. Following a hearing on June 3, 2015, the court denied Appellant’s
post-sentence motion.
Appellant filed a timely notice of appeal on July 2, 2015. On
September 17, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. After receiving several
extensions of time, Appellant filed his concise statement on April 29, 2016.
The court subsequently issued an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following claims for our review.
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Did the trial court abuse its discretion by failing to grant the
motion for continuance when [Appellant’s intelligence quotient
(IQ)] was just 57, his attorney was unavailable, and a
court-appointed doctor had required that information be
explained “carefully, slowly and repeatedly” for Mr. Smith to
stand trial?
Did the trial court fail to adequately consider and apply all of the
relevant sentencing criteria under 42 Pa.C.S.A. § 9721(b)
(sentencing generally; general standards) and 42 Pa.C.S.A.
§ 9725 (total confinement) when it sentenced [Appellant] to
seven to 14 years of incarceration?
Appellant’s Brief at 5.
In his first claim, Appellant asserts that the trial court abused its
discretion in denying his motion for a continuance on February 9, 2015. At
the time of the postponement request, substitute counsel appeared in place
of Appellant’s assigned public defender. Citing a behavioral assessment
from June 2014, which stated that Appellant was marginally competent to
stand trial and that his attorney would have to explain concepts “carefully,
slowly, and repeatedly,” substitute counsel argued in the postponement
motion that Appellant’s assigned attorney would need additional time in
which to prepare. To support his claim on appeal that the trial court abused
its discretion in denying the postponement motion, Appellant points to
questions he raised about the adequacy of his representation during the
course of his plea hearing. For additional support, Appellant cites
statements in his presentence report indicating that he was confused about
the charges against him and that he would not have pled guilty if he had a
greater understanding of the case. Under these circumstances, Appellant
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maintains that the interests of justice required the trial court to grant his
request for a continuance.
Rule 301 of the Pennsylvania Rules of Criminal Procedure, which
governs the granting of continuances, provides in pertinent part:
(a) The court may, in the interests of justice, grant a continuance, of its
own motion, or on the motion of either party[;]
(b) A motion for continuance on behalf of the defendant shall be made
not later than forty-eight hours before the time set for the trial. A
later motion shall be entertained only when the opportunity therefor
did not previously exist, or the defendant was not aware of the
grounds for the motion, or the interests of justice require it.
Pa. R.Crim. P. 301.
“The grant or denial of a motion for a continuance is within the sound
discretion of the trial court and will be reversed only upon a showing of an
abuse of discretion.” Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa.
2000) (citations omitted). For purposes of this inquiry, “an abuse of
discretion is not merely an error of judgment[; r]ather, discretion is abused
when the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence or the record[.]” Id.
The parties do not dispute that Appellant’s request for a continuance
was not made forty-eight hours before the time set for trial. We must
consider, then, whether the trial judge abused his discretion in finding that
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the interests of justice did not warrant granting Appellant’s postponement
request. After careful review, we discern no abuse of discretion.
The trial court reasoned as follows in rejecting Appellant’s motion for a
continuance.
In the case at hand, the [t]rial [c]ourt’s denial of [Appellant’s]
motion for a continuance cannot logically be classified as
unreasonable. [Appellant’s] attorneys presumably prepared him
for the case well ahead of time and explained matters as the
case went forward. [Additionally, a more contemporaneous
psychiatric report issued in November 2014 found Appellant to
be competent to stand trial.] There is no indication that the lack
of additional time influenced [Appellant’s] decision to plead
guilty (or to elect not to withdraw his plea) or in any way led to
a miscarriage of justice. Although [Appellant] indicated in his
colloquy form that he was initially unsatisfied with the legal
advice and representation of his attorney, he confirmed multiple
times at the time of his plea that he was indeed satisfied. He
further confirmed to the [t]rial [c]ourt that, despite his earlier
answers on the colloquy form, he also had been given enough
time to consult with his attorney before entering his plea.
Finally, [Appellant] also confirmed that any physical or mental
illness he had did not prevent him from understanding the
nature of the proceedings and that he was making a voluntary
decision to plead guilty. Months afterward at the sentencing
hearing, [Appellant] stated that although he had considered
withdrawing his plea, he ultimately decided against it. All of this
evidence in the record demonstrates that despite his intellectual
disability and mental health issues, [Appellant] was provided
with sufficient legal advice and representation as well as
adequate time to consider the nature and consequences of his
actions in deciding to plead guilty. The suggestion that
[assigned counsel’s] absence on the day of [Appellant’s] plea
hearing justified a continuance on its own is illogical, as it
implies that only assigned counsel was capable of properly
explaining the case to [Appellant]. The conclusion that the
[t]rial [c]ourt’s decision to deny [Appellant’s] motion for a
continuance under these circumstances constituted an error
rising to the level of an abuse of discretion is totally unfounded.
Trial Court Opinion, 7/15/16, at 7-8.
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Based upon our own assessment of the certified record, we agree with
the trial court that the interests of justice did not warrant a continuance of
Appellant’s trial date.
In his second issue, Appellant contends that the trial court abused its
discretion in imposing a manifestly excessive sentence without considering
the factors identified in 42 Pa.C.S.A. § 9721(b). Appellant also argues that
the court placed undue weight on a prior, unrelated juvenile offense. These
claims challenge the discretionary aspects of Appellant’s sentence.
Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), appeal
denied, 25 A.3d 328 (Pa. 2011).
“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. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
(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
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sentence appealed from is not appropriate under the Sentencing
Code, 42 [Pa.C.S.A.] § 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when
a court revokes probation and imposes a new sentence, a criminal defendant
needs to preserve challenges to the discretionary aspects of that sentence
either by objecting during the revocation sentencing or by filing a
post-sentence motion”). In this case, Appellant filed a timely notice of
appeal and properly preserved his claims in a post-sentence motion.
Appellant’s brief also contains a statement pursuant to Pa.R.A.P. 2119(f).
Thus, we turn to whether the appeal presents a substantial question.
As we have explained:
The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.
Generally, however, in order to establish that there is a
substantial question, the appellant must show actions by the
sentencing court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted).
In his Rule 2119(f) statement, Appellant contends that the trial court
“failed to consider the relevant criteria under 42 Pa.C.S.A. § 9721(b), and,
instead, focused on the seriousness of the crimes.” Appellant’s Brief at 32.
This Court has held that a defendant presents a substantial question for
review where he challenges the sentencing court’s failure to consider the
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factors found in § 9721(b). See Commonwealth v. Derry, 2016 WL
6776292, *6 (Pa. Super. Nov. 15, 2016); see also Commonwealth v.
Cartrette, 83 A.3d 1030, 1042-1043 (Pa. Super. 2013) (en banc) (in appeal
from VOP sentence, substantial question presented by claim that sentencing
court did not consider appropriate sentencing factors found in § 9721(b)).
Moreover, Appellant claims that the trial court overlooked his diminished
cognitive abilities and the fact that he was easily manipulated by others.
This Court has recognized a substantial question where the trial court fails to
consider a defendant’s individualized needs. Commonwealth v. Serrano,
2015 WL 6776287, *2 (Pa. Super. Nov. 15, 2016). Accordingly, we now
turn to the merits of Appellant's sentencing claims.
In sentencing Appellant, the trial court was required to “consider the
general principles and standards of the Sentencing Code.” Commonwealth
v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses
these general principles in the following manner:
the sentence imposed should call for confinement that is
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.
42 Pa.C.S.A. § 9721(b). In addition, 42 Pa.C.S.A. § 9725 permits the trial
court to impose a sentence of total confinement “if, having regard to the
nature and circumstances of the crime and the history, character, and
condition of the defendant, it is of the opinion that the total confinement of
the defendant is necessary because: (1) there is undue risk that during a
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period of probation or partial confinement the defendant will commit another
crime; (2) the defendant is in need of correctional treatment that can be
provided most effectively by his commitment to an institution; or (3) a
lesser sentence will depreciate the seriousness of the crime of the
defendant.”1 42 Pa.C.S.A. § 9725.
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1
Our review is further guided by the following provisions of sentencing code:
§ 9781. Appellate review of sentence
(c) Determination on appeal.--The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(Footnote Continued Next Page)
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Here, the trial court offered the following explanation for the sentence
imposed in this case:
[Appellant’s] additional assertions that the [t]rial [c]ourt failed to
adequately consider and apply the relevant sentencing criteria
and that it solely focused on the gravity of the offense at the
expense of other relevant factors are without merit. It is clear
from the record that the [t]rial [c]ourt considered not only the
gravity of the offense, but also numerous other factors in
deciding upon an appropriate sentence, including [Appellant’s]
acceptance of responsibility for his actions, his history of
intellectual disability and mental health problems, and the
testimony of a number of witnesses. Nowhere in the record is
there any evidence or indication that the [t]rial [c]ourt did not
actually consider these factors in sentencing, or that it focused
only on the serious nature of the offenses committed and
ignored or discounted other considerations as a result. Beyond
mere speculation and bold assertions, there is no support for the
claim that the [t]rial [c]ourt abused its discretion in sentencing.
[Appellant’s] next argument [is] that the [t]rial [c]ourt relied on
improper factors in its sentencing decision. [Appellant]
specifically argues that the [t]rial [c]ourt considered testimony
about a prior juvenile adjudication unrelated to the case at issue.
The [t]rial [c]ourt acted well within its discretion in considering
[Appellant’s] juvenile record, though, and [Appellant’s]
argument fails to demonstrate an abuse of that discretion.
The Pennsylvania Supreme Court has held that while a
defendant’s juvenile record could not be used as evidence in
another court, it may be admitted for sentencing purposes.
Commonwealth v. Baker, 614 A.2d 663, 676 (Pa. 1992). The
Court reasoned that to deprive the courts of the right to be
_______________________
(Footnote Continued)
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781.
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informed of and to consider the history and background of the
person subject to sentence may result in sentences which are
unjust and unfair to both society and defendants. Id. It further
reasoned that the judge is entitled to all of the material facts to
inform him as to what kind of offender he is dealing with to
assist him in determining the appropriate penalty. Id.
With this precedent in mind, it is clear in the case at hand that
[the trial court’s] consideration of this factor was not improper,
as this was a material matter relevant to determining an
appropriate sentence. The [t]rial [c]ourt was entitled to consider
these facts and was not required to ignore or disregard
[Appellant’s] actions as a juvenile in sentencing. In particular,
[Appellant’s] past attempted carjacking episode was instructive
in informing the [t]rial [c]ourt as to the nature of the offender it
was dealing with and was directly related to the protection of the
public that must be considered in crafting a just sentence.
Therefore, the [t]rial [c]ourt did not abuse its discretion in taking
[Appellant’s] juvenile record into account for sentencing
purposes.
Trial Court Opinion, 7/15/16, at 4-6.
Based upon the transcript of Appellant’s sentencing hearing and the
foregoing rationale for Appellant’s punishment, we discern no abuse of the
trial court’s discretion. Before imposing a sentence of total confinement, it is
evident that the trial court carefully considered the need to protect the
public, the gravity of Appellant’s conduct and its potential impact on the
community, and Appellant’s rehabilitative needs. Ultimately, the trial court
concluded that Appellant’s continued involvement with criminal activity,
particularly violent offenses, showed that a more lenient sentence would fail
to ensure that Appellant received the rehabilitative programming that he
needs. The record firmly supports these assessments. Accordingly, we see
no reason to disturb the sentence imposed in this case.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
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