Commonwealth v. Serrano

150 A.3d 470

COMMONWEALTH of Pennsylvania, Appellee

v.Michael SERRANO, Appellant

No. 204 WDA 2016

Superior Court of Pennsylvania.

Submitted September 6, 2016

Filed November 15, 2016

Matthew R. Dombrosky, Altoona, for appellant.

Richard A. Consiglio, District Attorney, Hollidaysburg, and Christopher J. Schmidt, PA Office of Attorney General, Harrisburg, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

OPINION BY LAZARUS, J.:

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 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 , –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (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 Incentive⁵ eligible. 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.

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, seeCommonwealth v. Riggs , 63 A.3d 780, 786 (Pa. Super. 2012) ; (2) failed to consider the defendant's individualized needs, seeCommonwealth v. Ahmad , 961 A.2d 884, 887 (Pa. Super. 2008) ; (3) focused solely on the seriousness of the offense in crafting the sentence, seeCommonwealth v. Coulverson , 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, seeCommonwealth 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 , [ ] 369 Pa.Super. 192, 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 jail term which [appellant] received is a just and appropriate punishment. Id.

Commonwealth v. Jones , 433 Pa.Super. 266, 640 A.2d 914, 919–20 (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. Judg

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