Commonwealth v. Smith, 112916 PASUP, 211 MDA 2016

Docket Nº:211 MDA 2016
Opinion Judge:BOWES, J.
Party Name:COMMONWEALTH OF PENNSYLVANIA, Appellant v. JONATHAN NELSON SMITH, Appellee
Judge Panel:BEFORE: GANTMAN, P.J., BOWES AND PLATT, JJ. Judge Platt Joins the opinion. President Judge Gantman concurs in the result.
Case Date:November 29, 2016
Court:Superior Court of Pennsylvania
 
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2016 PA Super 264

COMMONWEALTH OF PENNSYLVANIA, Appellant

v.

JONATHAN NELSON SMITH, Appellee

No. 211 MDA 2016

Superior Court of Pennsylvania

November 29, 2016

Appeal from the Judgment of Sentence January 4, 2016 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001126-2015.

BEFORE: GANTMAN, P.J., BOWES AND PLATT, [*] JJ.

OPINION

BOWES, J.

The Commonwealth appeals from the January 4, 2016 judgment of sentence and challenges the trial court's refusal to impose the deadly weapons enhancement. We affirm.

The underlying facts of this dispute are as follows. During the evening of September 17, 2014, Jonathan Nelson Smith, Appellee, frequented a number of bars in the Hanover area following a dispute with his girlfriend. After consuming five to seven alcoholic beverages, Appellee approached another patron in order to buy some crack cocaine. This individual, along with two other men, agreed to provide Appellee with the illicit drug, but required a ride to York to obtain it. Appellee agreed to transport the individuals.

While en route to York, Appellee became distracted by one of the passengers and struck a pedestrian, Scott Maitland, with his vehicle. At the time of the accident, Mr. Maitland was crossing the street in a well-lit crosswalk equipped with flashing lights. Mr. Maitland suffered fractures to his skull, nasal bones, ribs, tibia, and fibula, requiring extensive medical treatment, and resulting in permanent injuries. Following impact, Appellee continued along his course, and ultimately, abandoned his vehicle in a parking lot.

That same morning, in an attempt to evade prosecution, Appellee reported his car stolen to the State Police. The State Police transferred the matter to Hanover Borough Police, who contacted Appellee at his residence. After a short discussion in front of his home, Appellee agreed to accompany the officer to the police station. An interview ensued wherein Appellee, at first, continued to insist that the car had been stolen, but then retracted this representation and admitted to his involvement in the hit-and-run accident, including his excessive drinking throughout the evening. Appellee's voluntary confession was documented in his own hand-written statement.

The Commonwealth thereafter charged Appellee with, inter alia, aggravated assault and driving under the influence of alcohol ("DUI"). On October 30, 2015, Appellee entered an open guilty plea to those charges, and the court nolle prossed the remaining counts. Prior to sentencing, the Commonwealth recommended that the court impose the deadly weapons enhancement ("DWE") to Appellee's sentence pursuant to this Court's holding in Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en banc) ("Buterbaugh"), wherein we determined that the DWE could apply to injuries caused by a motor vehicle. The court declined to employ the DWE, and instead imposed a sentence of six-and-a-half to fifteen years incarceration, plus costs and restitution for aggravated assault, and a concurrent thirty days to six months incarceration for the DUI.

The Commonwealth filed a post-sentence motion challenging the discretionary aspects of the sentence, and argued that Buterbaugh obligated the court to apply the DWE to Appellee's sentence. The court denied this motion, and the Commonwealth filed a timely notice of appeal. The court directed the Commonwealth to file a Pa.R.A.P. Rule 1925(b) statement of matters complained of on appeal, with which the Commonwealth complied, and then authored its Rule 1925(a) opinion. This matter is now ready for our review. The Commonwealth raises one question for our consideration: "Whether the trial court erred in failing to apply the deadly weapon enhancement at sentencing?" Commonwealth's brief at 4.

Initially, we note "there is no absolute right to appeal when challenging the discretionary aspect of a sentence." Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citations omitted). An "appeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code." Id. An appellant presents a substantial question when he "sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process." Id. Furthermore, "in order to properly present a discretionary sentencing claim, [an appellant] is required to preserve the issue in either a post-sentence motion or at sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise...

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