J-S20044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ZACHARY EVAN SMITH

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 17 WDA 2019

Appeal from the Judgment of Sentence Entered July 19, 2017

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): CP-33-CR-0000402-2016

BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 29, 2019

Appellant, Zachary Evan Smith, appeals nunc pro tunc from the 

judgment of sentence entered in the Jefferson County Court of Common Pleas, 

following his jury trial convictions for possession with intent to deliver

(“PWID”) and possession of a controlled substance, and his bench trial 

convictions for disregarding traffic lanes and speeding.

1

 We affirm. 

The relevant facts and procedural history of this case are as follows. On 

January 17, 2016, Appellant crashed his vehicle on Interstate 80. Emergency 

responders noticed footprints in the snow from the car to the woods and told 

police this information when they arrived. Police followed the footprints and 

found a backpack that contained cocaine sitting behind a tree. Police 

____________________________________________

1 35 P.S. §§ 780-113(a)(30), (a)(16); 75 Pa.C.S.A. §§ 3309(1), 3361, 

respectively. 
J-S20044-19

- 2 -

connected Appellant to the backpack. The Commonwealth charged Appellant 

with PWID and other offenses related to the incident. On November 9, 2016, 

Appellant filed a motion to suppress the backpack. The court denied the 

suppression motion on February 2, 2017. On June 20, 2017, a jury convicted 

Appellant of PWID and possession of a controlled substance; and the court 

convicted Appellant of the traffic offenses. The court sentenced Appellant with 

the benefit of a Presentence Investigation (“PSI”) Report on July 19, 2017, to 

an aggregate term of 54 months’ to 10 years’ imprisonment. Appellant timely 

filed a post-sentence motion on Monday, July 31, 2017. The court denied the 

post-sentence motion on August 8, 2017.

On October 20, 2017, Appellant timely filed pro se a petition pursuant 

to the Post-Conviction Relief Act (“PCRA”),2 which requested reinstatement of 

his direct appeal rights nunc pro tunc. The PCRA court appointed counsel on 

November 1, 2017, and held a hearing on May 29, 2018. On September 6, 

2018, the PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc. 

Appellant timely filed a direct appeal nunc pro tunc on September 19, 2018. 

On September 21, 2018, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant timely filed a Rule 1925(b) statement on September 24, 2018. 

Appellant raises the following issue for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION IN 

____________________________________________

2 42 Pa.C.S.A. §§ 9541-9546. 
J-S20044-19

- 3 -

ENTERING ITS JULY 19, 2017 SENTENCING ORDER IN THE 

WITHIN CASE?

(Appellant’s Brief at 3). 

Appellant argues the court imposed a blanket sentence based on his 

convictions and did not consider the particular facts and circumstances of his 

case. Appellant submits the court’s lack of meaningful consideration of 

Appellant’s situation resulted in an unreasonable sentence. As presented, 

Appellant challenges the discretionary aspects of his sentence. See 

Commonwealth v. Mola, 838 A.2d 791 (Pa.Super. 2003) (stating claim that 

court imposed blanket sentence challenges discretionary aspects of 

sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 

1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that 

sentencing court failed to consider or did not adequately consider certain 

factors implicates discretionary aspects of sentencing). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910 

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing 

issue: 

[W]e conduct a four-part analysis to determine: (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, 42 

Pa.C.S.A. § 9781(b). 
J-S20044-19

- 4 -

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating that there is a substantial question 

as to the appropriateness of the sentence under the Sentencing Code. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 

2119(f). “The requirement that an appellant separately set forth the reasons 

relied upon for allowance of appeal furthers the purpose evident in the 

Sentencing Code as a whole of limiting any challenges to the trial court’s 

evaluation of the multitude of factors impinging on the sentencing decision to 

exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112 

(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387 

(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks 

omitted). 

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa.Super. 2003). 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 
J-S20044-19

- 5 -

process.” Sierra, supra at 912-13. A claim that a sentence is manifestly 

excessive might raise a substantial question if the appellant’s Rule 2119(f) 

statement sufficiently articulates the manner in which the sentence imposed 

violates a specific provision of the Sentencing Code or the norms underlying 

the sentencing process. Mouzon, supra at 435, 812 A.2d at 627. Generally, 

“[a]n allegation that a sentencing court failed to consider or did not adequately 

consider certain factors does not raise a substantial question that the sentence 

was inappropriate.” Cruz-Centeno, supra at 545 (internal quotation marks 

omitted). A claim that the court imposed a blanket sentencing policy does 

raise a substantial question of whether the sentence violates the Sentencing 

Code. Mola, supra at 793. 

Instantly, Appellant properly preserved his discretionary aspects of 

sentencing claim in his post-sentence motion and Rule 2119(f) statement. 

See Evans, supra. Appellant’s Rule 2119(f) statement articulated his claim 

regarding the court’s alleged use of a blanket policy for drug dealers, which 

arguably raises a substantial question for our review. See Mola, supra. 

Our standard of review concerning the discretionary aspects of 

sentencing is as follows: 

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 
J-S20044-19

- 6 -

partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision. 

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal 

denied, 586 Pa. 723, 890 A.2d 1057 (2005). 

Pursuant to Section 9721(b), “the court shall follow the general principle 

that 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). “[T]he court shall make as 

part of the record, and disclose in open court at the time of sentencing, a 

statement of the reason or reasons for the sentence imposed.” Id. The record 

as a whole must reflect the sentencing court’s consideration of the facts of the 

case and the defendant’s character. Commonwealth v. Crump, 995 A.2d 

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 

(2010). “In particular, the court should refer to the defendant’s prior criminal 

record, his age, personal characteristics and his potential for rehabilitation.” 

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 

582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct. 

2984, 162 L.Ed.2d 902 (2005). 

Here, the trial court had the benefit of a PSI report at sentencing and 

stated its reasons for Appellant’s sentence on the record. Therefore, we can 

presume the court considered the relevant facts when sentencing Appellant. 

See Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating 
J-S20044-19

- 7 -

where sentencing court had benefit of PSI, law presumes court was aware of 

and weighed relevant information regarding defendant’s character and 

mitigating factors). 

The trial court addressed Appellant’s discretionary aspects of sentencing 

claim as follows: 

Here it is unnecessary to make a presumption based on the 

existence of a [PSI], because the record clearly reflects that 

the [c]ourt did in fact consider [Appellant] as an individual, 

not merely as a statistic to be included in a “blanket 

sentencing policy” regarding a specified class of drug 

offenders.

In possession of [Appellant’s PSI] report and having 

presided at his omnibus hearing and trial, the [c]ourt was 

well aware of his personal circumstances and acknowledged 

a variety of his characteristics and behaviors as inherently 

positive. [The court] was not sentencing [Appellant] in a 

vacuum, though; it was sentencing him for committing a 

crime that, in light of those circumstances and

characteristics, could only be explained as a crime 

motivated by greed. In that regard, [the court] was acutely 

aware that [Appellant] did not fit the typical drug-dealer 

mold─that he was not an addict trying to feed his addiction 

or a young man with an unfortunate upbringing and limited 

opportunities who viewed the drug trade as his best chance 

for success. And it was [Appellant’s] individual 

circumstances; it was the fact that he was a “good kid”

without a reasonable excuse for getting involved in the drug 

trade; it was the deliberative nature of a young man not 

driven by addiction facilitating the sale of a substantial 

quantity of crack cocaine that informed the [c]ourt’s 

sentencing decision. Speaking directly to [Appellant] before 

announcing the sentence, [the court] clearly stated as 

much. 

[Appellant] plainly does not agree that the circumstances 

warranted a 41⁄2 year minimum. [Appellant] thinks his 

essentially untainted history entitled him to a lesser 

sentence and is effectively asking the Superior Court to 
J-S20044-19

- 8 -

reassess the circumstances and weigh in his favor factors

this [c]ourt already deemed to be aggravating. To that end, 

[Appellant] couches his request in appropriate legal terms, 

alleging that the [c]ourt imposed a “blanket sentencing 

policy” that overlooked him as an individual. The record 

says differently, though, as the record reflects an

individualized sentence in which the [c]ourt took account of 

and conscientiously weighed the relevant sentencing

factors. As such, [the record] reflects a sentence that was 

not unreasonable and should be affirmed as an appropriate 

exercise of the [c]ourt’s sentencing discretion. 

(Trial Court Opinion, filed September 25, 2018, at 1-2) (internal citations 

omitted). The record supports the trial court’s rationale. See Crump, supra; 

Hyland, supra. Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/29/2019