Com. v. Winiavski, H. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HASSAN ANDREW WINIAVSKI :
:
Appellant : No. 581 MDA 2017
Appeal from the Judgment of Sentence January 19, 2017
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000288-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 13, 2017
Hassan Andrew Winiavski appeals from the judgment of sentence,
entered in the Court of Common Pleas of Bradford County, following his
conviction of involuntary deviate sexual intercourse (“IDSI”) with a child.1
Winiavski’s counsel seeks to withdraw pursuant to Anders v. California, 368
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). Upon review, we grant counsel’s motion to withdraw and affirm
Winiavski’s judgment of sentence.
Winiavski was charged with three counts of IDSI, and two counts of
corruption of minors.2 He entered a guilty plea on September 26, 2016, to
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1 18 Pa.C.S. § 3123(b).
2 18 Pa.C.S. § 6301(a)(1)(i), (ii).
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* Former Justice specially assigned to the Superior Court.
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one count of IDSI with a child, a felony of the first degree. The court
sentenced Winiavski to 8 to 20 years’ imprisonment.3 On appeal, Winiavski
challenges the discretionary aspects of his sentence, claiming it was excessive
in light of his circumstances, and did not consider his rehabilitative needs.
Winiavski’s counsel, John E. Bender, Esq., has filed a petition to
withdraw pursuant to the requirements set forth in Anders and Santiago.
Our Supreme Court in Santiago held:
[I]n the Anders brief that accompanies court[-]appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations to the
record; (2) refer to anything in the record that counsel believes
arguably supports the appeal; and (3) state counsel’s reasons for
concluding the appeal is frivolous.
Santiago, 978 A.2d at 361. Once counsel has satisfied the procedural
requirements of Santiago, this Court engages in an independent evaluation
of the record to determine if the claims on appeal are wholly frivolous.
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).
Here, counsel’s brief satisfies the necessary procedural requirements.
The brief provides “a summary of the procedural history and facts, with
citations to the record[,]” and raises the issue he believes arguably supports
an appeal. Santiago, 978 A.2d at 361; Brief of Appellant, at 6-14. The brief
further provides a review of the record. Santiago, 987 A.2d at 360; Brief of
Appellant, at 11-13. Counsel’s brief also states his conclusion that the claim
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3 The sentence imposed was at the lower end of the standard sentencing
guideline range. N.T. Sentencing, supra.
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is frivolous and provides the reasoning for this conclusion. Santiago, 978
A.2d at 360; Brief of Appellant, at 13-14. Lastly, counsel notified Winiavski
of his request to withdraw and provided him with a copy of the brief and a
letter explaining his right to retain new counsel or proceed pro se as to any
issues he believes might have merit.4 See Petition to Withdraw, 9/25/17;
Counsel’s Letter to Winiavski, 9/25/17. Counsel having satisfied the
procedural requirements for withdrawal, we must now examine Winiavski’s
claim to determine if the claim is frivolous. Anders, 386 U.S. at 744; Rojas,
874 A.2d at 639.
Winiavski challenges the discretionary aspects of his sentence. A
challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal. See Commonwealth v. Coulverson, 34
A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P. 2119(f). This Court
conducts a four-part analysis to determine:
(1) whether Appellant has timely filed a notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
Appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
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4 Winiavski has not filed a pro se response.
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The court sentenced Winiavski on January 19, 2017. He filed a timely
post-sentence motion on January 24, 2017, wherein he preserved the
sentencing issue, and his appellate brief contains a Rule 2119(f) statement.
See Appellant’s Brief, at 8. An appeal of the discretionary aspects of a
sentence will only be granted when there is a substantial question that the
sentence imposed was not appropriate under the Sentencing Code. 42 Pa.C.S.
§ 9781.
Historically, this Court has found a substantial question exists for
purposes of section 9781 when the Rule 2119(f) statement reveals “a plausible
argument that procedures followed by the sentencing court were either
inconsistent with a specific provision of the Sentencing Code or contrary to
the fundamental norms underlying the sentencing process.”
Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en banc)
(citations omitted). Here, Winiavski’s Rule 2119(f) statement provides:
Appellant challenges the discretionary aspect of [his sentence]
with regards to the length of sentence imposed relative to
Appellant’s lack of prior criminal history. Appellant also challenges
the sentence on the grounds that it was excessive and did not take
into account Appellant’s treatment and rehabilitative needs.
Appellant’s Brief, at 8.
Winiavski has failed to raise a substantial question for our review.
“[T]his Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
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2013). Additionally, the sentencing court had before it a presentence
investigation report. See N.T. Sentencing, 1/19/17, at 2. See also
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“Where pre-
sentence reports exist, we . . . presume that the sentencing judge was aware
of relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”). Furthermore, the
remainder of Winiavski’s Rule 2119(f) statement is essentially a bald claim of
excessiveness. This, too, fails to establish a substantial question.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006) (citing
Commonwealth v. Mouzon, 812 A.2d 626, 627 (Pa. 2002) (“Appellant must
support his assertions by articulating the way in which the court's actions
violated the sentencing code”)). Accordingly, on this ground, too, Winiavski’s
claim does not warrant review. Id.5
We agree with counsel’s conclusions that this claim is frivolous.
Winiavski has not presented a substantial question, and review of the merits
of his challenge to the discretionary aspects of his sentence is unwarranted.
We, therefore, affirm the judgment of sentence and grant counsel’s request
to withdraw.
Judgment of sentence affirmed. Motion to withdraw granted.
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5 Even were we to reach the merits, this sentencing claim would fail. The
sentencing transcript clearly indicates the court’s considered review of all
relevant sentencing factors, specifically including counseling and treatment.
See N.T. Sentencing, supra at 9.
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BENDER, P.J.E., joins the memorandum.
STEVENS, P.J.E., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2017
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