Com. v. Greene, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WARNER GREENE :
:
Appellant : No. 545 WDA 2020
Appeal from the Judgment of Sentence Entered December 7, 2018
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000752-2018
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED: April 22, 2021
Warner Greene appeals nunc pro tunc from the judgment of sentence of
sixty to 120 months of incarceration, which was imposed after he pled guilty
to one count of persons not to possess firearms. Appellant’s counsel has filed
a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
Since we have uncovered a potentially meritorious issue, we deny counsel’s
petition to withdraw and remand so that counsel may file a compliant Anders
brief or advocate’s brief.
The facts underlying Appellant’s concision are as follows. On April 8,
2018, Officer Justin Erickson of the Hermitage Police Department was in a
marked police cruiser patrolling in Mercer County when he stopped a vehicle
driven by Appellant for expired registration. While speaking with Appellant,
Officer Erickson observed an unlabeled pill bottle on the console of the van.
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Upon further investigation, Officer Erickson learned that the bottle contained
methadone tablets and that Appellant’s operator’s license had been
suspended. Officer Erickson requested back-up.
Upon arrival of Officer James Brown, Officer Erickson told Appellant to
exit the vehicle. Once Appellant complied, Officer Erickson conducted a
warrantless search of the driver and front passenger areas of the vehicle. As
a result of the search, Officer Erickson recovered two cell phones, two clear
baggies, and a loaded revolver. Appellant was arrested and transported to
the Hermitage Police Department. A search of Appellant incident to his arrest
uncovered a vial with white residue and a small baggie with white residue.
Appellant waived his Miranda v. Arizona, 384 U.S. 436 (1966) rights, and
told officers that the revolver belonged to him and that he did not have a
permit to carry it. Appellant also identified the white substance that was
recovered from his person as cocaine. An inventory search of the vehicle
uncovered additional contraband.
Based on these events and admissions, Appellant was charged with
eleven drug, traffic, and firearm-related offenses. After unsuccessfully
litigating a pretrial motion to suppress the evidence obtained from the traffic
stop and warrantless search of the vehicle, Appellant opted to plead guilty. In
exchange for Appellant’s plea to one count of persons not to possess firearms,
the Commonwealth nolle prossed the remaining charges. The court noted that
Appellant’s firearm was loaded, the offense gravity score was ten, and that
there was no agreement as to what sentence Appellant would receive. On
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December 7, 2018, Appellant was sentenced to a sixty to 120 month term of
incarceration, with credit for 243 days already served.
Appellant filed a timely post-sentence motion, arguing that his sentence
was manifestly excessive, that the court erred in running his sentence
consecutive to one imposed at another docket, and that the court relied upon
a pre-sentence investigation (“PSI”) report that contained a factual error.
After holding a hearing and receiving argument from both sides, the trial court
denied the post-sentence motion. Importantly, the court noted that it was
aware of the typographical error in the PSI when it fashioned Appellant’s
standard-range sentence. Following reinstatement of Appellant’s direct
appeal rights nunc pro tunc, this appeal followed.
In this Court, counsel filed both an Anders brief and a petition to
withdraw as counsel. Accordingly, the following principles guide our review of
this matter:
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof . . . .
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
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directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has also clarified portions of the
Anders procedure as follows:
[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; (3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statues on point that have led
to the conclusion that the appeal is frivolous.
Santiago, supra at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above. As required by Santiago, counsel set
forth the procedural case history, referred to an issue that arguably supports
the appeal, stated his conclusion that the appeal is frivolous, and cited
controlling case law which supports that conclusion. See Anders brief at 5-
8. Additionally, counsel gave Appellant proper notice of his right to
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immediately proceed pro se or retain another attorney.1 See Application for
Leave to Withdraw, 10/22/20. Accordingly, we proceed to an independent
examination of the record in order to discern if any non-frivolous issues exist.
See Commonwealth v. Dempster, 187 A.3d 266, 273 (Pa.Super. 2018) (en
banc).
Counsel identified one issue that arguably supports this appeal:
“Whether the [s]entencing [c]ourt erred as a matter of law or abused its
discretion when ordering an excessive sentence.” Anders brief at 5.
Appellant’s attack on the alleged excessiveness of his sentence
implicates the discretionary aspects of his sentence. Thus, the following
principles apply to our consideration of whether review of the merits of his
claim is warranted. “An appellant is not entitled to the review of challenges
to the discretionary aspects of a sentence as of right. Rather, an appellant
challenging the discretionary aspects of his sentence must invoke this Court’s
jurisdiction.” Commonwealth v. Samuel, 102, A3d 1001, 1006-07
(Pa.Super. 2014). In determining whether an appellant has invoked our
jurisdiction, we consider four factors:
(1) whether appellant has filed a timely 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.
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1 Appellant did not file a response to counsel’s petition.
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Id.Appellant filed both a timely motion for reconsideration of his sentence
and a timely nunc pro tunc notice of appeal. In his post-sentence motion,
Appellant alleged that his sentence was manifestly excessive. He also raised
this issue in his concise statement of errors complained of on appeal.
Therefore, Appellant properly preserved this issue and we now proceed to
determine whether Appellant has raised a substantial question. Id.Appellant’s brief does not contain a statement of reasons relied upon for
his challenge to the discretionary aspects of his sentence as required by
Pa.R.A.P. 2119(f). However, we do not consider counsel’s failure to submit a
Rule 2119(f) statement as precluding review of whether Appellant’s issue is
frivolous. See Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super.
2015) (declining to find counsel’s failure to submit a Rule 2119(f) statement
precluded review in the Anders context).
“[A]n appeal is permitted only after this Court determines that there is
a substantial question that the sentence was not appropriate under the
sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa.Super. 2013) (en banc). The determination of what constitutes a
substantial question must be evaluated on a case-by-case basis.
Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005). A
substantial question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1) inconsistent
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with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process. Id.In the Anders brief, counsel offers no specific point of arguable merit
as to the excessive nature of Appellant’s sentence. However, our examination
of the record uncovered that in addition to a bald allegation of excessiveness,
Appellant preserved the claim that the sentencing court erred when it imposed
his sentence consecutively with a separate case in his post-sentence motion.2
Generally, a bald excessiveness claim does not raise a substantial
question. See Commonwealth v. Dodge, 77 A.3d 1263 (Pa.Super. 2013)
(collecting and discussing nuances of excessiveness sentencing challenges).
This Court has stated,
[u]nder 42 Pa.C.S. § 9721, the [trial] court has discretion to
impose sentences consecutively or concurrently and, ordinarily, a
challenge to this exercise of discretion does not raise a substantial
question. The imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is
unduly harsh, considering the nature of the crimes and the length
of imprisonment.
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa.Super. 2010)
(citations omitted).
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2 Appellant also challenged the court’s reliance on a PSI that contained a
factual error. However, in its order denying the post-sentence motion, the
sentencing court stated that it was aware of the typographical error at the
time that it fashioned Appellant’s sentence. Hence, we see no meritorious
claim regarding that issue.
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Here, Appellant was carrying a loaded firearm and illegal drugs, while
serving parole for a drug offense. Appellant conceded that “I know this is a
serious offense. And my record is ridiculous.”3 N.T. Sentencing Hearing,
12/7/18, at 17. Nevertheless, after reviewing the PSI, the trial court imposed
a standard-range sentence, explaining that:
I have also considered the information in the [PSI] report as well
as the evidence and circumstances surrounding this offense. And
after considering all of these factors, I find that a lesser sentence
would depreciate the seriousness of your crime. I therefore find
that a sentence of total confinement is proper.
Id. at 18. Therefore, the decision to sentence Appellant consecutively with
the case he was serving as a result of violating his parole does not appear to
be unduly harsh in light of the criminal conduct at issue. See
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014) (“We are
mindful that the key to resolving the preliminary substantial question inquiry
is whether the decision to sentence consecutively raises the aggregate
sentence to, what appears upon its face to be, an excessive level in light of
the criminal conduct at issue in the case.”). Accordingly, we agree with
counsel that Appellant has failed to raise a substantial question and that this
issue lacks merit.
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3 Appellant had a lengthy criminal history that included twenty-three adult
arrests, ten convictions, and three parole violations. See N.T. Sentencing
Hearing, 12/7/18, at 17.
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However, during our “full examination of the proceedings” we have
uncovered an issue of arguable merit. Commonwealth v. Flowers, 113
A.3d 1246, 1248 (Pa.Super. 2015). Appellant filed an omnibus pretrial motion
challenging the warrantless search of his vehicle on the grounds that no
exigent circumstances existed for the search. See Omnibus Pretrial Motion,
7/16/18, at unnumbered 3. Therefore, the search violated the Pennsylvania
Constitution. Id. After a hearing, the trial court denied the suppression
motion, finding that Officer Erickson had probable cause for the warrantless
search of the vehicle due to his discovery of a drug pill bottle in plain view.
See Findings of Fact and Conclusions of Law, 9/6/18, at 6. However, the trial
court made no finding regarding whether exigent circumstances existed to
justify the search.
During the pendency of this appeal, our Supreme Court overruled
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). See Commonwealth v.
Alexander, 243 A.3d 177 (Pa. 2020). In Gary, a plurality of our Supreme
Court held that police may conduct a warrantless search of a stopped vehicle
if they have probable cause to do so, regardless of any exigency beyond the
vehicle’s inherent mobility. Gary, supra at 104. In overruling Gary, our
Supreme Court concluded that Article I, Section 8 of the Pennsylvania
Constitution “affords greater protection to our citizens than the Fourth
Amendment,” re-affirming pre-Gary decisions that required police to have
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both probable cause and exigent circumstances before conducting a
warrantless search of an automobile. Alexander, supra at 180-81, 208-09.
Since the decision in Alexander announced a new criminal rule, it
applies to all criminal cases still pending on direct review in which the issue
has been preserved at “all stages of adjudication up to and including direct
appeal.” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001). While
Appellant did not explicitly challenge the Gary decision, he did allege that the
Commonwealth needed to show exigent circumstances existed in his omnibus
pre-trial motion and its failure to do so violated the Pennsylvania Constitution.
See Defendant’s Omnibus Pre-Trial Motion for Relief, 7/16/18, at unnumbered
3. Therefore, Alexander’s holding may apply to Appellant.4
Since we have identified a non-frivilous issue that has not been
discussed by appellate counsel, we deny counsel’s petition to withdraw and
direct counsel to file a new brief within thirty days, addressing the change in
the law and its potential impact on Appellant’s appeal. A comprehensive brief
should also discuss the impact of Appellant’s guilty plea on the application of
Alexander’s holding.
Counsel’s petition to withdraw is denied. Jurisdiction retained.
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4 We make this statement mindful of the fact that Appellant later pled guilty
and it is well-established that “upon entry of a guilty plea, a defendant waives
all claims and defenses other than those sounding in the jurisdiction of the
court, the validity of the plea, and what has been termed the ‘legality’ of the
sentence imposed.” Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa.
2014).
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