Com. v. Dunbar, G. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GREGORY MARK DUNBAR, :
:
Appellant : No. 920 WDA 2014
Appeal from the Judgment of Sentence Entered May 23, 2014,
In the Court of Common Pleas of Erie County,
Criminal Division, at No. CP-25-CR-0003143-2013.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2015
Appellant, Gregory Mark Dunbar, appeals from the judgment of
sentence entered following his convictions of robbery, attempt to commit
burglary, and conspiracy to commit robbery. Appellate counsel has filed a
petition to withdraw her representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), which govern a withdrawal from representation on
direct appeal. We grant counsel’s petition to withdraw and affirm the
judgment of sentence.
The procedural history of this case is summarized as follows. In
relation to an incident in which Appellant and two other males attempted to
forcibly enter a residence occupied by three people, one of whom was an
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infant girl, Appellant was charged with one count each of robbery, attempted
burglary, conspiracy to commit robbery, possession of a small amount
marijuana, possession of drug paraphernalia, and three counts of recklessly
endangering another person. On March 11, 2014, a jury convicted Appellant
of the crimes of robbery, attempt to commit burglary, and conspiracy to
commit robbery. On May 23, 2014, the trial court sentenced Appellant to
consecutive terms of incarceration of sixty to 120 months for the conviction
of robbery, twenty-one to forty-two months for the conviction of attempted
burglary, and forty to eighty months for the conviction of conspiracy to
commit robbery. Appellant’s aggregate sentence totaled 121 to 242 months
of incarceration, which was to be served consecutively to a sentence
previously imposed in Crawford County. Appellant was given credit for time
served. That same day, Appellant filed a post-sentence motion seeking
modification of his sentence, which the trial court denied on May 27, 2014.
This timely appeal followed.
In lieu of filing a Pa.R.A.P. 1925(b) statement, Appellant’s counsel filed
a statement of intent to file an Anders/McClendon brief, pursuant to
Pa.R.A.P. 1925(c)(4). On June 16, 2014, the trial court filed a letter
indicating it was not preparing a Pa.R.A.P. 1925(a) opinion in light of the
notice of intent to withdraw filed by counsel under Pa.R.A.P. 1925(c)(4).
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As noted, counsel has filed a petition to withdraw from representation.
Before we address the questions raised on appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal.
The procedural mandates are that counsel must
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within her petition
to withdraw, counsel averred that she conducted a conscientious
examination of the record. Following that review, counsel concluded that
the present appeal is wholly frivolous. Counsel sent to Appellant a copy of
the Anders brief and petition to withdraw, as well as a letter, a copy of
which is attached to the petition to withdraw. In the letter, counsel advised
Appellant that he could represent himself or that he could retain private
counsel to represent him.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that
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in 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 statutes
on point that have led to the conclusion that the appeal is
frivolous.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. It sets forth the history of
this case and outlines pertinent case authority. We thus conclude that the
procedural and briefing requirements for withdrawal have been met.
Counsel presents the following issue for our review:
Whether the Appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Pennsylvania Sentencing Code?
Appellant’s Brief at 3.
Appellant argues that the trial court abused its discretion in imposing
the sentence in this case. Specifically, Appellant contends that the sentence
imposed was harsh and excessive in light of the factors which should have
been considered by the sentencing court.
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be
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considered to be a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Whether a particular issue constitutes a substantial question about the
appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. Commonwealth v. Malovich,
903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the
reasons the sentencing court’s actions violated the sentencing code. Id. “A
substantial question will be found where the defendant advances a colorable
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argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009) (citations omitted).
Herein, the first three requirements of the four-part test are met;
Appellant brought an appropriate appeal, raised the challenge in his post-
sentence motion, and included in his appellate brief the necessary separate
concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether
Appellant has raised a substantial question requiring us to review the
discretionary aspects of the sentence imposed by the trial court.
Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that
the sentencing court failed to properly consider the factors set forth in 42
Pa.C.S. § 9721(b). Appellant’s Brief at 4-6.1
Appellant claims that the trial court simply relied upon the gravity of
the offense and failed to consider other circumstances in imposing a
sentence upon Appellant in the standard range of the sentencing guidelines.
Considering this claim to be an allegation that the sentencing court failed to
consider factors set forth under 42 Pa.C.S. § 9721(b), we conclude that, in
1
We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the defendant.
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this instance, Appellant has raised a substantial question. See
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)
(concluding that the appellant raised a substantial question where it was
alleged that the trial court failed to properly consider the factors set forth in
42 Pa.C.S. § 9721(b)). Accordingly, because Appellant has stated a
substantial question, we will address this claim on appeal.
It is undisputed that 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. Fullin, 892 A.2d at 847. In
this context, an abuse of discretion is not shown merely by an error in
judgment. Id. 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 partiality, prejudice, bias, or ill will, or arrived at a
manifestly unreasonable decision. Id. Appellate review with respect to a
sentence within the guidelines is whether the sentence is “clearly
unreasonable.” 42 Pa.C.S. § 9781(c)(2).
Indeed, the sentencing judge has broad discretion in determining the
proper penalty, and this Court accords the sentencing court great deference,
as it is the sentencing court that is in the best position to view the
defendant’s character, displays of remorse, defiance, or indifference and the
overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d
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957, 961 (Pa. 2007) (quotations and citations omitted). 2 As previously
stated, when imposing a sentence, the sentencing court must consider “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. § 9721(b). As we have stated, “a court is
required to consider the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa. Super. 2002). “In particular, the court should refer to the defendant’s
prior criminal record, his age, personal characteristics and his potential for
rehabilitation.” Id.2
The Walls Court instructed the following:
In making this “unreasonableness” inquiry, the General
Assembly has set forth four factors that an appellate court is to
consider:
(d) Review of the record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature of the circumstances of the offense
and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any pre-sentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Id. at 963.
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Appellant asserts that, in fashioning his sentence, the sentencing court
failed to properly consider Appellant’s relatively minor role in the commission
of the robbery, the fact that he was not yielding the weapon during the
crime, the fact that Appellant apologized to the victim and her family, and
that Appellant is actively supported by his family. Appellant’s Brief at 7.
Our review of the record reflects that, after the sentencing court
reviewed a presentence report, heard testimony from a witness offered by
Appellant, accepted Appellant’s allocution that included an apology, received
a victim impact statement, and accepted letters about Appellant’s character,
it made the following statement:
All right. Thank you. I’ve considered a number of things
here, the presentence report in its entirety, and I’m going to
make it a part of the record. I also received some letters in
support of [Appellant] including a list of individuals who believe
that he’s, in their estimation, a great man who is loved and
missed. I’m going to make all those a part of the record and
attach them to the presentence investigation report.
I’ve also considered the Pennsylvania Sentencing Code and
its factors, the guidelines, and the various statements made here
to me today. I’ve also considered of course the trial testimony
that – in this case, and I’m familiar with the facts of the case as
outlined at that time.
[Appellant], you’re not wasting my time. I mean, this is
what I do. And as I looked at all this, it’s a little bit puzzling,
because on the one hand you appear to have a lot of people that
love and support you, and yet you have an extensive criminal
record that indicates to me this [sic] in spite of this love and
support, that has not been an influence on you, at least to the
point where it’s deterred your criminal behavior.
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As to these crimes, these were extremely serious, and
those victims were absolutely terrorized. It was a young child.
And, again, nobody put the gun in your hand, but you were
there. You knew better given your background.
And to say you were in the wrong place at the wrong time,
that rings hollow, because a man with your background should
have enough street smarts to know when you’re putting yourself
in harm’s way. You were there because you wanted to be there.
That’s the bottom line.
I still think, as much of a mess as you’ve made out of your
life, there is still some rehabilitative potential, but you’ve earned
yourself a considerable jail sentence for what you did. And
you’re going to have to pay that price before you can return to
your family.
Notes of Testimony, Sentencing Hearing at 12-13.
Upon review of the record, we conclude that the sentencing court
presented adequate reasons for imposing the sentence within the standard
range of the sentencing guidelines upon Appellant. There is no indication
that the trial court ignored any relevant factors in fashioning the sentence.
Accordingly, it is our determination that there was no abuse of discretion on
the part of the sentencing court in fashioning Appellant’s sentence. Thus,
we conclude this claim lacks merit.
We also have independently reviewed the record in order to determine
whether there are any non-frivolous issues present in this case.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having
concluded that there are no meritorious issues, we grant Appellant’s counsel
permission to withdraw, and affirm the judgment of sentence.
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Petition of counsel to withdraw is granted. Judgment of sentence
affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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