Com. v. Lechlinski, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
JOSEPH SCOTT LECHLINSKI
Appellant No. 646 MDA 2017
Appeal from the Judgment of Sentence March 20, 2017
In the Court of Common Pleas of Adams County
Criminal Division at No: CP-01-CR-0001167-2016
BEFORE: STABILE, MOULTON, and STRASSBURGER*, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 26, 2017
Appellant, Joseph Scott Lechlinski, appeals from the March 20, 2017
judgment of sentence entered in the Court of Common Pleas of Adams County
(“trial court”) following his open guilty pleas to fleeing or attempting to elude
a police officer, and driving under the influence of alcohol.1 Counsel for
Appellant has filed a brief in accordance with Anders v. California, 368 U.S.
738 (1969) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
concurrently with an application to withdraw as counsel. Following review, we
grant counsel’s application for leave to withdraw and affirm the judgment of
sentence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3733(a) and 3802(a)(1), respectively.
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The trial court summarized the factual and procedural history of the
matter as follows.
On August 14, 2016 at approximately 5:43 P.M., Officer
Brian Wheeler of the McSherrystown Borough Police Department
was patrolling the 500 block of North Street. Officer Wheeler
observed Appellant leave his residence, get into a 2000 black
Saturn bearing Pennsylvania registration JZJ4229, and drive east
on North Street. Appellant had outstanding warrants, so Officer
Wheeler attempted to perform a vehicle stop in the alley near
North Street between North 5th Street and North 6th Street.
Officer Wheeler activated his emergency lights, and pursued
Appellant. Appellant drove recklessly and carelessly at a high rate
of speed nearly striking several pedestrians and occupied vehicles.
Two officers from Conewago Township Police Department assisted
Officer Wheeler with pursuing Appellant. Appellant fled through
multiple streets throughout McSherrystown Borough and
Conewago Township, failing to stop at stop signs, use turn signals,
enter intersections safely, and maintain a single lane of travel.
Appellant also drove his vehicle through the property of a private
citizen in the 600 block of South Street. When police were finally
able to stop appellant, Appellant resisted arrest. Officer Wheeler
suspected that Appellant was intoxicated as Appellant showed
signs of general impairment, including having an odor of alcohol
emanating from his person. Officer Wheeler placed Appellant
under arrest on suspicion of driving under the influence. Officer
Wheeler transported Appellant to Hanover Hospital where he read
the DL-26 Form to Appellant. Appellant stated he understood but
refused to sign the DL-26 Form.
On December 15, 2016, Appellant entered open guilty pleas
to count 1, fleeing or attempting to elude a police officer, as a
felony of the third degree, and count 11, driving under the
influence of alcohol, as an ungraded misdemeanor. On March 20,
2017, Appellant was sentenced as follows: on count 1, Appellant
was sentenced to serve no less than eleven (11) and one half
(1/2) months nor more than twenty-three (23) months twenty-
nine (29) days partial confinement at the Adams County Adult
Correctional Complex followed by three years of probation to run
consecutively to any other sentence Appellant may be serving. On
count 11, Appellant was sentenced to serve no less than five (5)
days nor more than six (6) months partial confinement at the
Adams County Adult Correctional Complex running concurrently
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with the sentence on count 1 but consecutively to any other
sentences Appellant may be serving. On March 21, 2016,
Appellant filed a post-sentence motion requesting [the trial court]
to amend the March 21, 2017 sentencing order to allow for
Appellant to serve a sentence of sixty (60) months in the
intermediate punishment program with twelve (12) months
restrictive on count 1 and a sentence of six (6) months in the
intermediate punishment program with five (5) days restrictive on
count 11. On March 23, 2017, [the trial court] denied Appellant’s
post-sentence motion in its entirety. Appellant field his notice of
appeal and concise statement of errors complained of on appeal
on April 18, 2017[,] and May 2, 2017[,] respectively.
Trial Court Opinion, 5/3/17, at 1-3 (footnotes and some capitalization
omitted). The trial court issued a Pa.R.A.P. 1925(a) opinion on May 3, 2017.
Appellant’s counsel filed, in this Court, an application to withdraw as counsel
and an Anders brief on July 18, 2017, wherein counsel raises one issue for
our review.
I. Whether the [trial court] abused its discretion in sentencing
[Appellant] to no less than eleven and one half months to no more
than twenty three months twenty nine days after hearing mitigating
arguments.
Appellant’s Brief at 6.
Prior to addressing the merits of the underlying issues, this Court must
first address counsel’s application to withdraw. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). In order for court-
appointed counsel to withdraw, 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) file a brief
referring to anything that arguably might support the appeal but
which does not resemble a “no-merit” letter or amicus curiae brief;
and (3) furnish a copy of the brief to the defendant and advise the
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defendant of his or her right to retain new counsel or raise any
additional points that he or she deems worthy of the court’s
attention.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).
Upon review of counsel’s Anders brief, we conclude counsel has
satisfied the procedural requirements set forth in Anders. In the brief,
counsel explains his conclusion that the sentencing issue sought to be raised
by Appellant is frivolous. Further, Counsel sent Appellant a letter, attached to
a copy of his Anders brief, advising Appellant of his right to retain new counsel
or act on his own behalf.
Because we find that counsel has complied with the procedural
requirements of Anders, this Court must address whether counsel’s satisfied
the following substantive requirements:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record 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.
Santiago, 978 A.2d at 361.
In the Anders brief, counsel has included a statement of the case which
includes the procedural history of the case along with citations to the record.
Anders Brief at 7-8. Thus, counsel has complied with the first requirement.
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The second requirement is to reference anything in the record that
counsel believes arguably supports the appeal. See Santiago, 978 A.2d at
361. Here, counsel raises one issue: “[w]hether the trial court abused its
discretion in sentencing [Appellant] to no less than eleven and one half months
to no more than twenty three months twenty nine days consecutive to his
revocation matter in York County.” Anders Brief at 12. Counsel, therefore,
has satisfied the second Anders requirement.
The final substantive requirements of Anders are for counsel to state
his conclusion that the appeal is frivolous and provide his reasons for
concluding that the appeal is frivolous. Santiago, 978 A.2d at 361. Counsel
complied with these requirements and satisfied the final prongs of the Anders
test. Anders Brief at 12-14.
As we find counsel has satisfied the requirements for a petition to
withdraw, we must address the substantive issues raised by Appellant.
Appellant’s underlying claim is a challenge to the discretionary aspects of
sentencing. Anders Brief at 12. Prior to addressing the merits of a challenge
to the discretionary aspects of sentencing, we must first
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).
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Commonwealth v. Grays, 167 A.3d 793, 815-16 (Pa. Super. 2017) (quoting
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted)) (alteration in original). Although Appellant filed a timely notice of
appeal, and his brief contains a Rule 2119(f) statement, he failed to preserve
his sentencing issue in his post-sentence motion. We long have held that
objections to the discretionary aspects of sentencing are waived, if they are
not raised at sentencing or in a post-sentence motion. See Commonwealth
v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (“Issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing
proceedings.”), appeal denied, 75 A.3d 1281 (Pa. 2013). Accordingly,
Appellant’s claim is waived. Even if we were to address this issue for review,
we still would have to determine whether Appellant has raised a substantial
question.
An appellant must raise “a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code” in order to
challenge the discretionary aspects of sentencing. Commonwealth v.
Swope, 123 A.3d 333, 338 (Pa. Super. 2015). In the matter sub judice,
Appellant claims that the trial court did not consider sufficiently the mitigating
circumstances in this case.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)). Further,
we have “held on numerous occasions that a claim of inadequate consideration
of mitigating factors does not raise a substantial question for our review.” Id.
at 903 (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.
2010)). Thus, Appellant’s claim does not raise a substantial question for our
review; however, we will still address the merits of his claim.
This Court’s standard of review for a challenge to the discretionary
aspects of sentencing is well established.
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 partiality, prejudice, bias, or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Solomon, 151 A.3d 672, 677 (Pa. Super. 2016) (quoting
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (additional
citations omitted)). “Where the sentencing court had the benefit of a
presentence investigation (‘PSI’), we can assume the sentencing court ‘was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.’”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). As counsel
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noted in his Anders brief, the trial court sentenced Appellant to a standard
range sentence, had the benefit of a PSI, and explained his decision on the
record. Thus, Appellant’s claim fails.
After determining that counsel has complied with the technical
requirements of Anders and Santiago, this Court must “conduct an
independent review of the record to discern if there are any additional non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015). Upon review of the record, we do not
discern any non-frivolous issues that Appellant could have raised. Thus, we
grant counsel’s application to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date 12/26/2017
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