Com. v. Claiborne, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALLEN THEODORE CLAIBORNE :
:
Appellant : No. 1318 MDA 2017
Appeal from the Judgment of Sentence May 24, 2017
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003742-2016
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 12, 2018
Allen Theodore Claiborne appeals from the judgment of sentence
imposed May 24, 2017, in the York County Court of Common Pleas. The trial
court sentenced Claiborne to an aggregate term of five to 12 years’
imprisonment following his jury conviction of theft and criminal conspiracy to
commit robbery.1 Contemporaneous with this appeal, Claiborne’s counsel has
filed a petition to withdraw from representation and an Anders brief. See
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981). The sole issue addressed in the
Anders brief is a challenge to the discretionary aspects of Claiborne’s
sentence. For the reasons below, we affirm the judgment of sentence, and
grant counsel’s petition to withdraw.
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1 See 18 Pa.C.S. §§ 903/3701(a)(1)(ii), and 3921(a), respectively.
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The facts underlying Claiborne’s convictions are well-known to the
parties and need not be reiterated herein. In summary, Claiborne, along with
two co-conspiractors, posted ads online claiming to have electronic items for
sale. However, when they met with potential buyers, Claiborne and his
cohorts robbed them at gunpoint. On November 15, 2016, a jury convicted
Claiborne of conspiracy and theft with regard to one of the robberies, acquitted
him of a second robbery, and was unable to reach a verdict with regard to the
third robbery. As noted above, he was sentenced on May 24, 2017, to a term
of five to 12 years’ imprisonment for conspiracy to commit robbery, and a
concurrent term of six to 12 months’ for the charge of theft. On June 2, 2017,
Claiborne filed a timely post-sentence motion seeking reconsideration of his
sentence. On July 17, 2017, the trial court denied Claiborne’s post-sentence
motion following a hearing. Claiborne filed a notice of appeal on August 18,
2017.
Before we may address counsel’s request to withdraw and the
substantive claim raised in the Anders brief, we must first determine if this
appeal was timely filed. “Jurisdiction is vested in the Superior Court upon the
filing of a timely notice of appeal.” Commonwealth v. Liebensperger, 904
A.2d 40, 43 (Pa. Super. 2006) (quotation omitted). When the defendant in a
criminal case files a timely post-sentence motion, “the notice of appeal shall
be filed … within 30 days of the entry of the order deciding the motion[.]”
Pa.R.Crim.P. 720(A)(2)(a).
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Here, Claiborne filed a timely post-sentence motion seeking
reconsideration of his sentence, which the trial court denied by order entered
July 17, 2017. Therefore, it appears that his notice of appeal, filed thirty-two
days later, on August 18, 2017, was untimely. Indeed, we note that on
September 11, 2017, this Court filed an order directing Claiborne to show
cause why the appeal should not be quashed as untimely. See Rule to Show
Cause, 9/11/2017. Counsel for Claiborne filed a response, in which he
conceded the appeal was untimely filed and must be quashed. See Response
to Order to Show Cause, 9/11/1027, at ¶ 5.
Our review of the record, however, reveals that, despite counsel’s
concession, quashal of this appeal is not appropriate. Pursuant to the
Pennsylvania Rules of Appellate Procedure, the date of the entry of an order
is “the day the clerk of the court … mails … copies of the order to the parties[.]”
Pa.R.A.P. 108(a)(1). The only exception in a criminal case is when no post-
sentence motion has been filed, in which case “the date of imposition of
sentence in open court shall be deemed to be the date of entry of the judgment
of sentence.” Pa.R.A.P. 108(d)(2).
Here, the docket indicates that notice of the trial court’s July 17, 2017,
order denying Claiborne’s post-sentence motion was served on the parties on
July 24, 2017. See Docket No. 3742-2016, 7/17/2017 Entry, Order Denying
Post-Sentence Motion. Consequently, Claiborne had until August 23, 2017, to
file a timely notice of appeal, and his appeal filed on August 18, 2017, was
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timely filed.2 Therefore, we proceed to an examination of counsel’s request
to withdraw.
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any of
the substantive issues raised on appeal. Commonwealth v. Bennett, 124
A.3d 327, 330 (Pa. Super. 2015). Our review of the record reveals counsel
has complied with the requirements for withdrawal outlined in Anders, supra,
and its progeny. Notably, counsel completed the following: (1) he filed a
petition for leave to withdraw, in which he states his belief that the appeal is
wholly frivolous; (2) he filed an Anders brief pursuant to the dictates of
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); (3) he
furnished a copy of the Anders brief to Claiborne; and (4) he advised
Claiborne of his right to retain new counsel or proceed pro se.3 See
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2 On August 23, 2017, the trial court directed Claiborne to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Claiborne complied with the court’s directive, and filed a concise statement on
September 14, 2017. This filing was one-day late pursuant to the 21-day
filing period set forth in Rule 1925. However, this Court has held: “[I]f there
has been an untimely filing [of a concise statement], this Court may decide
the appeal on the merits if the trial court had adequate opportunity to prepare
an opinion addressing the issues being raised on appeal.” Commonwealth
v. Burton, 973 A.2d 428, 433 (2009). Here, the trial court prepared a Rule
1925(a) opinion, in which it relied upon the reasoning set forth in its order
denying post-sentence motions. Accordingly, we decline to find Claiborne’s
issue waived on appeal.
3We note that counsel initially did not attach to the petition a letter informing
Claiborne of his rights. Accordingly, by order entered October 31, 2017, this
Court directed counsel to properly notify Claiborne and file a copy of the
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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Moreover, we have received no correspondence from Claiborne
supplementing the Anders brief.
Therefore, we proceed “to make a full examination of the proceedings
and make an independent judgment to decide whether the appeal is in fact
wholly frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.
Super. 2015) (quotations and citation omitted). In so doing, we review not
only the issues identified by appointed counsel in the Anders brief, but
examine all of the proceedings to “make certain that appointed counsel has
not overlooked the existence of potentially non-frivolous issues.” Id. at 1249
(footnote omitted).
The sole issue addressed in the Anders brief is a challenge to the
discretionary aspects of Claiborne’s sentence. A challenge to the discretionary
aspects of a sentence is not absolute, but rather, “must be considered a
petition for permission to appeal.” Commonwealth v. Best, 120 A.3d 329,
348 (Pa. Super. 2015) (quotation omitted). In order to reach the merits of
such a claim, this Court must determine:
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notification with this Court. See Order, 10/31/2017. Although counsel
complied, the letter he sent to Claiborne contained incorrect advice, implying
that Claiborne’s right to represent himself or retain private counsel was
contingent upon this Court permitting counsel to withdraw. Therefore, on
November 17, 2017, this Court ordered counsel to properly inform Claiborne
of his rights, and file a copy of the correct notification with this Court. See
Order, 11/17/2017. Counsel complied with our directive, and filed a proper
notification on November 22, 2017.
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(1) whether the appeal is timely; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(quotation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
In the present case, although Claiborne filed a timely appeal and
preserved his challenge in a post-sentence motion, counsel failed to include a
concise statement of the reasons relied upon for allowance of appeal pursuant
to Pa.R.A.P. 2119(f) in the Anders brief. Nevertheless, because the
Commonwealth did not object to the omission, we may consider the claim on
appeal.4 See Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super.
2006). See also Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184
(Pa. Super. 2016) (declining to waive a discretionary sentencing claim despite
the absence of a Rule 2119(f) statement when counsel has requested to
withdraw and filed an Anders brief). Therefore, we must now determine
whether the Anders brief raises a substantial question justifying our review.
A substantial question exists when an appellant sets forth “a colorable
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
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4 Indeed, the Commonwealth neglected to file a brief.
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1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted).
Here, Claiborne contends the sentence imposed was excessive, and the
trial court failed to consider “the fact that he is only twenty-three years old
and was addicted to controlled substances at the time the crime occurred.”
Anders Brief at 9. Claiborne insists that by reducing his sentence, the court
will allow him to “develop the important social and professional skills needed
to become a contributing member of society,” and he will be less likely to
commit future crimes if he is provided with treatment for his drug addiction
issues. Id.
A claim that the trial court failed to consider mitigating factors does not
present a substantial question for our review. Commonwealth v. Corley,
31 A.3d 293, 297 (Pa. Super. 2011). This is particularly true where, as here,
the trial court had the benefit of a pre-sentence investigation report. See
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Where the sentencing court had the benefit of a presentence
investigation report (“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. Devers, 519 Pa. 88, 101-
02, 546 A.2d 12, 18 (1988). See also Commonwealth v.
Tirado, 870 A.2d 362, 368 (Pa.Super.2005) (stating if sentencing
court has benefit of PSI, law expects court was aware of relevant
information regarding defendant's character and weighed those
considerations along with any mitigating factors). Further, where
a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the
Sentencing Code. See Commonwealth v. Cruz-Centeno, 447
Pa.Super. 98, 668 A.2d 536 (1995), appeal denied, 544 Pa. 653,
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676 A.2d 1195 (1996) (stating combination of PSI and standard
range sentence, absent more, cannot be considered excessive or
unreasonable).
Id.
In the present case, the trial court imposed concurrent, standard range
sentences for Claiborne’s offenses. See N.T., 5/24/2017, at 2, 4. The court
specifically noted that it took into consideration Claiborne’s age, and his use
of controlled substances. See Order, 7/17/2017, at 3. Accordingly, we find
he has failed to raise a substantial question justifying our review.
Despite the fact that counsel incorrectly conceded the appeal should be
quashed, we agree with his assessment that the issue identified in the Anders
brief is frivolous. Moreover, we have conducted “a full examination of the
proceedings” and conclude “the appeal is in fact wholly frivolous.” Flowers,
supra, 113 A.3d at 1248.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2018
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