Com. v. Kesselring, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RONALD ANDREW KESSELRING, :
:
Appellant : No. 1102 MDA 2017
Appeal from the Judgment of Sentence June 13, 2017
in the Court of Common Pleas of Adams County,
Criminal Division at No(s): CP-01-CR-000196-2011
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2018
Ronald Andrew Kesselring (“Kesselring”) appeals from the judgment of
sentence imposed following the revocation of his probation. Additionally, Sean
A. Mott, Esquire (“Attorney Mott”), Kesselring’s appellate counsel, has filed a
Petition to Withdraw as counsel and an accompanying brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967). We grant Attorney Mott’s
Petition to Withdraw, and affirm Kesselring’s judgment of sentence.
The trial court set forth the relevant underlying facts as follows:
[Kesselring’s] revocation sentence involves [his] conviction
following a jury trial of two counts of persons not to possess, use,
etc.[,] firearms in violation of section 6105 of the Pennsylvania
Crimes Code as a felony of the second degree. The Honorable
Michael A. George, President Judge of Adams County, initially
sentenced [Kesselring] in this matter on October 11, 2011. On
count one, [Kesselring] received a sentence of no less than eleven
(11) months and twenty-nine (29) days nor more than twenty-
three (23) months and twenty-nine (29) days in partial
confinement at the Adams County Prison. On count two,
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[Kesselring] received a sentence of five (5) years of intermediate
punishment with eighteen (18) months [of] restrictive
intermediate punishment, with the sentences running concurrent
with each other. It should be noted the standard range of the
Pennsylvania Sentencing Guidelines for both of the
above[-]referenced charges w[as] forty-eight (48) to sixty (60)
months.
On May 12, 2015, the Adams County Department of Probation
Services filed a Motion for Revocation of [Kesselring’s] sentence
of intermediate punishment on count two, based on a new criminal
charge (simple assault)[,] which was filed against [Kesselring] on
May 7, 2015. [Kesselring] acknowledged the revocation violation
on October 2, 2015, following his criminal conviction for the
underlying simple assault charge. [Kesselring] was sentenced by
the Honorable Thomas R. Campbell, Judge of Adams County, to
five (5) years of probation, effective May 6, 2015.
On August 22, 2016, the Adams County Department of Probation
Services filed a second Motion for Revocation of [Kesselring’s]
sentence resulting from criminal charges filed against [Kesselring]
in the case docketed at CP-01-CR-1051-2016. [Kesselring] was
convicted on April 4, 2017[,] of all three charges. This conviction
formed the basis for [Kesselring’s] second revocation
acknowledgement in the [instant] matter. On June 13, 2017,
[Kesselring] was sentenced on this second revocation
acknowledgement to a sentence of total confinement of no less
than forty-eight (48) months nor more than ninety-six months
(96) in a state correctional institution, with eighteen (18) months
of custody credit.
On June 23, 2017, appellate counsel filed [Kesselring’s] Motion for
Extension to File Post-Sentence Motion and Unseal Pre-Sentence
Investigation, which th[e trial c]ourt granted on June 26, 2017.
[Kesselring] filed his [P]ost-[S]entence [M]otion for modification
of sentence on July 13, 2017, which th[e trial c]ourt denied by
Order of Court dated August 4, 2017. On July 13, 2017,
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[Kesselring] filed his Notice of Appeal.[1] By Order of Court dated
July 19, 2017, this Court directed [Kesselring] to file a Concise
Statement of Matters Complained of on Appeal. [Kesselring]
timely filed his Concise Statement on August 3, 2017.
Trial Court Opinion, 8/29/17, at 1-3 (footnotes omitted, footnote added).
Attorney Mott initially filed an Anders brief, but failed to file a petition
to withdraw with this Court. Accordingly, we remanded with instructions to
Attorney Mott to either file an advocate’s brief or fulfill all of the requirements
of Anders. See Commonwealth v. Kesselring, 1102 MDA 2017 (Pa. Super.
filed March 15, 2018) (judgment order). On March 16, 2018, Attorney Mott
filed a Petition to Withdraw with this Court.
Accordingly, we must determine whether Attorney Mott has complied
with the dictates of Anders and its progeny in petitioning to withdraw from
representation. See Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2
(Pa. Super. 2009) (stating that “[w]hen presented with an Anders brief, this
Court may not review the merits of the underlying issues without first passing
on the request to withdraw.”). Pursuant to Anders, when counsel believes
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1 We note that Kesselring filed a timely Notice of Appeal, despite the fact he
had also filed a Post-Sentence Motion. See Pa.R.Crim.P. 708(E) (providing
that the filing of a motion to modify a sentence imposed following the
revocation of probation will not toll the 30-day appeal period); see generally
Commonwealth v. Ratushny, 17 A.3d 1269, 1271 n.4 (Pa. Super. 2011)
(noting that where a trial court denies appellant’s post-sentence motion while
his appeal is pending, the notice of appeal will be treated as being filed after
the entry of the order denying the post-sentence motion).
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that an appeal is frivolous and wishes to withdraw from representation, he
must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Mott has complied with the requirements set forth in
Anders by indicating that he thoroughly reviewed the record and determined
that an appeal would be frivolous. Further, the record contains a copy of the
letter that Attorney Mott sent to Kesselring, informing him of Attorney Mott’s
intention to withdraw and advising him of his rights to proceed pro se, retain
counsel, and file additional claims. Finally, Attorney Mott’s Anders Brief
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meets the standards set forth in Santiago. Because Attorney Mott has
complied with the procedural requirements for withdrawing from
representation, we will independently review the record to determine whether
Kesselring’s appeal is, in fact, wholly frivolous.
In the Anders Brief, Attorney Mott raises the following question for our
review: “Did the sentencing court manifestly abuse its discretion when it
sentenced [Kesselring] to serve a sentence of no less than 48 months nor
more than 96 months in a State Correctional Institution in the above-
captioned revocation matter?” Anders Brief at 5. Kesselring neither filed a
pro se brief, nor retained alternate counsel for this appeal.
Kesselring challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether appellant has filled 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).
***
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
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argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Kesselring filed a timely Notice of Appeal, preserved his claim in
his Post-Sentence Motion,2 and included in his appellate brief a separate Rule
2119(f) Statement. Further, Kesselring’s claim that his sentence was
excessive, in light of the fact that he was not a danger to society and the
underlying violations were without merit, raises a substantial question. See
Commonwealth v. Simmons, 56 A.3d 1280, 1286 (Pa. Super. 2012)
(stating that a claim arguing that the probation revocation sentence is
excessive and that it constitutes too severe a punishment raises a substantial
question); see also Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.
Super. 2010) (noting that a claim that the trial court failed to consider the
rehabilitative needs of the defendant and protection of society raises a
substantial question). Thus, we will review Kesselring’s sentencing claims.
Our standard of review is well settled:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record
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2 While the trial court denied the Motion after the Notice of Appeal had been
filed, we conclude that Kesselring properly preserved his sentencing claims in
his Post-Sentence Motion.
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discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation
omitted).
The reason for this broad discretion and deferential standard
of appellate review is that the sentencing court is in the best
position to measure various factors and determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it. Simply stated, the sentencing
court sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
The sentencing court’s institutional advantage is, perhaps,
more pronounced in fashioning a sentence following the revocation
of probation, which is qualitatively different than an initial
sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
appears before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
when an initial sentence is imposed, the Sentencing Guidelines do
not apply, and the revocation court is not cabined by Section
9721(b)’s requirement that “the sentence imposed should call for
confinement that is consistent with 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.A. § 9721.
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and
quotation marks omitted).
Upon revocation of probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original sentence,
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including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(1) the
defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned; or (3) such a sentence is essential to vindicate the authority
of the court.” Id. § 9771(c).
Moreover, “[i]n every case in which the court … resentences an offender
following revocation of probation, … the court shall make as part of the record,
and disclose in open court at the time of sentencing, a statement of the reason
or reasons for the sentence imposed.” Id. § 9721(b); see also Pa.R.Crim.P.
708(D)(2) (providing that “[t]he judge shall state on the record the reasons
for the sentence imposed.”). However, following revocation of probation, a
sentencing court need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statutes in question. See
Pasture, 107 A.3d at 28 (stating that “since the defendant has previously
appeared before the sentencing court, the stated reasons for a revocation
sentence need not be as elaborate as that which is required at initial
sentencing.”).
Kesselring contends that the trial court abused its discretion in imposing
a state sentence of 48-96 months on top of the sentence he received for the
convictions underlying the basis for revocation. Anders Brief at 10.
Kesselring argues that the trial court did not consider his rehabilitative needs,
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his family and business ties to Adams County, the fact that he was a single
parent to his 16-year-old daughter, and that his daughter would be adversely
impacted by his prison term. Id. at 10-11.
The trial court addressed Kesselring’s claims as follows:
[The trial c]ourt reviewed both the current pre-sentence
investigation prepared for CP-01-CR-1051-2016 and the pre-
sentence investigation from 2011. In fashioning [Kesselring’s]
sentence, [the trial c]ourt considered mitigating factors such as
[Kesselring’s] business and the fact that he is the primary
caretaker for his daughter as factor[s] weighing in favor of a local
sentence. [N.T., 6/13/17, at 11.] …
[The trial c]ourt also considered the fact that this is [Kesselring’s]
second revocation in this matter and both revocations were the
result of [Kesselring] committing and being convicted of new
criminal charges. [Id. at 3, 10-11.] [Kesselring’s] actions
demonstrate that he is “not amendable to local supervision.” [Id.
at 11.] [Kesselring] received leniency in the original sentence
imposed at CP-01-CR-196-2011; however, instead of conforming
his conduct, he went on to commit two new offenses while he
remained under supervision for CP-01-CR-196-2011. As such,
[the trial c]ourt was well within its discretion to sentence
[Kesselring] to a state correctional facility.
Trial Court Opinion, 8/29/17, at 4-5 (footnotes omitted).
Additionally, Kesselring’s claim that the evidence did not support the
convictions at CP-01-CR-1051-2016, which triggered the revocation
proceedings, is without merit. Indeed, a jury convicted Kesselring of various
charges, and this Court affirmed his judgment of sentence, specifically
concluding that the evidence was sufficient to support the convictions. See
Commonwealth v. Kesselring, 1205 MDA 2017 (Pa. Super. filed March 21,
2018) (unpublished memorandum). Thus, based upon the foregoing, we
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discern no abuse of the trial court’s discretion in imposing the sentence
following the revocation of Kesselring’s probation. See Commonwealth v.
Malovich, 903 A.2d 1247, 1253-54 (Pa. Super. 2006) (concluding that the
trial court did not abuse its discretion in imposing a state prison term following
the revocation of appellant’s probation where the trial court considered
appellant’s character and underlying case and where the trial court indicated
such a sentence was necessary to vindicate the court’s authority based on
appellant’s failure to comply previous judicial efforts, such as drug court or
rehabilitation).
Further, our independent review discloses no other non-frivolous issues
that Kesselring could raise on appeal. Accordingly, we grant Attorney Mott’s
Petition to Withdraw and affirm Kesselring’s judgment of sentence.
Petition to Withdraw granted; judgment of sentence affirmed.
Judge Murray joins the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/2018
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