Com. v. Davis, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES A. DAVIS, :
:
Appellant : No. 1305 EDA 2015
Appeal from the Judgment of Sentence entered on April 2, 2015
in the Court of Common Pleas of Wayne County,
Criminal Division, No. CP-64-CR-0000430-2014
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 07, 2015
James A. Davis (“Davis”) appeals from the judgment of sentence
imposed following his guilty plea to receiving stolen property. See 18
Pa.C.S.A. § 3925(a). Additionally, Richard B. Henry, Esquire (“Henry”),
Davis’s 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 Henry’s Petition to Withdraw and affirm Davis’s judgment
of sentence.
On January 29, 2015, Davis entered an open guilty plea to receiving
stolen property. Davis admitted that he intentionally received, retained or
disposed of a laptop computer, a Sony PlayStation 3, a digital camera, and
jewelry. On April 2, 2015, the trial court sentenced Davis to four months to
twenty-three and one-half months in prison, with credit for time served.
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Davis filed a timely Notice of Appeal. The trial court ordered Davis to
file a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
In response to the Order, Henry filed a Notice of intent to file an Anders
brief, and the trial court issued an Opinion.
On appeal, Henry has filed an Anders Brief raising the following
question: “Did the Trial Court err in sentencing [Davis] within the standard
sentencing guidelines?” Anders Brief at 1. Henry filed a separate Petition
to Withdraw with this Court on July 31, 2015. Davis filed neither a pro se
brief, nor retained alternate counsel for this appeal.
We must first determine whether Henry has complied with the dictates
of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)
(stating that “[w]hen faced with a purported Anders brief, this Court may
not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”) (citation omitted). Pursuant to
Anders, when an attorney believes that an appeal is frivolous and wishes to
withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the appeal,
but which does not resemble a no-merit letter; and (3) furnish a
copy of the brief to the defendant and advise him of his right to
retain new counsel, proceed pro se, or raise any additional points
he deems worthy of this Court’s attention.
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Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citation 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). “Once
counsel has satisfied the [Anders] requirements, it is then this Court’s duty
to conduct its own review of the trial court’s proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006).
Here, Henry has complied with each of the requirements of Anders
and Santiago. Henry indicates that he has conscientiously examined the
record, case law, and statutes, and determined that an appeal would be
frivolous. Further, Henry’s brief meets the standards set forth in Santiago
by providing a factual summation of Davis’s case, with support for his
conclusion that the appeal is frivolous. Henry indicates that he is thoroughly
familiar with the case, having represented Davis from trial to sentencing.
Finally, Henry provided a copy of his letter to Davis, informing him of his
intention to withdraw as counsel and advising him of his right to retain new
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counsel, proceed pro se, and file additional claims. Because Henry has
complied with the procedural requirements for withdrawing from
representation, we will independently review the record to determine
whether Davis’s appeal is, in fact, wholly frivolous.
Davis challenges the discretionary aspects of his sentence.1
“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 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, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, Davis filed a timely Notice of Appeal. However, he did not raise
his sentencing claim in a post-sentence motion or at sentencing. See
Commonwealth v. Reaves, 923 A.2d 1119, 1125 (Pa. 2007) (stating that
“failure to file a motion for reconsideration after failing to object at
sentencing [] operates to waive issues relating to the discretionary aspects
1
Davis entered an open guilty plea, so his plea did not preclude a challenge
to the discretionary aspects of his sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).
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of sentencing”); see also Commonwealth v. Williams, 787 A.2d 1085,
1088 (Pa. Super. 2001) (stating that claims challenging discretionary
aspects of sentencing are waived when the sentencing judge is not afforded
the opportunity to reconsider or modify the sentence through a post-
sentence motion or an objection at sentencing). Further, while a Rule
2119(f) Statement has been included in the brief, Davis fails to raise a
substantial question. See Anders Brief at 7 (wherein “Davis argues that the
trial court abused its discretion by imposing the sentence given in this
matter”); see also Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.
Super. 2003) (stating that “to establish a substantial question, the appellant
must show actions by the sentencing court inconsistent with the
Pennsylvania Sentencing Code or contrary to the fundamental norms
underlying the sentencing process.”). Regardless of these defects, Anders
requires that we examine the merits of Davis’s claims to determine whether
his appeal is, in fact, “wholly frivolous” in order to rule upon counsel’s
request to withdraw. See Commonwealth v. Wilson, 578 A.2d 523, 525
(Pa. Super. 1990) (stating that discretionary aspects of sentencing raised in
an Anders brief must be addressed on appeal, despite procedural
violations).
Our standard of review for challenges to discretionary aspects of
sentencing is well settled:
[S]entencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
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abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias
or ill will. It is more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006)
(citation omitted).
Davis asserts that the trial court abused its discretion by imposing the
sentence. Anders Brief at 9.
At sentencing, the trial court considered a letter from the victim. N.T.,
4/2/15, at 5. Additionally, the trial court had the benefit of a pre-sentence
investigation report.2 See id. at 2-8; see also Commonwealth v.
Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (stating that “where the
trial court is informed by a pre-sentence report, it is presumed that the court
is aware of all appropriate sentencing factors and considerations, and that
where the court has been so informed, its discretion should not be
disturbed”) (quotation marks and citations omitted). The record indicated
that Davis had been arrested twice for DUI since October 2014, had three
prior convictions, and had three outstanding bench warrants. N.T., 4/2/15,
at 7-8. Further, the trial court considered the sentencing guidelines. Id. at
5-6; see also Anders Brief at 10. (stating that Davis carried a prior record
score of 1 and pled guilty to receiving stolen property, which has an offense
gravity score of 3).
2
Davis did not show up for the pre-sentence investigation interview, and,
therefore, the report reflected what was of record. N.T., 4/2/15, at 5-8.
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In imposing the sentence, the trial court considered the pre-sentence
investigation report, the sentencing guidelines, the recommendation to the
court, and the victim’s statements. N.T., 4/2/15, at 2-8; see also
Downing, 990 A.2d at 794. Further, Davis’s sentence of four to twenty-
three and one-half months in prison was well within the standard range.
See 18 Pa.C.S.A. § 1104(1);3 see also Anders Brief at 11 (stating that the
sentencing judge showed no prejudice or ill-will, but rather partiality in favor
of Davis, by granting him a sentence of two months less than recommended
by the prosecution and requested by him). Accordingly, the trial court did
not abuse its discretion in imposing the sentence.
Additionally, our independent review of the record indicates that there
are no other claims that arguably support the appeal. See Anders, 386
U.S. at 744-45. Based upon the foregoing, Davis’s appeal is wholly
frivolous, and Henry is entitled to withdraw as counsel.
Petition to Withdraw as counsel granted. Judgment of sentence
affirmed.
Donohue, J., joins the memorandum.
Mundy, J., concurs in the result.
3
Receiving stolen property is punishable by a maximum sentence of five
years imprisonment. 18 Pa.C.S.A. § 1104(1).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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