Com. v. Jones, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM JONES :
:
Appellant : No. 1232 MDA 2017
Appeal from the Judgment of Sentence June 29, 2017
In the Court of Common Pleas of Berks County Criminal Division at No(s):
CP-06-CR-0005551-2016
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2018
William Jones (“Appellant”) appeals from the judgment of sentence
entered June 29, 2017, following his conviction of violations of the Pharmacy
Act, 63 P.S. §§ 390-1–390-13, forgery,1 and criminal attempt2 related to
offenses under the Controlled Substance, Drug, Device and Cosmetic Act, 35
P.S. §§ 780-101–780-144. Appellant’s counsel has filed an application to
withdraw his 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.
Appellant has not filed a response to counsel’s petition. After careful review,
____________________________________________
1 18 Pa.C.S. § 4101(a)(3).
2 18 Pa.C.S. § 901(a).
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we grant counsel’s petition to withdraw and affirm the judgment of
sentence.
The convictions stem from Appellant’s participation in a scheme to
forge a physician’s signature on a Child and Family Support Services
prescription pad and receive oxycodone pills for his personal use. Appellant
submitted a forged prescription for oxycodone to a pharmacist at the Cumru
Township Giant Store on October 6, 2016. Because the pharmacist was
unable to verify the authenticity of the prescription, he did not fill it. A
Cumru Township police detective conducted an investigation of the incident,
which led to Appellant’s arrest. Following a waiver trial on June 29, 2017,
Appellant was convicted of the aforementioned offenses.
At sentencing, Appellant requested a mitigated range sentence. The
trial court sentenced Appellant on Count One (criminal attempt to commit
acquisition of a controlled substance by forgery) to incarceration for six to
twelve years, and on Count Four (forgery) to incarceration for one to five
years, concurrent to Count One. For sentencing purposes, Count Two
(unlawful acts under the Pharmacy Act) and Count Six (unlawful acts under
the Pharmacy Act) merged with Count One. Appellant received credit of 142
days for time served. The sentences were at the bottom of the mitigated
range of the sentencing guidelines.
Appellant filed a timely post-sentence motion for modification of his
sentence, which the trial court denied on July 11, 2017. This appeal
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followed. In lieu of a concise statement of errors pursuant to Pa.R.A.P.
1925(b), counsel filed a statement of intent to file an Anders/McClendon
brief on August 30, 2017. The PCRA court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on September 1, 2017.
Before we address the merits of this appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and
briefing requirements imposed upon an attorney who seeks to withdraw on
direct 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 his petition
to withdraw, counsel averred that he conducted a thorough review of
Appellant’s case and determined that the appeal would be frivolous. Counsel
sent 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. In the letter, counsel
advised Appellant that he could either represent himself on appeal or retain
private counsel to represent him.
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We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
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.
Santiago, 978 A.2d at 361.
Counsel’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case, outlines pertinent case authority, cites to
the record, and refers to an issue of arguable merit. Anders Brief at 3–20.
Further, the brief sets forth counsel’s conclusion that the appeal is frivolous
and the reasons for counsel’s determination. Id. at 27–28. “Therefore, we
now have the responsibility 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. Tukhi, 149 A.3d 881, 886 (Pa.
Super. 2016) (citation and internal quotation marks omitted).
In the Anders brief, counsel presents a single issue for our
consideration: “Whether Appellant’s mitigated range sentence of 6 years to
12 years in a state correctional institution was manifestly excessive, clearly
unreasonable, and contrary to the fundamental norms underlying the
Sentencing Code where the court failed to fully consider [Appellant’s] age,
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health problems, and status as an honorably discharged veteran?” Anders
Brief at 9. This issue challenges the discretionary aspects of Appellant’s
sentence. We note that “[t]he right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107
A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (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:
We 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. [708]; (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, 533 (Pa.
Super. 2006)). The determination of whether there is a substantial question
is made on a case-by-case basis, and this Court will grant the appeal only
when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
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Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912–
913 (Pa. Super. 2000).
Herein, Appellant has satisfied the first, second, and third
requirements of the four-part test: He brought a timely appeal, challenged
his sentence in a post-sentence motion, and included in his Anders brief the
necessary separate concise statement of the reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f). Notice of Appeal,
8/8/17; Post Sentence Motion, 7/11/17, at ¶¶ 11–12; Anders Brief at 22.
We therefore turn to the final requirement: whether the question
raised by Appellant is a substantial question meriting our discretionary
review. With regard to this requirement, “[w]e examine an appellant’s Rule
2119(f) statement to determine whether a substantial question exists.”
Commonwealth v. Ahmad, 961 A.2d 884, 886–887 (Pa. Super. 2008).
Appellant’s Rule 2119(f) statement cites the general standards of the
Sentencing Code set forth at 42 Pa.C.S. § 9721 as support for his claim that
the sentencing court “did not properly consider aspects of the circumstances
of the crime or the character of Appellant.” Anders Brief at 22. “A claim
that a sentencing court sentenced a defendant without taking into account
his or her character and background . . . raises a substantial question that
the sentence is inappropriate under the Sentencing Code.” Commonwealth
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v. Luketic, 162 A.3d 1149, 1162 (Pa. Super. 2017). Because Appellant’s
argument raises a substantial question, we will review it on the merits.
Our standard of review follows:
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 order to
establish that the sentencing court abused its discretion, the
defendant 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. The rationale
behind such broad discretion and the concomitantly deferential
standard of appellate review is that the sentencing court is in the
best position to determine the proper penalty for a particular
offense based upon an evaluation of the individual circumstances
before it. To determine whether the trial court made the proper
considerations during sentencing, an appellate court must, of
necessity, review all of the judge’s comments.
Luketic, 162 A.3d at 1163.
Our careful review of the record reveals that the trial court did not
abuse its discretion in sentencing Appellant. The trial court acknowledged
on the record that it had a presentence investigation report (“PSI”) on
Appellant. N.T., 6/29/17, at 34. The prosecutor placed on the record the
applicable provisions of the sentencing guidelines, Appellant’s prior record
score, and the Commonwealth’s sentencing recommendations, as well as the
fact that Appellant still had possession of the forged prescription weeks after
he attempted to fill it. Id. at 35–36. Additionally, the trial court heard from
defense counsel that Appellant’s repeat-felon prior record score was based
on offenses from 1968, 1974, and as recently as 2014; Appellant had health
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issues—a stomach aneurysm, three stents in his heart; Appellant was
seventy years old; and Appellant served in Vietnam and was honorably
discharged from the military. Id. at 36–37. The trial court also heard from
Appellant:
I’ve been sorry ever since this happened. Your Honor, I fought
in the war a long time ago. You Honor, I fought for my country.
I got old. I made a mistake, and I’m sorry. I’m kind of scared,
too. I made a mistake, Your Honor. So I’m in your hands.
Id. at 37.
Before imposing sentence, the trial court explained its reasoning, as
follows:
All right. I have reviewed the PSI, it paints a bleak
picture, starting in the 1960s. It encompasses very many
different types of offenses, a substantial percentage of which are
related to fraud and theft. I’ve taken other information in the
PSI into account, including [Appellant’s] health, [Appellant’s]
military service. I’ve also taken into account the fact that
[Appellant] did not choose to defend this case by denial. I
understand counsel’s use of the -- attempted use of the defense
of duress. The fact that [Appellant] did not choose to testify and
tell some ridiculous tale that would have been belied by the
evidence is to his credit, and I’m going to recognize that.
* * *
I’ve also taken into account [Appellant’s] age. That being
said, people who get up in years should be particularly careful
not to run afoul of our laws, especially laws as serious as this
one.
You are . . . a product of your record here. This would be
an entirely different day if you did not have such an extensive
record that extended over so many years. But I must also take
into account the fact that I may not impose a sentence which
would diminish the seriousness of this offense and also the
brazenness of it; it’s pretty audacious. I don’t purport to pass
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myself off as a medical doctor, but a prescription for 120 doses
of oxycodone, I don’t believe is in common use any longer, if it
ever was.
N.T., 6/29/17, at 37–38.
Appellant has failed to 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. Indeed, equipped with a PSI, the trial court
considered all of the factors Appellant identifies on appeal as relevant to
consideration of his personal circumstances and characteristics. See
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (“Where
the sentencing judge had the benefit of a presentence investigation report, it
will be presumed that he or she was aware of the relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.”). Thus, Appellant’s sentencing challenge
lacks merit.
Finally, we have independently reviewed the record in order to
determine if appellate counsel’s assessment about the frivolous nature of the
present appeal is correct. Tukhi, 149 A.3d at 886; see also
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(holding that, after determining counsel has satisfied the technical
requirements of Anders and Santiago, this Court must conduct an
independent review of the record to determine if there are additional, non-
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frivolous issues overlooked by counsel). After review of the issue raised by
counsel and our independent review of the record, we conclude that an
appeal in this matter is frivolous. Accordingly, we grant appellate counsel
permission to withdraw and affirm the judgment of sentence.
Application to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2018
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