Com. v. Thomas, R., III ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD FILMORE THOMAS, III,
Appellant No. 765 MDA 2017
Appeal from the Judgment of Sentence April 17, 2017
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0001300-2016
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 16, 2017
Appellant, Richard Filmore Thomas, III, appeals from the judgment of
sentence entered on April 17, 2017, following his guilty plea to burglary, 18
Pa.C.S. § 3502(a)(4). Appellate counsel has filed a petition to withdraw
representation and a brief pursuant to Anders v. California, 386 U.S. 738(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After
review, we grant counsel’s petition to withdraw, and we affirm the judgment
of sentence.
We turn to the relevant affidavit of probable cause sworn by
Pennsylvania State Trooper Damian F. Moran for the factual history:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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On 06/14/16 [Pennsylvania State Trooper] Michael Fortley
and I were working in full uniform . . . . At approx. 0249hrs[.] I
was dispatched to . . . Adams County for a report of a person
caught rifling through the office in the outbuilding.
Upon arrival I spoke with Jared Tyler HECKENLUBER at
that time he related he was outside of his house, at approx.
0230hrs. . . . when he saw a flashlight on in the barn and went
in to investigate who was in there. HECKENLUBER said none of
the doors on their property are regularly locked and this building
was no exception. When he got inside he found [Appellant]
walking around upstairs in the building, [Appellant] was wearing
a long sleeve shirt, jeans and had on gloves with a flashlight in
one hand, there was also a black trash bag sticking out of his
back pocket. HECKENLUBER said he knew [Appellant] from high
school and was able to positively identify him through a picture
on the computer terminal I showed him.
While I was investigating the scene I observed several
piles of power tools in different locations of the building, a pile of
hand tools with a spool of copper wire, a pile of drill bits, a .22
[caliber] rifle and a black garbage bag filled with other items.
HECKENLUBER told me all of the above mentioned items had
been taken from different locations in the building and placed
into these piles. HECKENLUBER said a set of keys, which unlock
all of the buildings on the property, was taken from the desk lap
drawer. HECKENLUBER said he estimated the value of all the
items that would have been stolen was over $1000.
Affidavit of Probable Cause, 6/24/16, at 1.
On January 17, 2017, Appellant entered an open guilty plea to
burglary graded as a second-degree felony. Following a presentence
investigation (“PSI”), the common pleas court sentenced Appellant on April
17, 2017, to twenty-one to sixty months of imprisonment. Appellant filed a
post-sentence motion on April 26, 2017, which the trial court denied on April
26, 2017. This timely appeal followed.
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On May 10, 2017, the trial court ordered the filing of a concise
statement of matters complained of on appeal. Counsel timely filed a
statement indicating that he intended to seek to withdraw pursuant to
Anders.1 See Pa.R.A.P. 1925(c)(4) (“In a criminal case, counsel may file of
record and serve on the judge a statement of intent to file an
Anders/McClendon brief in lieu of filing a Statement.”). On June 6, 2017,
the trial court filed a statement in which it advised that it would not file an
opinion due to counsel’s intention to seek to withdraw representation.
Before we address the question raised on appeal in the Anders brief,
we must resolve appellate counsel’s request to withdraw. Commonwealth
v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). See
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (stating,
“When faced with a purported Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.”).
There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on 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
____________________________________________
1 Anders sets forth the requirements for counsel to withdraw from
representation on direct appeal. See also Santiago, 978 A.2d 349(applying Anders in state court).
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determined that the appeal would be frivolous; 2) furnish a copy
of the brief to [his client]; and 3) advise [his client] that he or
she has the right to retain private counsel or raise additional
arguments that the [client] deems worthy of the court’s
attention.
Cartrette, 83 A.3d at 1032 (citation omitted).
In addition, our Supreme Court, in Santiago, stated that an 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.
Santiago, 978 A.2d at 361.
Appellant’s counsel has complied with the first prong of Santiago by
providing a summary of the procedural history in the Anders brief. He has
satisfied the second prong by referring to any evidence in the record that he
believes arguably supports the appeal. Counsel also set forth his conclusion
that the appeal is frivolous and stated his reasons for that conclusion, with
appropriate support. Moreover, counsel filed a separate motion to withdraw
as counsel, wherein he stated that he examined the record and concluded
that the appeal is wholly frivolous. Further, counsel has attempted to
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identify and develop any issues in support of Appellant’s appeal.
Additionally, counsel sent a letter to Appellant, and he attached a copy of
the letter to his Anders Brief. In the letter counsel stated that he informed
Appellant that he has filed an Anders brief, and he apprised Appellant of his
rights in light of the motion to withdraw as counsel. Appellant has not filed
any response to counsel’s motion to withdraw.
Based on the foregoing, we conclude that the procedural and briefing
requirements of Anders and Santiago for withdrawal have been met.
Therefore, we now have the responsibility to make an independent judgment
regarding whether the appeal is in fact wholly frivolous. Commonwealth v.
Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016).
In the Anders brief, counsel presents the following issue for our
review:
Whether the lower court abused its discretion in sentencing
Appellant to an aggravated range of 21 to 60 months in state
prison.
Anders Brief at 6.
This issue presents a challenge to the discretionary aspects of
Appellant’s sentence. Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right, and his challenge in this
regard is properly viewed as a petition for allowance of appeal. See 42
Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.
1987); Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000). An
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appellant challenging the discretionary aspects of his sentence must satisfy a
four-part test. We evaluate: (1) whether Appellant filed a timely notice of
appeal; (2) whether Appellant preserved the issue at sentencing or in a
motion to reconsider and modify sentence; (3) whether Appellant’s brief
includes a concise statement of the reasons relied upon for allowance of
appeal; and (4) whether the concise statement raises a substantial question
that the sentence is appropriate under the Sentencing Code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013). An
appellant must articulate the reasons the sentencing court’s actions violated
the sentencing code. Commonwealth v. Moury, 992 A.2d 162 (Pa. Super.
2010); Sierra, 752 A.2d at 912–913.
In the instant case, Appellant filed a timely appeal, the issue was
properly preserved in his post-sentence motion, and the Anders brief
contains a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a sentence pursuant to
Pa.R.A.P. 2119(f). Accordingly, we must determine whether Appellant has
raised a substantial question that the sentence is not appropriate under 42
Pa.C.S. § 9781(b). Moury, 992 A.2d at 170.
Whether a particular issue constitutes a substantial question about the
appropriateness of sentence is a question we evaluate on a case-by-case
basis. Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017). As
to what constitutes a substantial question, this Court does not accept bald
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assertions of sentencing errors; an appellant must articulate the reasons the
sentencing court’s actions violated the sentencing code. Commonwealth v.
Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).
In his Pa.R.A.P. 2119(f) statement asserting that his sentence was
excessive, Appellant lists eight purported mitigating factors that compelled
the court to impose “a lower sentence.” Anders Brief at 10. The trial court
noted Appellant had a prior record score of five and an offense gravity score
of five. Sentencing Order, 4/18/17. The standard Guidelines range was “12
to 18” months “with an aggravated range of plus three.” Id.A claim that the trial court failed to consider mitigating factors in
sentencing generally does not raise a substantial question.
Commonwealth v. Rhoades, 8 A.3d 912, 918–919 (Pa. Super. 2010).
See Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008)
(claim that court failed to consider mitigating factors in imposing consecutive
sentences did not raise substantial question); Commonwealth v. Bullock,
868 A.2d 516, 529 (Pa. Super. 2005) (where no specific provision of
sentencing code or fundamental norm is identified in claim that court failed
to consider mitigating factors, no substantial question raised). Here,
Appellant complains the trial court failed to consider mitigating factors; this
issue does not raise a substantial question.
Even if it raised a substantial question, the issue lacks merit. In the
sentencing order, the court indicated it received and reviewed the PSI
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report. Order, 4/17/17. Additionally, the court entertained comment from
both Appellant and his mother, who reiterated the mitigating factors
Appellant now states were ignored. N.T. (Sentencing), 4/17/17, at 3–5. We
assume, when a sentencing court was provided a PSI report, that the trial
court was aware of the relevant information regarding the defendant’s
character and weighed that information with other relevant mitigating
factors. Rhoades, 8 A.3d at 919. Accordingly, Appellant’s claim has no
merit.
We have independently reviewed the record in order to determine if
counsel’s assessment about the frivolous nature of the present appeal is
correct. Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (after determining that 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-
frivolous issues overlooked by counsel). After review of the issues raised by
counsel and our independent review of the record, we conclude that an
appeal in this matter is frivolous. Accordingly, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
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Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2017
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