Com. v. Spess, M. ( 2017 )

J-S55041-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
MICHAEL J. SPESS, :
:
Appellant : No. 444 MDA 2017
Appeal from the Judgment of Sentence December 15, 2016,
in the Court of Common Pleas of Luzerne County,
Criminal Division, at No(s): CP-40-CR-0001456-2016
CP-40-CR-0002355-2016
BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 11, 2017
Michael J. Spess (Appellant) appeals from his December 15, 2016
judgment of sentence imposed at case number CP-40-CR-0002355-20161
after he pled guilty to burglary and theft by unlawful taking. Appellant’s
counsel has filed a petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant
counsel’s petition to withdraw.
1 On December 15, 2016, Appellant was also sentenced, following a guilty
plea, in a case filed at docket number CP-40-CR-0001456-2016 on charges
that resulted from different criminal acts. However, he expressly declined to
challenge any aspect of his judgment of sentence in that case in his post-
sentence motion. Accordingly, his March 6, 2017 notice of appeal in case
CP-40-CR-0001456-2016 was untimely filed, and we quash that appeal.
See Pa.R.Crim.P. 720(A)(3); Commonwealth v. Wrecks, 934 A.2d 1287,
1289 (Pa. Super. 2007) (quashing for lack of jurisdiction appeal filed more
than 30 days after imposition of judgment of sentence).
*Retired Senior Judge assigned to the Superior Court.
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On June 3, 2016, the Snyders arrived at their home just as Appellant
was fleeing out their back door with, inter alia, their credit cards, watches,
jewelry, and gun. Shortly thereafter the police spotted Appellant walking
with the gun and arrested him. Appellant subsequently entered an open
guilty plea to burglary and theft by unlawful taking. On December 15, 2016,
Appellant confirmed that his plea was voluntary and that he did not wish to
withdraw it, and was given at each count concurrent sentences of 12 to 30
months of imprisonment. Appellant timely filed a post-sentence motion
which was denied by order of February 21, 2017.2 This appeal followed.3
In this Court, Appellant’s counsel filed both an Anders brief and a
petition to withdraw as counsel. Accordingly, the following principles guide
our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
2 The motion was time-stamped as filed on December 27, 2016, which
became the due date for the timely filing of the motion, given that the court
was closed on Sunday, December 25 and Monday, December 26, 2016.
However, the trial court had been unaware of the motion until it was
attached as an exhibit to another filing in the trial court, and it was not
entered on the trial court docket until after it was so directed by this Court’s
order of April 4, 2017.
3 Although the trial court ordered Appellant to file a concise statement of
errors complained of on appeal, and none was filed, no waiver results
because the order was not entered properly on the docket. See, e.g.,
Commonwealth v. Davis, 867 A.2d 585, 588 (Pa. Super. 2005) (en banc)
(holding no waiver for failure to file concise statement where the clerk of
courts did not indicate that service had occurred, let alone the date of
service as required by Pa.R.Crim.P. 114).
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frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[I]n 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.
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Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has managed to do the bare
minimum to comply with the technical requirements set forth above.4
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. Flowers, 113 A.3d
1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n. 5).
The issue arguably supporting an appeal cited by Appellant’s counsel is
whether the trial court abused its discretion in sentencing Appellant to 12 to
30 months of imprisonment in a state correctional institution. In reviewing
the question, we bear in mind the following.
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 this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant 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.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
4 Appellant has not filed a response to counsel’s motion.
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Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(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, 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).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant timely filed a notice of appeal after preserving the
issue by filing a motion to modify sentence. The Pa.R.A.P. 2119(f)
statement before us is meager,5 but in Anders situations this Court has not
found review to be barred even in the absence of a 2119(f) statement.
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citations
omitted).
5 The one-sentence statement is as follows: “The trial court sentencing []
Appellant to in the high-end of the standard range is a substantial question
requiring discretionary review. 42 Pa.C.S.[] § 9781(b); Pa.R.A.P. 2119(f).”
Although our review is not precluded, we expect counsel to make more of an
effort than this.
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In his post-sentence motion, Appellant claimed that his sentence was
“unreasonable and excessive under the circumstances of the case,” namely
that: (1) he would receive no credit in this case for all of the time spent
incarcerated prior to sentencing because that time was properly credited to a
DUI sentence in another case; (2) the trial court did not give adequate
consideration to Appellant’s “relative lack of criminal history” and potential
to remain employed in the Luzerne County Correctional Facility if he were
given a county rather than a state sentence; and (3) Appellant has two
young children who live in Luzerne County. Motion to Modify Sentence,
12/27/2016, at ¶ 11.
We are not persuaded that Appellant raised a substantial question that
his sentence is inappropriate under the sentencing code. The sentencing
guidelines provided for a standard range sentence beginning at six to 14
months; Appellant was sentenced within the standard range to a minimum
of 12 months. The sentencing court here had the benefit of a presentence
investigation report and thus is presumed to have considered all relevant
information. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super.
2004). Appellant’s contention in the face of these facts that the trial court
should have given more weight to the mitigating factors he cited simply does
not merit review. See, e.g., Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa. Super. 2013) (“[T]his Court has held on numerous occasions that a
claim of inadequate consideration of mitigating factors does not raise a
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substantial question for our review.”) (citation and internal quotation marks
omitted).
Based upon the foregoing, we agree with counsel that a challenge to
the discretionary aspects of Appellant’s sentence is frivolous. Moreover, we
have conducted “a full examination of the proceedings” and conclude that
“the appeal is in fact wholly frivolous.”6 Flowers, 113 A.3d at 1248.
Accordingly, we affirm the judgment of sentence and grant counsel’s petition
to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2017
6 We have conducted our review mindful of the fact that “upon entry of a
guilty plea, a defendant waives all claims and defenses other than those
sounding in the jurisdiction of the court, the validity of the plea, and what
has been termed the ‘legality’ of the sentence imposed.” Commonwealth
v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).
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