Com. v. Santiago, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHANE LUIS SANTIAGO :
:
Appellant : No. 2527 EDA 2017
Appeal from the Judgment of Sentence July 5, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0004491-2012
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 07, 2018
Appellant Shane Luis Santiago appeals from the judgment of sentence
entered in the Court of Common Pleas of Chester County on July 5, 2017, at
which time he was sentenced to an aggregate term of six and one half (6 ½)
years to thirteen (13) years in prison following his open guilty plea to two (2)
counts of possession with intent to deliver (PWID)(marijuana), one (1) count
of criminal conspiracy, five (5) counts of animal fighting, and one (1) count of
endangering the welfare of children.1 Appellant’s counsel also has filed a brief
____________________________________________
135 Pa.C.S.A. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903(c), 5511(h.1)(3), and
4304(a)(1), respectively. Relevant to our discussion herein is the mandatory
minimum sentence of two (2) years to four (4) years Appellant received for
PWID within a school zone pursuant to Section 6317 of the Crimes Code, 18
Pa.C.S.A. §§ 101-9402.
____________________________________
* Former Justice specially assigned to the Superior Court.
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pursuant to Anders v. California, 386 U.S. 738 (1967) and its Pennsylvania
counterpart Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009)
(hereinafter “Anders Brief”) together with a petition to withdraw as counsel.2
Following our review, we grant counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
Appellant did not file a direct appeal of his sentence with this Court;
however, he filed a timely PCRA petition on July 28, 2014. Therein, Appellant
argued the United States Supreme Court’s decision in Alleyne v. United
States, 133 S.Ct. 2151 (2013) rendered unconstitutional the mandatory
minimum sentence he had received pursuant to 18 Pa.C.S.A. § 6317 for PWID
within a school zone. A panel of this Court agreed and determined his case
was identical procedurally to and, therefore, controlled by our recent decision
in Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa.Super. 2016)
(holding the mandatory minimum sentencing scheme set forth in Section
9712.1 and under which the appellant had been sentenced was
unconstitutional in light of Alleyne). Consequently, we determined Appellant’s
sentence was illegal because Alleyne had rendered Section 6317 facially
unconstitutional and remanded “for resentencing without the consideration of
the mandatory minimum sentence in Section 6317.” Commonwealth v.
____________________________________________
2 Anders set forth the requirements for counsel to withdraw from
representation on direct appeal, and our Supreme Court applied Anders in
Santiago.
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Santiago, No. 3449 EDA 2014, unpublished memorandum at 5 (Pa.Super.
filed December 11, 2015).
Following remand, a hearing was held on July 5, 2017, at which time
the Commonwealth requested that the trial court resentence Appellant to the
sentence he had received previously. N.T., 7/5/17, at 6. The trial court
indicated that while it was aware Appellant had been doing fairly well in prison,
it had found particularly concerning and “shocking” the description of the dog
fighting that Appellant had, himself, provided to police which had been
incorporated in the Affidavit of Probable Cause. Id. at 6-8, 12. The trial court
expressed that it was “looking at the entire package of all the charges rather
than breaking it down charge by charge” and considering whether “the original
sentence [was] fair, not putting a mandatory[.]” Id. at 12. Specifically, the
trial court highlighted that:
[He] talks about killing ten dogs, the way they killed them,
the way he did it and saying if the dog didn’t perform, basically do
his job, the dog would get killed because the dog’s job was to
fight. And he did that in a house with small children. And it’s not
as [the prosecutor] says, or what [Appellant] says, it’s not
explained culturally. It’s a horrifically cruel thing to do.
***
[W]hen they go into [Appellant’s] house, they got the things
commonly used to fight pit bulls, bite sticks, heavy chains,
treadmills, coats cable tied into a noose, electric cords, one end
cut off with blood on it, car jumper cables, dog hairs on one of the
contacts. Your statement to the police is if a pit bull fighting dog
stops fighting during a match, which you described as quit or
quitting, the dog that quit would have to be killed.
You say there are multiple ways to kill a dog, including
shooting the dog, drowning the dog, hanging the dog or
electrocuting the dog. [Appellant] stated that he personally killed
at least ten dogs by hanging or electrocution. He described
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manually electrocuting a dog by using a car battery jumper cables
by placing one jumper cable on the dog’s tongue and the other
jumper cable on the dog’s genitalia, and plugging the cut portion
into a household socket multiple times until the dog died. And
you’re doing that while you have five children in your house, ages
three to fifteen years of age.
I can’t get into Judge Gavin—if I had this case cold that day,
you would get more than six and a half to thirteen when you put
aside the marijuana, because it’s just that outrageous. And it’s
not explained by culture. There is an aspect that is sadsm here,
that there’s ways to kill things. And you’re equating it, in a sense,
to like farm animals. They have a job and they don’t do the job.
But if you’re sticking something into his genitalia and plugging it
in and shocking it, that’s not on, that’s not cutting something’s
throat simply because it’s not an effective breeder or doing
whatever. That’s simply cruel. And that cruelty part of the case
is what sticks in my groin.
Id. at 8, 27-28. The court also remarked that the prior sentencing court ran
some of Appellant’s sentences concurrently and deemed the overall sentence
to be appropriate. Id. at 23.
After further discussion including references to the presentence
investigation (PSI) report, the profound affect the animal abuse had had upon
Appellant’s children, especially his youngest child, and Appellant’s numerous
write-ups while in prison, id. at 28-36, the trial court ultimately resentenced
appellant to an aggregate term of six and one half (6 ½) years to thirteen
(13) years in prison with credit for time served from December 5, 2015, and
without consideration of the mandatory minimum sentence in 18 Pa.C.S.A. §
6317. Id. at 38. Appellant filed a timely notice of appeal on August 2, 2017,
and on August 21, 2017, he filed his Concise Statement of Matters Complained
of on Appeal wherein he raised six claims of error. The trial court filed its
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Opinion Pursuant to Pa.R.A.P. 1925 on October 23, 2017, wherein it addressed
each of those claims.
On February 20, 2018, counsel filed his Motion Seeking Permission to
Withdraw as Counsel and Anders Brief with this Court. Appellant filed no
further submissions either pro se or through privately-retained counsel
following counsel’s filing of the petition to withdraw. The Commonwealth filed
a brief with this Court on March 22, 2018.
Prior to addressing the questions raised on appeal, we must first resolve
counsel's petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa.Super. 2007) (en banc). See also Commonwealth v. Rojas, 874
A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen 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 pursuant to which 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.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago stated
that an Anders brief must:
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(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, supra at 178-79, 978 A.2d at 361. Counsel also must provide the
appellant with a copy of the Anders brief, together with a letter that advises
the appellant of his or her right to “(1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant
deems worthy of the court's attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these
requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super. 2007).
Herein, counsel contemporaneously filed his Motion Seeking Permission
to Withdraw As Counsel and Anders Brief. In his petition, counsel states that
after a careful and conscientious examination of the record he has determined
that no meritorious issues exist and an appeal herein is wholly frivolous. See
Motion Seeking Permission to Withdraw as Counsel at ¶¶ 3-4. The petition
further explains that counsel notified Appellant of the withdrawal request and
forwarded a copy of the Anders Brief to Appellant together with a letter
explaining his right to proceed pro se or with new, privately retained counsel
to raise any additional points or arguments that Appellant believed had merit.
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See id. at 4-5; see also Anders Brief, “Letter to Appellant” attached as
Appendix “D.” The petition indicates that a copy of the Motion to Withdraw as
Counsel, Anders Brief, and notice letter were served on Appellant and these
documents correctly inform Appellant of his rights.
In the Anders Brief, counsel provides a summary of the facts and
procedural history of the case with citations to the record, refers to evidence
of record that might arguably support the issues raised on appeal, provides
citations to relevant case law, and states his reasoning and conclusion that
the appeal is wholly frivolous. See Anders Brief at 14-32. Accordingly,
counsel has complied with all of the technical requirements of Anders and
Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we proceed to examine the issues of arguable
merit identified in the Anders Brief. Therein, counsel presents the following
issues verbatim:
1. Did the re-sentencing court improperly consider the case
docketed at No.: CP-15-CR-0000322-2013 when it
resentenced Appellant?
2. Did the resentencing court improperly calculate Appellant’s
offense gravity score and prior record?
3. Was the aggregate sentence imposed unreasonable?
4. Did the re-sentencing court improperly think it could
increase Appellant’s sentence?
5. Did the re-sentencing court fail to consider the facts and
circumstances of Appellant’s case?
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6. Is Appellant’s sentence illegal because the sentencing court
sentenced Appellant over the guidelines and failed to specify
on the record a finding of any aggravating factors?
Anders Brief at 13-14 (unnecessary capitalization omitted). In its Rule
1925(a) Opinion, the trial court disposed of the aforementioned issues as
follows:
In his first issue, [A]ppellant claims that the court
improperly resentenced him on both cases, even though the
Superior Court only reversed the sentence as it pertained to the
PWID charges. While it is true that the Superior Court found an
error with the sentence appellant received for the PWID charges,
it cannot be said that the Court "remanded only the present
matter [4491-12] for resentencing." See Concise Statement of
Matters Complained of on Appeal. Appellant took issue with the
entire sentencing scheme and appealed both cases. He did this
because the court considered both cases together and came up
with a comprehensive sentence for all charges to which appellant
pled guilty. When the Superior Court issued its ruling, the entire
sentencing scheme was affected and both cases were remanded
back for resentencing. Accordingly, it was both proper and
necessary to consider both cases during the resentencing hearing.
The court notes that both docket numbers appear on the
Superior Court's decision, confirming that the Court's ruling
applied to both cases. Also, in the Court's Memorandum, the Court
discussed all charges from both docket numbers and the
aggregate sentence together, further evidencing that the remand
applied to both cases. In addition, a review of the transcript of the
resentencing hearing shows that the court, the prosecutor, and
[A]ppellant's attorney discussed the cases together, as it was
clear that [A]ppellant had to be resentenced on all charges.
Moreover, even if it is found that the court should not have
resentenced appellant on the charges under docket number 322-
13, he suffered no prejudice as a result of the resentencing, as he
received the same sentence that he received previously for those
charges.
Appellant next argues that the resentencing court
improperly calculated the appellant's Prior Record Score ("PRS")
as a five (5), when the score should be a three (3), and improperly
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calculated appellant's Offense Gravity Score ("OGS") as a five (5)
when that also should have been a three (3). (Appellant's counsel
states, however, that the PRS may be a four (4). See Concise
Statement of Matters Complained of on Appeal.) The following
exchange occurred at the resentencing hearing:
MR. NORCINI: The guidelines at the time with an OGS
of three, I believe he had a prior record score of three at
the time, so the guidelines would be RS to twelve. And
that I think is the count to which the Superior Court sent
the case back for resentencing.
MR. BARRAZA: He had a prior record score of five.
MR. NORCINI: I'm sorry.
MR. BARRAZA: That places the guidelines at twelve to
eighteen months.
MR. NORCINI: I'm sorry. I didn't mean to misstate that.
N.T. 7/5/17, p. 5. The prosecutor then laid out all of [A]ppellant's
prior convictions that were considered when determining
[A]ppellant's PRS. They included a 1996 conviction for possession
of a controlled substance, a 1997 summary conviction for
disorderly conduct, a 1998 conviction for possession of a
controlled substance, a 1998 conviction for possession with intent
to deliver, a 2000 conviction for possession with intent to deliver,
a 2002 conviction for theft by unlawful taking, and a 2006
conviction for terroristic threats. No objections were made at the
time. Accordingly, he is not permitted to raise one now. It should
be noted that during the prior sentencing hearing, defense counsel
at that time also agreed that the PRS and OGS were correct. See
N.T. 11/13/13, pp. 8-10. See also, prior counsel's Memorandum
in Aid of Sentencing. In addition, for the reasons discussed below,
[A]ppellant's new sentence is proper since the sentence received
was not greater than the lawful maximum.
Appellant next argues that the aggregate sentence imposed
was unreasonable as the sentence on Count One (1) is above the
standard range of the Sentencing Guidelines and was imposed
consecutive to the sentence on Count Two (2). 42 Pa.C.S.A. §9721
sets forth the types of sentences that can be imposed by a court
in this Commonwealth. It also indicates the factors that should be
taken into account when determining the appropriate punishment.
The statute states in relevant part:
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(a) General rule. --In determining the sentence to be
imposed the court shall, except as provided in
subsection (a.1), consider and select one or more of the
following alternatives, and may impose them
consecutively or concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment.
*****
(b) General standards. - In selecting from the
alternatives set forth in subsection (a) the court shall
follow the general principle 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. The court shall also consider any guidelines
for sentencing adopted by the Pennsylvania Commission
on Sentencing and effect pursuant to section 2155
(relating to publication of guidelines for sentencing). In
every case in which the court imposes a sentence for a
felony or misdemeanor, the court shall make as a 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. In every case where the court
imposes a sentence outside the sentencing guidelines
adopted by the Pennsylvania Commission on Sentencing
pursuant to section 2154 (relating to adoption of
guidelines for sentencing) and made effective pursuant
to section 2155, the court shall provide a
contemporaneous written statement of the reason or
reasons for the deviation from the guidelines. Failure to
comply shall be grounds for vacating the sentence and
resentencing the defendant.
42 Pa.C.S.A. §9721. It should be noted that in this
Commonwealth:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be
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disturbed on appeal absent a manifest abuse of that
discretion. However, the sentencing court must state its
reasons for the sentence on the record, which in turn
aids in determining "whether the sentence imposed was
based upon accurate, sufficient and proper information.
. . ." 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. "It must be demonstrated
that the court considered the statutory factors
enunciated for determination of sentencing alternatives,
and the sentencing guidelines." Additionally, the court
must impose a sentence which 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 the
community, and the rehabilitative needs of the
defendant." Where the sentencing judge had the benefit
of a pre -sentence report, however, it will be presumed
that he "was aware of relevant information regarding the
defendant's character and weighed those considerations
along with mitigating statutory factors."
Com. v. Dotter, 589 A.2d 726, 730 (Pa. Super. 1991) (citations
omitted). See also, Com. v. Andrews, 720 A.2d 764 (Pa. Super.
1998) and Com. v. Lawson, 650 A.2d 876 (Pa. Super. 1994).
In the instant case, [ ] [A]ppellant was correctly sentenced
in accordance with 42 Pa.C.S.A. §9721 and existing case law. The
court took into account all relevant factors, including all the
information provided in the presentence investigation report, and
considered the protection of the public, the gravity of the offense,
and the rehabilitative needs of the appellant in order to determine
an appropriate sentence. Appellant's prior criminal record, the
failure of all prior efforts at rehabilitation, the seriousness of the
crimes charged, and all other factors led to the conclusion that
appellant should have been sentenced to an aggregate jail term
of 6 ½ to 13 years of incarceration.
The court notes that a sentence for a particular crime can
be in the mitigated range, standard range, or aggravated range.
It can also be above the aggravated range, as long as the
sentence is not greater than the statutory maximum for that
crime. The court is also permitted to run sentences concurrently
or consecutively. In order to fashion an appropriate sentence in
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this case, most of [A]ppellant's sentences were in the standard
range while one was above that. In addition, some sentences were
run consecutively, while others were run concurrently. Further,
[A]ppellant received no penalty for some of his crimes. All of the
sentences received, however, were well within the statutory
limits. In addition, during the resentencing hearing, the court fully
explained its reason for sentencing appellant the way it did. See
N.T. 7/5/17. After properly applying all relevant factors, the court
decided on an appropriate sentence for the crimes to which
[A]ppellant pled guilty.
Appellant next argues that the resentencing court
improperly thought that it could increase [A]ppellant's sentence
at his resentencing. This argument fails for two reasons. First, the
court did not increase [A]ppellant's sentence. To the contrary, he
received the same sentence that he received previously. Second,
even if the sentence was increased, the court is permitted to do
so. When a matter is remanded back for resentencing, the slate is
wiped clean and the court is permitted to evaluate the matter as
if there was no prior sentencing hearing. The new sentence may
be longer than the original sentence, shorter than the original
sentence, or the same as the original sentence. As long as the
court does not abuse its discretion, the sentence should be upheld.
Even though [A]ppellant was hoping for a reduced sentence, the
court did not abuse its discretion for failing to sentence him to a
shorter period of incarceration.
Appellant also argues that the court improperly failed to
consider the facts and circumstances of the case when it
resentenced [A]ppellant. He also claims that the court illegally
resentenced [A]ppellant as the sentence he received on Count
One (1) is over the guidelines and the court failed to specify on
the record a finding of any aggravating factors. Again, these
contentions are contradicted by the record. A review of the
transcript from the resentencing hearing shows that the court took
into account all relevant factors when determining an appropriate
sentence and it explained specifically why [A]ppellant received the
sentence he received. The court questioned [A]ppellant about
misconducts he received while he has been in prison. N.T. 7/5/17,
pp. 18-22, 25-26. It also carefully considered the nature of the
crimes to which [A]ppellant pled guilty, which are particularly
egregious. N.T. 7/5/17, pp. 27-31, 34-38. He admitted to killing
at least ten (10) dogs by hanging or electrocution. He would
electrocute a dog by using jumper cables. He would place one
jumper cable on the dog's tongue and the other on the dog's
genitals. He would then plug it into a household socket multiple
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times until it died. His children, ages three (3) and fifteen (15)
were in the house when this was going on. One of the children
saw appellant hit a dog with a sledge hammer and she could hear
screaming coming from inside the house. She is now permanently
emotionally scarred as a result of what she saw and heard. N.T.
7/5/17, pp. 27, 30.
With regard to the drug cases, on July 11, 2012, [A]ppellant
delivered 1/8 ounce of marijuana to a confidential informant. The
delivery occurred in a playground where his children were playing.
On July 17, 2012, appellant delivered 2.4 grams of marijuana from
his home to a confidential informant. His children were present in
the home when the transaction occurred.
In addition to evaluating [Appellant’s] conduct while in
prison and the particularly cruel facts of these cases, the court
addressed the protection of the public, the gravity of the offenses
and the rehabilitative needs of [ ] [A]ppellant. N.T. 7/5/17, pp.
34-38. Only after considering all circumstances surrounding this
case and applying all relevant factors, the court sentenced
[A]ppellant to an appropriate sentence of 6 ½ to 13 years in
prison.
Trial Court Opinion, filed 10/23/17, at 2-7.
In light of the foregoing and following our independent review of the
merits of the case where we make an independent judgment deciding whether
the appeal is in fact wholly frivolous, see Commonwealth v. Wrecks, 931
A.2d 717, 721 (Pa.Super. 2007), we have found no indication of non-frivolous
issues. The record supports the trial court’s rationale, and we would have no
need to disturb it. Therefore, we grant counsel's petition to withdraw and
affirm appellant's July 5, 2017, judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/18
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