Com. v. Brown, M. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
MICHAEL BROWN, : No. 690 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, January 20, 2017,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0004152-2016
BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 20, 2017
Michael Brown appeals from the January 20, 2017 judgment of
sentence entered in the Court of Common Pleas of Delaware County after his
conviction in a waiver trial of transfer of firearms -- materially false written
statement and unsworn falsification to authorities.1 The trial court imposed
a sentence of 13 to 26 months of imprisonment followed by 2 years of
state-supervised probation. Assistant Public Defender Patrick J. Connors has
filed a petition to withdraw, alleging that the appeal is frivolous,
accompanied by an Anders2 brief. After careful review, we grant counsel’s
petition to withdraw and affirm the judgment of sentence.
1 18 Pa.C.S.A. §§ 6111(g)(4)(ii) and 4904(a)(1), respectively.
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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The trial court set forth the following relevant findings of fact:
[O]n May 6, 2004, [appellant] was convicted in
Philadelphia of Possession with Intent to Deliver, an
ungraded felony, and Carrying a Firearm in a Public
Street. Possession with Intent to Deliver is
punishable by more than one year in prison.
On February 2, 2015, [appellant] attempted to
purchase a firearm, via the internet, from Double
Action located on Industrial Drive in the Borough of
Yeadon, Delaware County, Pennsylvania 19050.
In order to purchase the firearm, [appellant]
completed Pennsylvania State Police form SP-4-113,
Application/Record of Sale.
As to question[s] 31 and 32, pertaining to prior
convictions, [appellant] checked “No.”
Both questions direct the applicant to “read
information on back prior to answering.”
[Appellant] also completed the federal ATF form
4473: Firearms Transaction Record -- Part I.
Questions 11b and 11c of this form pertain to felony
convictions which could result in imprisonment for
more than one year. It also states “see instructions
for question 11b and 11c.”
[Appellant] checked “No” to questions 11b and 11c.
After the required criminal background check, as
[appellant] was convicted of one of the enumerated
offenses that prohibit ownership of a firearm, his
application and attempt to purchase were denied.
[Appellant] then filed a Pennsylvania Instant Check
Challenge where he indicated that he has never been
arrested in Pennsylvania or convicted.
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[Appellant], after being advised of his constitutional
rights, knowingly, intelligently and voluntarily elected
to testify.
[Appellant] testified that he pled guilty to the above
charges; that his lawyer never told him what the
possible penalties could be or what the guidelines
were; and did not remember his lawyer telling him
he would be a felon.
With regard to the instructions on both forms,
[appellant] testified as follows: (1) he understood
what the question said without reading the
instructions; (2) he does not recall whether he read
the instructions; or (3) he believes he did read the
instructions.
With regard to the challenge he filed, [appellant]
contends that Philadelphia and Pennsylvania are two
different places, which is why he answered “No” as
to being arrested in Pennsylvania.
Trial court opinion, 3/20/16 1-2, ¶¶ 7-20 (paragraph numbering and exhibit
references omitted).
The record reflects that appellant filed a timely notice of appeal. The
trial court then ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). In lieu of filing a
Rule 1925(b) statement, Attorney Connors filed a statement of intent to file
an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).
Appellant raises the following issue for our review: “Whether the
sentence of 13 to 26 months [of] incarceration imposed on [appellant] is
harsh and excessive under the circumstances?” (Appellant’s brief at 1
(italics omitted).)
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As Attorney Connors has filed an Anders brief and a petition to
withdraw as counsel alleging that the appeal is frivolous in accordance with
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), we begin as follows:
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
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 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
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appellant of the right to retain
new counsel, proceed pro se
or raise additional points
worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
. . . 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
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certain that appointed counsel has not overlooked
the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Connors’ application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel provided a copy of the
brief to appellant and advised him of his right to retain new counsel, proceed
pro se, and/or raise any additional points that he deems worthy of this
court’s attention. In addition, Attorney Connors attached a copy of the
letter sent to appellant to his petition as required under Commonwealth v.
Millisock, 873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v.
Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in
Santiago set forth the new requirements for an Anders brief, which are
quoted above, the holding did not abrogate the notice requirements set forth
in Millisock that remain binding legal precedent.”). As Attorney Connors
has complied with all of the requirements set forth above, we conclude that
counsel has satisfied the procedural requirements of Anders.
Once counsel has satisfied his obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5.
Therefore, we now turn to the merits of appellant’s appeal.
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Appellant raises a challenge to the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e 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.
[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. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation
omitted; brackets in original).
Here, appellant filed a timely notice of appeal, and appellant’s brief
contains a Pa.R.A.P. 2119(f) statement. The record, however, reflects that
appellant did not properly preserve his discretionary sentencing challenge for
appeal because he did not file a motion to reconsider and modify sentence
and he did not raise the issue at his sentencing hearing. Nevertheless,
under our Anders review, we will consider the merits of the issue. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009), citing
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Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001)
(finding that Anders requires review of issues which otherwise would be
waived on appeal).
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
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.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
Here, appellant claims that the trial court imposed a harsh and
excessive sentence. The record reflects that appellant was convicted of
transfer of firearms, a third-degree felony punishable by up to 7 years of
imprisonment. See 18 Pa.C.S.A. § 1103(3). The trial court sentenced
appellant to 13 to 26 months of imprisonment on that count. The record
further reflects that appellant was also convicted of unsworn falsification to
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authorities, a second-degree misdemeanor, punishable by up to 2 years of
imprisonment. See 18 Pa.C.S.A. § 1104(3). The trial court sentenced
appellant to 2 years of probation on that count. Accordingly, although
appellant faced a maximum statutory period of incarceration of 9 years, the
trial court imposed a substantially lower term of imprisonment.
The record further reflects that the trial court explained the reasons for
the sentences that it imposed as follows:
I looked at the Pre-Sentence Investigation Report
[(“PSI”)], you don’t help yourself in the [PSI]. And I
have to consider that the nature of the crime, the
impact on society, the [PSI], and the guidelines.
Now the guidelines for a firearm when you do a
materially false written statement, in the standard
range are 15 to 21 months in a state correctional
institution. The mitigated range is six months and
the aggravated range is 30 months. For the
unsworn falsification, the standard is restorative
sanctions to three months in prison. Now based on
the information I have, and I know [the
Commonwealth] has asked for 20 months, I’m not
going to give 20 months. I’m going to sentence you
to 13 to 26 months in a state correctional institution.
. . . And you’re going to be followed on Count Two,
unsworn falsifications for two years [of] probation.
Notes of testimony, 1/20/17 at 8.
In addition to being well below the statutory maximum, the record
reflects that the term of incarceration imposed on appellant fell within the
guidelines and was consistent with the broad purposes of our penal system.
See Lilley, 978 A.2d 999, citing Commonwealth v. Williams, 652 A.2d
283, 285 n.1 (Pa. 1994) (noting “five broad purposes of the penal system:
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protection of society, general deterrence . . . , individual deterrence,
rehabilitation, and retribution”). Therefore, we find no abuse of discretion.
Finally, after a careful independent review of the record, we have not
disclosed any potentially non-frivolous issues. Accordingly, we grant
counsel’s petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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