Com. v. Soto, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RAUL SOTO :
:
Appellant : No. 356 EDA 2017
Appeal from the Judgment of Sentence December 15, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013896-2014
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 05, 2018
Appellant Raul Soto appeals from the judgment of sentence following
his guilty plea to aggravated assault, criminal conspiracy, firearms not to be
carried without a license, carrying firearms on a public street in Philadelphia,
and his nolo contendere plea to robbery.1 Appellant’s counsel has filed a
petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and its Pennsylvania counterpart, Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.
The trial court set forth the facts of this case as follows:
A summary of the facts admitted into evidence, and stipulated to
by Appellant, during the guilty plea colloquy is as follows: On
October 3, 2014, at around 3:08 a.m., the complaining witness,
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S. §§ 2702(a), 903, 6106(a)(1), 6108, and 3701(a)(1)(ii),
respectively.
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Joseph Siriani, dropped off a friend at 1016 West Tioga Street in
Philadelphia. As the friend went into a house, he waited outside
in his vehicle. He then observed a white or Hispanic male, wearing
a skeleton mask, approach his passenger vehicle window. The
male, who was later identified as Appellant, pointed “a long
shotgun type gun into his truck” and said, “Give me your money.”
The Appellant then started going through the complainant’s center
console and tried to grab the complainant’s car keys. The
complainant responded and pushed the Appellant away. The
complainant told the Appellant he did not have anything. Before
the complainant drove away, the Appellant was able to grab the
complainant’s cell phone from the center console.
The complainant made a U-turn and watched the Appellant run
into 1014 West Tioga Street. The complainant exited his vehicle,
banged on the door of that property, and saw the Appellant look
out the second floor window without any mask obstructing his
face. Appellant proceeded to the first floor of the property and
opened the front door. The complainant lunged at the Appellant
and in turn the Appellant fired two shots in the complainant’s right
leg. An unknown individual also began firing at the complainant
from a second floor window.
The complainant ran to his car and attempted to drive himself to
Temple University Hospital. Due to his injuries, he lost
consciousness at Germantown Avenue and Ontario Street. Police
Officers from the 25th District responded to the incident and
observed the complainant bleeding profusely from the gunshot
wound. The complainant was non-responsive so officers escorted
him to the hospital for treatment.
Video recovered from 1014 West Tioga Street revealed that the
Appellant resides at that location. It was later confirmed that
Appellant’s girlfriend, Yamarys Ramirez was also at the property
that day. She later told the police that Appellant had fired a gun
on that date. Following this incident, she stated Appellant took
“both guns” from 1014 West Tioga Street, dropped her off at her
home, and drove away.
While at Temple Hospital, the complainant was interviewed by
Detective Dusak[2] and shown a photo array. He identified the
Appellant as the man who shot him. A search warrant was
____________________________________________
2 Detective Dusak’s first name is not in the certified record.
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executed at 1014 West Tioga Street for the front second floor
bedroom. No firearms were recovered but “94 live rounds of 7.62
by 95 caliber along with an ammo drum and a banana magazine
clip” were discovered. The complainant’s cell phone was also not
recovered during the investigation. Based upon video surveillance
submitted into evidence, it was stipulated between the
Commonwealth and defense counsel that [A]ppellant appeared to
pick up something the complainant had dropped.
Trial. Ct. Op., 9/14/17, at 1-3 (citations omitted).
On April 4, 2016, Appellant pled guilty to aggravated assault, conspiracy
to commit aggravated assault, firearms not to be carried without a license,
and carrying firearms on a public street in Philadelphia. N.T., 4/4/16, at 3.
Appellant also pled nolo contendere to robbery. Id. at 3, 17.
At the sentencing hearing, on September 12, 2016, Appellant argued
that he did not intend to rob the complainant but was only attempting to scare
him. The trial court requested additional information and continued the
sentencing hearing. N.T., 9/12/16, at 14-20. On December 15, 2016, the
court reconvened the sentencing hearing and sentenced Appellant to an
aggregate term of nine to twenty years’ incarceration.3 Sentencing Order,
12/15/16.
____________________________________________
3 The trial court sentenced Appellant to 5 to 10 years’ incarceration for
aggravated assault, 4 to 10 years’ incarceration for conspiracy, 1½ to 3 years’
incarceration for firearms not to be carried without a license, 1 to 2 years’
incarceration for carrying firearms on a public street in Philadelphia, and 5 to
10 years’ incarceration for robbery. All sentences were to run concurrently,
except for the conspiracy and aggravated assault sentences, which were to
run consecutively.
The trial court found that Appellant had violated his probation on a
separate case and imposed a concurrent term of one to two years’
incarceration on that case. See Docket No. CP-51-CR-9275-2011.
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On December 23, 2016, Appellant filed a timely post-sentence motion
stating, “Your Honor sentenced [Appellant] on a violation of probation (CP-
9275-2011) to one—two years SCI concurrently with the sentence of 9-20
years SCI imposed on the above captioned matter. . . . The sentence imposed
was an abuse of the [c]ourt’s discretion and illegal.” Post Sentence Mot.,
12/23/16, at ¶¶ 1-2. The trial court denied Appellant’s motion on January 4,
2017.
Appellant filed a timely notice of appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.4 On appeal, counsel filed an
Anders/Santiago brief.
On June 26, 2018, this Court remanded the case for Appellant’s counsel
to file a proper petition to withdraw from representation or an advocate’s brief.
See Commonwealth v. Soto, 356 EDA 2017, at 5. We further instructed
that if counsel chose to file a petition to withdraw, he had to (1) attach to his
petition a copy of the letter to Appellant advising Appellant of his right to
proceed pro se or with private counsel; and (2) ensure that Appellant had
been furnished a copy of the Anders/Santiago brief. Id. at 5-6.
____________________________________________
4 Appellant’s counsel’s Rule 1925 statement indicated counsel’s intent to seek
withdrawal from representation pursuant to Anders. See Pa.R.A.P
1925(c)(4). Nevertheless, counsel indicated that Appellant intended to
challenge the trial court’s sentence as “excessive” and that the trial court
abused its sentencing discretion. Statement of Errors Complained of on
Appeal, 3/24/17. The trial court’s Rule 1925(a) opinion addressed Appellant’s
intended claims.
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On July 2, 2018, counsel filed a petition to withdraw and included a
certificate of service indicating that he had furnished to Appellant the letter
advising Appellant of his rights and the Anders/Santiago brief. See Pet. to
Withdraw, 7/2/18. Appellant did not file a pro se brief or a counseled brief
with new, privately-retained counsel.
Counsel’s Anders/Santiago brief identifies the following issue:
1. Whether there are any issues of arguable merit that could be
raised on direct appeal presently before this Court and whether
the appeal is wholly frivolous[.]
Anders/Santiago Brief at 4 (full capitalization omitted).
Because Appellant’s counsel elected to file a petition to withdraw from
representation, we must first address counsel’s petition before reviewing the
merits of the appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). To be permitted to withdraw, 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).
Here, as mentioned above, counsel filed a petition to withdraw with this
Court in which he stated that after “an extensive review of the record,” he
believes this appeal would be frivolous. Pet. to Withdraw at ¶ 2-3. Counsel
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furnished a copy of the Anders/Santiago brief to Appellant, as well as a letter
advising Appellant of his right to retain new counsel or proceed pro se. Ltr.
to Appellant, 7/2/18. We conclude that Counsel’s petition to withdraw
complies with the procedural dictates of Anders.
We next address whether Appellant’s counsel’s brief meets the
requirements established by the Pennsylvania Supreme Court in Santiago.
The 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.
Counsel’s brief provided a summary of the procedural history and the
relevant facts with appropriate citations to the record. Anders/Santiago
Brief at 5-8. Counsel’s brief also refers to the issue that he believes could
arguably support the appeal. Id. at 16-17. Counsel’s brief states that after
conducting a conscientious review of the record, he has determined that any
appeal would be frivolous, and sets forth his reasons for that conclusion. Id.
at 10-16. Accordingly, counsel has substantially complied with the
requirements of Anders and Santiago to support counsel’s assessment that
Appellant’s appeal is frivolous.
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In his Anders/Santiago brief, Appellant’s counsel identifies several
discretionary sentencing claims in support of the sole issue. Counsel notes
possible claims that (1) Appellant’s sentence was excessive; (2) Appellant had
many mitigating factors that weigh in his favor; (3) the trial court could have
placed more weight on Appellant’s rehabilitative needs; and (4) the trial court
should have run Appellant’s sentences concurrently. Id. at 11-17.
Before addressing the merits of a challenge to the discretionary aspects
of sentencing, we must determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]ppellant’s brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the [S]entencing [C]ode.
Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017) (citation
omitted).
The determination of whether there is a substantial question is made on
a case-by-case basis. Id. “A substantial question exists where a defendant
raises a plausible argument that the sentence violates a provision of the
sentencing code or is contrary to the fundamental norms of the sentencing
process.” Id. (citation and quotation marks omitted).
This court has held that “[t]here is ample precedent to support a
determination that [the appellant’s allegation that his sentence failed to take
into account his rehabilitative needs] fails to raise a substantial question.”
Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (citation
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omitted). Further, we have held “on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Radecki, 180 A.3d 441, 469
(Pa. Super. 2018) (citation omitted). Finally, we have explained that “the
imposition of consecutive rather than concurrent sentences will present a
substantial question in only ‘the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.’” Commonwealth v. Caldwell, 117 A.3d
763, 769 (Pa. Super. 2015) (en banc) (citation omitted); see also
Commonwealth v. Zirkle, 107 A.3d 127, 134 (Pa. Super. 2014) (reiterating
that a defendant is not entitled to a “volume discount” for his crimes).
Instantly, Appellant has filed a timely notice of appeal, a post-sentence
motion, and a Rule 1925 statement. Appellant’s counsel did not include a
Pa.R.A.P. 2119(f) statement of the reasons relied upon for allowance of appeal
in his brief. However, where counsel has filed an Anders/Santiago brief, “we
do not consider counsel’s failure to submit a Rule 2119(f) statement as
precluding review of whether Appellant’s issue is frivolous.” Commonwealth
v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).
Appellant’s discretionary claims that the trial court erred in imposing an
excessive sentence, in failing to consider his rehabilitative needs and
mitigating factors, and in imposing consecutive rather than concurrent
sentences generally do not raise substantial questions. See Radecki, 180
A.3d at 469, Caldwell, 117 A.3d at 769; Griffin, 65 A.3d at 936. Moreover,
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our independent review compels us to agree with counsel’s assessment that
this appeal is frivolous.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.” Rush, 162
A.3d at 544 (citation omitted). “An abuse of discretion requires the trial court
to have acted with manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support so as to be clearly erroneous.” Id. (citation
omitted). “A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.” Id.
(citation omitted).
In imposing Appellant’s sentence, the trial court stated:
I have considered the presentence and mental health; the prior
record; the testimony of the complainant in this case today; the
police reports; the memorandum by both the DA and Defense
Counsel, the sentencing memoranda; and the facts and
circumstances of this case; and, of course, the sentencing
guidelines.
[Appellant], we’re lucky this wasn’t a homicide. It easily could
have been with the firepower you came out with. It’s fortunate,
although, no badge of honor, that the complainant was only shot
in the leg, although he almost died on the way to the hospital with
what happened to him.
***
But that’s not the issue, the robbery or the aggravated assault or
the criminal conspiracy. The issue is that while you’re on
probation for what occurred with this previous girlfriend, the
assault, and also your previous record as a juvenile, as an adult,
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you had this kind of firepower inside your house, an AK-47. You
had all this ammunition, which is just unbelievable.
And there is no reason for any of this to have happened that night.
It just -- I just don’t understand it. I was asking the complainant
some very direct questions like why would he come to your door
after being shot at. That I don’t understand either. But that’s not
the issue.
Whether he came to your door, whether he was parked on the
street, whether he was screaming at you, curse words, nobody
deserves to be shot. The law doesn’t say, okay, it’s all right to
shoot somebody if they do what he did. Just like it’s not okay to
kill a drug dealer on the corner either. The law protects
everybody, whatever they’re doing, as long as he wasn’t
assaulting you and you needed to use deadly force, which is not
the case here.
***
I give you that sentence not out of any joy but because I think it’s
necessary to both protect the public and prevent this kind of thing
from happening again. I don’t know what drove you to this. And
I would have given you a far longer sentence if you hadn’t pled
guilty. I gave you credit for doing that and sparing everybody
from coming in and testifying.
However, I have to tell you that opening fire like you did and what
occurred here easily could be a homicide. It has no place, whether
it’s in North Philadelphia or any other part of the city. I hope that
you will use the time in prison to deal with whatever counseling
or whatever other issues have driven you to this point to have this
kind of a criminal record, because you will get out.
***
You will get out. You will have a significant period of your life
forward. But the question will be when you do get out, are you
going to have the tools to be successful. Are you going to be back
for parole violations? Are you going to spend a good part of the
rest of your life back in jail? Or are you going move forward in a
different way? That’s all about you, about what you do while
you’re incarcerated, what programs you take advantage of, what
you do to make sure that you never do this again.
N.T., 12/15/16, at 49-52.
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In the trial court’s Pa.R.A.P. 1925(a) opinion, the trial court incorporated
the above-recited portion of the sentencing hearing where it explained the
reasons for the sentence it imposed. See Trial Ct. Op., 9/14/17, at 6-7. The
court further added that, “[a]s is evident from the record, the sentence
imposed in this case was not manifestly unreasonable nor was it the product
of partiality, prejudice, bias, or ill will. Rather, it is entirely appropriate given
the violence committed by Appellant.” Id. at 8.
Here, it is clear that at the time of sentencing, the trial court considered
the presentence investigation report, the mental health report, Appellant’s
sentencing memorandum, and the Sentencing Guidelines. N.T., 12/15/16, at
49. However, the court also considered the facts and circumstances of this
case, Appellant’s prior record score, the Commonwealth’s sentencing
memorandum, and the testimony from the complainant. Id. Ultimately, the
court weighed all of those factors and found that a sentence of nine to twenty
years’ incarceration was necessary to protect the public and to “prevent this
kind of thing from happening again.” Id. at 51-52.
Therefore, the record does not support the assertion that the trial court
imposed an excessive sentence, failed to consider Appellant’s mitigating
factors and rehabilitative needs, or that it erred in imposing Appellant’s
sentences consecutively. See id. at 49-52. Accordingly, the identified claims
are frivolous as the record contains no indication the trial court abused its
discretion when sentencing Appellant.
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Lastly, our independent review of the record does not reveal any
additional, non-frivolous issues in this appeal. See Commonwealth v.
Yorgey, --- A.3d ----, 3376 EDA 2016, *5 (Pa. Super. filed May 24, 2018).
Accordingly, we grant Appellant’s counsel’s petition to withdraw and affirm the
judgment of sentence.
Petition for leave to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/18
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