Com. v. Ortiz, L. ( 2017 )

J-S64034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LUIS ORTIZ
Appellant No. 158 MDA 2017
Appeal from the Judgment of Sentence January 5, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
CP-40-CR-0000865-2016,
CP-40-CR-0000866-2016, CP-40-CR-0000867-2016,
CP-40-CR-0004303-2015
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 13, 2017
Appellant, Luis Ortiz, appeals from the judgment of sentence entered
in the Luzerne County Court of Common Pleas. His attorney, Amanda M.
Young, Esq. (“Counsel”), has filed an Anders1 petition for leave to withdraw.
Counsel identifies the following issue on appeal: (1) whether the court
imposed a harsh and excessive sentence. We grant Counsel’s petition to
withdraw and affirm.
The trial court summarized the facts and procedural posture of this
case as follows:
* Former Justice specially assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
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[Appellant] pled guilty to various charges as follows: On
October 11, 2016, [Appellant] pled guilty on Information
Number 430[3] of 2015 to Count 1, Indecent
Assault─Person less than thirteen (13) years of age: 18
[Pa.C.S. § 3126(a)(7)], graded as a felony of the third
degree (F3), and on Count 2, Corruption of
Minors─Defendant age eighteen (18) or above: 18 [Pa.C.S.
§ 6301(a)(1)(ii)], graded as a felony of the third degree
(F3).
On October 11, 2016, [Appellant] pled guilty on
information Number 865 of 2016 to Count 1, Corruption of
Minors─Defendant age eighteen (18) or above: 18 [Pa.C.S.
§ 6301(a)(1)(ii)], graded as a felony of the third degree
(F3), and on Count 2, Indecent Exposure: 18 [Pa.C.S. §
3127(a)], graded as a misdemeanor of the first degree
(M1).
On October 11, 2016, [Appellant] pled guilty on
Information Number 866 of 2016 to Count 1, Indecent
Assault─Person Less than sixteen (16) years of age: 18
[Pa.C.S. § 3126 (a)(8)], graded as a misdemeanor of the
second degree (M2). Lastly, on October 11, 2016,
[Appellant] pled guilty on number 867 of 2016 to Count 1,
Aggravated Indecent Assault─Less than sixteen (16) years
of age: 18 [Pa.C.S. 3125(a)(8)], graded as a felony of the
second degree (F2).
* * *
Aggregate Sentence: Seventy-eight (78) to one
hundred fifty-six (156) months followed by two (2)
years’ probation.
On January 10, 2017, [Appellant] filed a Motion for
Reconsideration and on January 19, 2017, [he] also filed a
Notice of Appeal. The Reconsideration of Sentence filed by
[Appellant] was denied on January 23, 2012.[2]
2 See Pa.R.A.P. 905(a)(5) which provides: “A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”
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On January 26, 2017, an order was issued directing
[Appellant] to fie of record a Concise Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) . .
..
Trial Ct. Op., 6/20/17, at 1-3.3 On February 15, 2017, Appellant filed a
Motion for Extension of Time to File Concise Statement of Matters
Complained of on Appeal. On February 16, 2017, the court entered an order
granting Counsel for Appellant “an extension of 30 days after receipt of all
ordered transcripts . . . within which to file” a Rule 1925(b) statement. On
April 5, 2017, Counsel for Appellant filed a notice of intent to file an Anders
Brief.
Counsel identifies the following issue in the Anders brief: “Whether
the imposition of a 78 to 156 month sentence to run [sic] is harsh and
excessive when [Appellant] took responsibility by pleading guilty and this is
his first offense.” Anders Brief at 1.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d
379, 382 (Pa. Super. 2008).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
3 See id. at 2 (specifying individual sentences received for each
information).
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[Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)].
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 also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his 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. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted).4
If counsel complies with these requirements, “we will make a full
examination of the proceedings in the lower court and render an
4 Our Supreme Court in Santiago “emphasized the difference between an
Anders brief, which offers an issue for a court’s consideration, but reflects
counsel’s candid assessment of the complete lack of merit in his client’s
case, and a merits brief, which implies that an issue is worthy of review and
has some chance of succeeding.” Santiago, 978 A.2d at 359-60.
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independent judgment [as to] whether the appeal is in fact ‘frivolous.’” Id.
at 882 n.7 (citation omitted).
Instantly, Counsel provided a factual summary of the case with
citations to the record. Anders Brief at 1-3. Counsel explained the relevant
law and discussed why Appellant’s claim is meritless, and noted that she
found nothing in the record that could arguably support the appeal. Id. at
3-5. In conclusion, Counsel’s Anders brief stated: “Counsel for [Appellant]
has made a conscientious review of the record, believes that this appeal is
wholly frivolous, and requests permission to withdraw.” Id. at 5.
Counsel also provided Appellant with a copy of the Anders brief and a
letter advising Appellant of his rights. Counsel’s Mot. to Withdraw, 8/10/17.
In light of the foregoing, we hold Counsel has complied with the
requirements of Santiago. See Orellana, 86 A.3d at 879-80. Appellant
has not filed a pro se or counseled brief. We now examine the record to
determine whether the issue on appeal is wholly frivolous. See id. at 882
n.7.
In the Anders brief, Appellant “asserts that his aggregate sentence of
a minimum 78 to a maximum 156 months[’] incarceration is excessive
because he accepted responsibility by pleading guilty and had a zero prior
record score.” Anders Brief at 3.
Our review is governed by the following principles:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
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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.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted).
“The right to appeal the discretionary aspects of a sentence is not
absolute.” Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super.
2008).
This Court may only reach the merits of an appeal
challenging the discretionary aspects of sentence where it
appears that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing
Code. A substantial question will be found where the
defendant advances a colorable argument that the
sentence imposed is either inconsistent with a specific
provision of the code or is contrary to the fundamental
norms which underlie the sentencing process.
Id. (quotation marks and citation omitted). In addition, Pennsylvania Rule
of Appellate Procedure 2119(f) requires that “[a]n appellant who challenges
the discretionary aspects of a sentence in a criminal matter shall set forth in
his brief a concise statement of the reasons relied upon for allowances of
appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P.
2119(f); see also Booze, 936 A.2d at 1278.
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Counsel’s Anders brief contains a statement of reasons for allowance
of appeal. Anders Brief at 10. In Commonwealth v. Lilley, 978 A.2d 995(Pa. Super. 2009), this court opined:
The Anders brief challenges discretionary aspects of
[the a]ppellant’s sentence. [The a]ppellant was required
to “set forth in his brief a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
The concise statement must specify where the
sentence falls in relation to the sentencing guidelines
and what particular provision of the code it violates.
Additionally, the statement must specify what
fundamental norm the sentence violates and the
manner in which it violates that norm. If the
statement meets these requirements, we can decide
whether a substantial question exists.
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.
Super. 2004) (internal quotations and citations omitted).
[The a]ppellant’s Pa.R.A.P. 2119(f) statement fails to cite
what particular provision of the code or what specific
fundamental norm [the a]ppellant’s sentence allegedly
violates.
Nevertheless, in light of Counsel’s petition to withdraw,
we address [the a]ppellant’s contention. See
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.
Super. 2001) (concluding that Anders requires review of
issues otherwise waived on appeal).
Id. at 998.
In the instant case, Appellant’s Rule 2119(f) statement fails to cite the
provision or the code or fundamental norm the sentence allegedly violates.
See id. We will review the issue nonetheless. See id. This Court has
stated:
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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.
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted).
In making a reasonableness determination, a court should consider
four factors:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d)(1)-(4).
[W]hile a sentence may be found to be unreasonable after
review of Section 9781(d)’s four statutory factors, in
addition a sentence may also be unreasonable if the
appellate court finds that the sentence was imposed
without express or implicit consideration by the sentencing
court of the general standards applicable to sentencing
found in Section 9721, i.e., the protection of the public;
the gravity of the offense in relation to the impact on the
victim and the community; and the rehabilitative needs of
the defendant. 42 Pa.C.S. § 9721(b). Moreover, even
though the unreasonableness inquiry lacks precise
boundaries, we are confident that rejection of a sentencing
court’s imposition of sentence on unreasonableness
grounds would occur infrequently, whether the sentence is
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above or below the guideline ranges, especially when the
unreasonableness inquiry is conducted using the proper
standard of review.
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
In Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011), this
Court held:
[W]here the sentencing court imposed a standard-range
sentence with the benefit of a pre-sentence report [“PSI”],
we will not consider the sentence excessive. In those
circumstances, we can assume the sentencing court was
aware of relevant information regarding the defendant’s
character and weighed those considerations along with
mitigating statutory factors.
Id. at 298 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988)) (quotation marks omitted); see also Commonwealth v. Moury,
992 A.2d 162, 171 (Pa. Super. 2010) (stating “where a sentence is within
the standard range of the guidelines, Pennsylvania law views the sentence
as appropriate under the Sentencing Code”).
At the guilty plea hearing, Appellant pled guilty to the following:
[The Commonwealth:] First on 4303 of 2015, in March of
2015, a forensic interview was conducted on a minor child
with the initials E.A., her date of birth is May 11th, 2006.
At that time it was determined that between January of
2011 and January of 2012, her sister’s boyfriend,
[Appellant], had forced her to have sexual contact with
him on multiple occasions.
On 865 of 2016, on November 17th of 2015, a forensic
interview was conducted on . . . a minor female [sic]
initials A.Z., date of birth October 10th, 2000, and it was
determined that between June and July of . . . 2014,
[Appellant] had exposed himself to the minor child and had
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rubbed her back and tried to initiate sexual intercourse
with her.
On 866 of 2016, on November 23rd, of 2015, an
interview was conducted at The Child Advocacy Center
with a minor female with the initials A.N., date of birth
2/13/2001. A.N. is intellectually delayed, and it was
determined at that time that [Appellant] had
inappropriately forced her to touch his genitals and had
touched her genitals between June of 201[5] and August
of 201[5].
Finally, on 867 of 2016, on November 17th of 2015,
F.N., a minor female with the date of birth of October 13,
1999, who is the sister of A.N., did inform The Child
Advocacy Center that between December of 2013 and
January of 2014, [Appellant] had used his fingers to
digitally penetrate her without her consent and she was
under 16 at the time.
The Court: did you hear those facts, sir, on each of those
cases?
[Appellant:] Yes, ma’am.
The Court: Are you pleading guilty to those facts?
[Appellant:] Yes, ma’am.
N.T. Guilty Plea Hr’g, 10/11/16, at 10-12.
Instantly, the trial court opined:
In the case at bar, the record clearly illustrates that the
trial court had benefit of a PSI, while also taking into
consideration the age of the victims, the fact that the
crimes range from aggravated indecent assault to indecent
exposure, the randomness of the sexual assaults, and the
impact that it has had on every victim involved. The
record also clearly illustrates that the trial court sentenced
[Appellant] within the standard range of the guidelines.
* * *
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The court reviewed the transcripts, relevant law, oral
colloquies, the PSI, th[e] facts that formed the basis of the
guilty plea, and sentenced [Appellant] within statutory
guidelines. Here the Sentencing Court clearly and
expressly complied with the requirements of 42 Pa.C.S. §
9721(b) by imposing a sentence [“]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 [Appellant.]”
Id.
Trial Ct. Op. at 4, 7.
We discern no abuse of discretion in the trial court’s conclusions. See
Sheller, 961 A.2d at 190. The court considered the factors in Section
9721(b). See Walls, 926 A.2d at 964. The court imposed a standard-range
sentence with the benefit of a PSI. Therefore, Appellant’s sentence of
seventy-eight to one hundred fifty-six months’ incarceration, followed by two
years’ probation, was not manifestly excessive. See Corley, 31 A.3d at
298; Moury, 992 A.2d at 171.
A review of the record reveals no other meritorious issue that could
provide relief.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
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