Com. v. Holmes, K. ( 2017 )

J-S65038-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
KARIM ALI HOLMES, :
:
Appellant : No. 1590 EDA 2017
Appeal from the Judgment of Sentence March 30, 2017
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0004515-2009
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 21, 2017
Karim Ali Holmes (“Holmes”) appeals from the judgment of sentence
imposed following the revocation of his probation. Additionally, J. Anthony
Foltz, Esquire (“Attorney Foltz”), has filed an Application to Withdraw as
counsel, and an accompanying brief pursuant to Anders v. California, 386
U.S. 738 (1967). We grant Attorney Foltz’s Application to Withdraw, and
affirm Holmes’s judgment of sentence.
On September 27, 2011, Holmes entered a negotiated guilty plea to
possession with intent to deliver and persons not to possess firearms. The
trial court sentenced Holmes to an aggregate term of 26 to 52 months in
prison, followed by 2 years of probation.
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Holmes was subsequently convicted of attempted murder.1 The trial
court conducted a Gagnon II2 hearing on March 30, 2017, during which
Holmes stipulated that he was in violation of his probation. The trial court
sentenced Holmes to a term of 2 to 4 years in prison, to run consecutive to
the sentence imposed for the attempted murder conviction.
Holmes filed a Motion for Reconsideration, which the trial court denied.
Holmes subsequently filed a timely Notice of Appeal. On May 5, 2017, the
trial court ordered Holmes to file a Pa.R.A.P. 1925(b) concise statement of
matters complained of on appeal. In lieu of filing a concise statement,
Attorney Foltz filed a Statement of his intention to file an Anders brief.
Attorney Foltz subsequently filed an Application to Withdraw as counsel.
We must first determine whether Attorney Foltz has complied with the
dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc) (stating that “[w]hen 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.”) (citation omitted). Pursuant to
Anders, when an attorney believes that an appeal is frivolous and wishes to
withdraw as counsel, he or she must
1 Holmes also filed an appeal from the judgment of sentence imposed for his
attempted murder conviction, which is docketed at No. 26 EDA 2017.
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the [appellate] court.
Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Foltz has complied with the requirements set forth in
Anders by indicating that he made a thorough review of the record and
determined that an appeal would be frivolous. Further, the record contains a
copy of the letter that Attorney Foltz sent to Holmes, informing him of Attorney
Foltz’s intention to withdraw and advising him of his rights to proceed pro se,
retain counsel, and file additional claims. Finally, Attorney Foltz’s Anders
Brief meets the standards set forth in Santiago. Because Attorney Foltz has
complied with the procedural requirements for withdrawing from
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representation, we will independently review the record to determine whether
Holmes’s appeal is, in fact, wholly frivolous.
In the Anders Brief, the following question is presented for our review:
“Did the trial court err in imposing a severe sentence and denying a Motion
for Reconsideration of the sentence by … Holmes?” Anders Brief at 5.3
Holmes argues that he “deserved a certain degree of lenity in his
sentence for probation violation,” and that the trial court erred by ordering his
sentence to run consecutive to the sentence imposed for his conviction of
attempted murder. Id. at 8. Holmes points out that he is gainfully employed
and is a responsible parent who supports his daughter. Id. Holmes also
claims that a more lenient sentence is appropriate in light of the severity of
the sentence he received for his conviction of attempted murder. Id.
Holmes’s claim implicates the discretionary aspects of his sentence
following the revocation of his probation. “Challenges to the discretionary
aspects of sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether the
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 the appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
3 Holmes did not file a separate pro se brief, nor did he retain alternate counsel
for this appeal.
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question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. (quotation marks and some citations omitted).
In the instant case, Holmes filed a timely Notice of Appeal and preserved
his claim in his Motion for Reconsideration. Although we note the absence of
the requisite Pa.R.A.P. 2119(f) statement in the Anders Brief, “[w]here
counsel files an Anders brief, this Court has reviewed the matter even absent
a separate Pa.R.A.P. 2119(f) statement. Hence, we do not consider counsel’s
failure to submit a Rule 2119(f) statement as precluding review of whether
[Holmes’s] issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656,
661 (Pa. Super. 2015) (citations omitted).
Holmes argues that the trial court erred in directing his “severe”
sentence to run consecutive to the sentence imposed for the underlying
attempted murder conviction, and by failing to consider certain mitigating
factors. Anders Brief at 5, 8. Holmes’s claim raises a substantial question.
See Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015)
(concluding that a “challenge to the imposition of [] consecutive sentences as
unduly excessive, together with [a] claim that the court failed to consider []
rehabilitative needs and mitigating factors upon fashioning its sentence,
presents a substantial question.”). Thus, we will consider the merits of
Holmes’s claim.
Our standard of review is well-settled:
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The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).
The reason for this broad discretion and deferential standard
of appellate review is that the sentencing court is in the best
position to measure various factors and determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it. Simply stated, the sentencing
court sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
The sentencing court’s institutional advantage is, perhaps,
more pronounced in fashioning a sentence following the revocation
of probation, which is qualitatively different than an initial
sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
appears before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
when an initial sentence is imposed, the Sentencing Guidelines do
not apply, and the revocation court is not cabined by Section
9721(b)’s requirement 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.” 42 Pa.C.S.A. § 9721.
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and
quotation marks omitted).
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Upon revocation of probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original sentence,
including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(1) the
defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned; or (3) such a sentence is essential to vindicate the authority
of the court.” Id. § 9771(c).
Moreover, “[i]n every case in which the court … resentences an offender
following revocation of probation, … the court shall make as 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.” Id. § 9721(b); see also Pa.R.Crim.P.
708(D)(2) (providing that “[t]he judge shall state on the record the reasons
for the sentence imposed.”). However, following revocation of probation, a
sentencing court need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statutes in question. See
Pasture, 107 A.3d at 28 (stating that “since the defendant has previously
appeared before the sentencing court, the stated reasons for a revocation
sentence need not be as elaborate as that which is required at initial
sentencing.”).
Here, the trial court sentenced Holmes to 2 for 4 years in prison
following the revocation of his probation. Holmes’s post-revocation sentence
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is within statutory bounds,4 and is based on a new criminal charge. See 42
Pa.C.S.A. § 9771(b), (c). Moreover, during the Gagnon II hearing, Holmes’s
counsel informed the court that Holmes had nearly completed his term of
probation at the time of the offense giving rise to the revocation of probation;
he had a job; and he has a four-year-old child. See N.T., 3/30/17, at 5.
Holmes’s counsel also argued that Holmes was not “consistently violating” his
probation. See id. Further, the trial court noted the seriousness of the new
criminal charge and the victim’s injuries, stating that “[i]t’s a nasty crime, and
you got to pay something for it.” Id. at 6.
Based upon the foregoing, we conclude that Holmes’s post-revocation
sentence of 2 to 4 years in prison is not manifestly excessive, and “the court
was free to impose the sentence consecutively to his other sentences for the
crimes he committed while on probation.” Swope, 123 A.3d at 341.
Discerning no abuse of discretion by the trial court, we will not disrupt
Holmes’s sentence on appeal.
Finally, our independent review discloses no other non-frivolous claims
that Holmes could raise on appeal. Accordingly, we grant Attorney Foltz’s
Application to Withdraw, and affirm Holmes’s judgment of sentence.
Application to Withdraw granted. Judgment of sentence affirmed.
4 As an ungraded felony, possession with intent to deliver carries a maximum
sentence of 7 years in prison. See 18 Pa.C.S.A. § 106(b)(5) (providing that
“[a] crime declared to be a felony, without specification of degree, is of the
third degree.”); see also 42 Pa.C.S.A. § 1103(3) (providing that, for a third-
degree felony, the maximum sentence is 7 years in prison).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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