Com. v. House, J. ( 2014 )

J-S62011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUAN CARLOS HOUSE,
Appellant No. 2203 AND 2205 EDA
2013
Appeal from the Judgment of Sentence entered July 2, 2013,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0002557-2010
and CP-23-CR-0005041-2010
BEFORE: ALLEN, OLSON, and OTT, JJ.
MEMORANDUM BY ALLEN, J.: FILED OCTOBER 07, 2014
sentence imposed after the trial court revoked his probation at Docket No.
2557-2010 and Docket No. 5041-
to withdraw, citing Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). We affirm the
The pertinent facts and procedural history are as follows:
Docket No. 2557-2010: On December 12, 2009, a 14-year-old
female victim contacted police and reported that an unidentified man had
indecently exposed himself to her at a movie theatre. On February 28,
2010, the victim again encountered Appellant in the vicinity of the movie
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theatre, and immediately recognized him as the same man who had exposed
himself to her. Affidavit of Probable Cause, 3/1/10. The victim alerted
police and Appellant was arrested and charged with indecent exposure. On
June 22, 2010, the trial court sentenced Appellant to a term of imprisonment
of time served to 23 months plus a consecutive three years of probation.
detention after he was arrested for retail theft at Docket No. 5041-2010 (see
below). Following a revocation hearing, Appellant was sentenced on
November 15, 2010 to serve 513 days of back time, plus a consecutive 3
years of probation. The judgment of sentence was subsequently amended
to reflect back time of 482 days plus credit for time served.
Docket No. 5041-2010: On August 5, 2010, officers from the
Sharon Hill Police Department received a report of retail theft at the Acme
Market. Following an investigation, Appellant was arrested and subsequently
charged with retail theft at Docket No. 5041-2010. On November 15, 2010,
Appellant pled guilty, and that same day, the trial court sentenced him to 3
years of probation.
On September 11, 2012, bench warrants for
issued at both Docket No. 2557-2010 and Docket No. 5041-2010, on the
basis that Appellant had violated the conditions of his probation when he
was arrested on September 10, 2012 for issuing bad checks. Following a
probation revocation hearing on July 2, 2013, at which Appellant proceeded
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pro se, the trial court sentenced Appellant to 18 to 36 months of
imprisonment for indecent exposure, with 41 days of credit for time served,
and a concurrent 18 to 36 months of imprisonment for retail theft, with 41
days of credit for time served.
Appellant filed a pro se motion for reconsideration on July 11, 2013,
and on July 15, 2013, the trial court entered an order amending the
judgment of sentence to award Appellant credit for 110 days of time served.
Appellant filed a notice of appeal on July 31, 2013, and the trial court
directed Appellant to file a concise statement of errors complained of on
counsel filed a notice of intent to file an Anders brief pursuant to Pa.R.A.P.
1925(c)(4), and on October 1, 2013, the trial court entered a Pa.R.A.P.
1925(a) opinion.
Appellant presents the following issue for our review:
The sentence was harsh and excessive under the
circumstances and was pronounced with insufficient reasons
placed on the record.
Brief at 5.
pursuant to Anders and its Pennsylvania counterpart, McClendon. See
Anders, 386 U.S. 738; McClendon, 434 A.2d at 1187. Where an
Anders/McClendon brief has been presented, our standard of review
requires counsel seeking permission to withdraw pursuant to Anders to:
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(1) petition the court for leave to withdraw stating that after making a
conscientious examination of the record it has been determined that the
appeal would be frivolous; (2) file a brief referring to anything that might
or amicus curiae brief; and (3) furnish a copy of the brief to the defendant
and advise him of his right to retain new counsel or raise any additional
points that he deems worthy of the court's attention. Commonwealth v.
McBride, 957 A.2d 752, 756 (Pa. Super. 2008). Counsel is required to
submit to
appellant of the rights associated with the Anders
Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007).
Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),
a Anders brief the reasons for
concluding that the appeal is frivolous. If these requirements are met, this
Court may then review the record to determine whether we agree with
olous.
notified Appellant of his intent to file an Anders brief and petition to
withdraw with this Court, and informed Appellant of his rights to retain new
counsel and raise addition
filed an appropriate petition seeking leave to withdraw. Additionally,
Anders brief to this Court, with a copy
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provided to Appellant. Accordingly, the technical requirements of Anders
have been met. We will therefore conduct an independent examination of
the issue in the Anders brief to determine if it is frivolous and whether
counsel should be permitted to withdraw.
Appellant asserts that his sentence was harsh and excessive and that
the trial court failed to state sufficient reasons on the record for its sentence.
Anders Brief at 11-12. Such a challenge to the discretionary aspects of a
sentence is not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v.
Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004).
Before we reach the merits of this [issue], we must engage in a
four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant'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 sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Here, Appellant preserved his claim by filing a post-sentence motion
and a timely notice of appeal. Appellant has additionally included in his brief
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a concise statement pursuant to Pa.R.A.P. 2119(f). See Anders Brief at 9-
10. We therefore proceed to determine whether Appellant has raised a
substantial question for our review.
not examine the merits of whether the sentence is actually excessive.
Rather, we look to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question determination does
not require the court to decide the merits of whether the sentence is clearly
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.
Super. 2013). Here, Appellant claims that the trial court failed to consider
imposing a lesser sentence such as partial confinement, rather than a
sentence of total confinement. Appellant asserts that the court failed to
appropriately consider mitigating facts of record and impose a less restrictive
sentence. Anders Brief at 8-12. This assertion does not constitute a
substantial question for our review. See Commonwealth v. Buterbaugh,
(mere assertion that the trial court failed to consider mitigating facts of
is without merit because it fails to raise a substantial question. Moreover, in
accordance with Anders, we have independently examined the record, and
discern no other claims, not advanced by counsel, which pertain to the
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ial
question for appellate review.
In addition to the Anders brief filed by counsel, Appellant has filed
examining most non-Anders cases, this Court will not review pro se briefs
or filings by appellants who have the benefit of counsel. Commonwealth v.
Nischan, 928 A.2d 349, 353 (Pa. Super. 2007). However, as we explained
in Nischan, after counsel files the Anders brief, an appellant may file a pro
se brief, and when conducting an Anders review, this Court will consider not
only the brief filed by counsel but also any pro se appellate brief to
frivolous. Nischan, 928 A.2d at 353-354; see also Commonwealth v.
Baney, 860 A.2d 127 (Pa. Super. 2004). Because Appellant has submitted
a pro se Anders brief, we will review it.
pro se
the following issues:
1. Whether the sentence of 18 to 26 months imposed
the Double Jeopardy Clause?
2. Whether the trial court failed to consider the sentencing
guidelines when it imposed a sentence of 18 to 26
months of total confinement following the revocation of
3. Whether the sentence imposed following revocation of
right according to Alleyne v. United States, U.S.
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sentence beyond the statutory maximum without the
underlying factors having been submitted to a jury?
Letter Response to Anders Brief, 8/11/14.
In his first issue, Appellant argues that the trial court violated the
Double Jeopardy Clause when it sentenced him to 18 - 36 months of
imprisonment at Docket No. 2557-2010 following the revocation of his
accused twice for the same Commonwealth v. Higginbottom,
678 A.2d 408, 411 (Pa. Super. 1996). Appellant claims that following
revocation of his probation, the trial court violated the Double Jeopardy
Clause when it resentenced him at Docket No. 2557-2010, because he had
already completed his original sentence. Upon review, we conclude that the
probation and resentenced him to 18 - 36 months of imprisonment.
The record reveals that at Docket No. 2557-2010, Appellant was
originally sentenced to a term of imprisonment of time served to 23 months
plus a consecutive 3 years of probation. After Appellant was released on
probation, his probation was revoked following his Docket No. 5041-2010
arrest and conviction for retail theft, and he was resentenced on November
15, 2010 to serve 482 days of back time plus a consecutive 3 years of
probation. Appellant was subsequently released on probation once again,
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but prior to the completion of his probationary term, he was arrested for
issuing bad checks, resulting in the instant revocation proceedings, following
which he was resentenced to 18 - 36 months imprisonment. Thus, contrary
to App
Docket No. 2557-2010 at the time he was re-sentenced on July 2, 2013, the
record reflects that he was still serving his original probationary sentence at
that time. We conclude therefore that the trial court did not violate
18 - 36 months imprisonment. See Commonwealth v. Vivian, 231 A.2d
301,
clearly has the right to later modify the order of probation if the terms
thereof are violated or conditions thereof are not met, and if this occurs, this
does not constitute double jeop Commonwealth v. Colding, 393
revocation and the imposition of a term of imprisonment upon a breach of its
Commonwealth v. White, 400 A.2d 194, 196 (Pa. Super.
1979) (double jeopardy protections are not violated where a defendant is re-
sentenced following a violation of the terms of probation because the initial
ence which is increased by the subsequent
re-sentence).
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address them together. Appellant argues that at Docket No 2557-2010,
following revocation of his probation, the trial court improperly imposed a
sentence in excess of the sentencing guidelines. Appellant additionally
argues that in imposing a sentence in excess of the sentencing guidelines,
the trial court effectively enhanced his sentence based on factors which were
not submitted to a jury, in violation of Alleyne v. United States, U.S.
, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).
utilized in determining the length of sentences imposed following a
Commonwealth v. Williams, 69 A.3d 735, 751
(Pa. Super. 2013); see also Commonwealth v. Ferguson, 893 A.2d 735,
imposed following a revocation of probation); Commonwealth v.
Coolbaugh
well settled that [t]he sentencing guidelines do not apply to sentences
failed to sentence him in accordance with the sentencing guidelines is
without merit.
guidelines does not implicate Alleyne
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Sentencing Guidelines are purely advisory in nature [and] do not alter the
legal rights or duties of the defendant, the prosecutor or the sentencing
court, [but] are merely one factor among many that the court must consider
Commonwealth v. Yuhasz, 923 A.2d 1111, 1118
(Pa. 2007). In contrast, Alleyne fact that, by law,
Alleyne v. United States,
133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 (2013). Because the sentencing
guidelines, wh
Alleyne is inapposite. See e.g. United States v. Robinson, 556
Alleyne, the Supreme Court held that a
fact that increases a mandatory minimum sentence must be submitted to
the jury and be found beyond a reasonable doubt. That ruling does not
mean that any fact that influences judicial discretion must be found by a jury
[such that] the District Court retained the ability to make factual findings
necessar
United States v. Freeman, 09-2166, 2014 WL 4056553 (3d Cir.
applying the Guidelines, which influence the sentencing judge's discretion in
imposing an advisory Guidelines sentence and do not result in imposition of
a mandatory minimum sentence, do not violate the rule in Alleyne
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-2010,
a first-degree misdemeanor, carried a maximum penalty of five years of
incarceration. His sentence of 18 - 36 months of imprisonment fell within
the statutory maximum. See 18 Pa.C.S.A. § 3127(b); 18 Pa.C.S.A. § 1104.
Having conducted an independent review of the record, we discern no non-
sentence, or any other issues meriting appellate review. See
Commonwealth v. Cartrette, 83 A.3d 1030, 1038 (Pa. Super. 2013).
Therefore, we affirm the
to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Ott joins the disposition.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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