Com. v. Gebhardt, T. ( 2018 )

J-S48040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS GEBHARDT :
:
Appellant : No. 125 EDA 2018
Appeal from the Judgment of Sentence November 29, 2017
in the Court of Common Pleas of Lehigh County
Criminal Division at No.: CP-39-CR-0000433-2016
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED OCTOBER 30, 2018
Appellant, Thomas Gebhardt, appeals from the judgment of sentence
imposed following his conceded violation of conditions of his parole. Appellant
challenges the court’s imposition of a consecutive sentence instead of a
concurrent one. Counsel has filed an Anders1 brief, and a petition to withdraw
from representation. Counsel’s petition to withdraw is granted. Judgment of
sentence affirmed.
The underlying facts of this case are not in dispute. Appellant conceded
that he violated the conditions of parole by, among other things, committing
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1 Anders v. California, 386 U.S. 738 (1967).
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* Retired Senior Judge assigned to the Superior Court.
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acts which resulted in his arrest on May 5, 2017. (See N.T. Gagnon II
Hearing, 11/29/17, at 2).
On appeal, the Anders brief challenges the discretionary aspects of his
sentence. Specifically, consistent with Appellant’s own statements at the
hearing, and the argument of counsel, the Anders brief challenges the trial
court’s decision to make his new sentence consecutive to a previously imposed
sentence in an unrelated matter.
At the hearing, counsel for Appellant asked the court to sentence him
concurrently to make him eligible for parole at the same time that he was
scheduled to become eligible on an unrelated felony sentence. (See N.T.
Hearing, at 7; see also Anders Brief, at 9).
Appellant also wanted to serve his sentences in county prison. He
blamed his numerous legal problems on drug addiction. He asked for
rehabilitative treatment, claiming no one had ever given him that chance.
(See N.T. Gagnon II Hearing, 11/29/17, at 2).
The trial court disputed Appellant’s claim. (“Do you know why that is?
Because you blew off your Probation Officer for about six months. That’s why
you haven’t had treatment.”). (See id. at 8). The court revoked Appellant’s
parole, and resentenced him to serve the balance of the sentence previously
imposed, consecutive to his sentence at Case No. 2954/2017. (See id. at
9). The court declined to make the sentence concurrent, explaining “If I run
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it concurrently there is no consequence for you for this case that I put you on
supervision for.” (Id.).
Nevertheless, Appellant was made eligible for parole after serving one-
third of his sentence. (See id.). Appellant was also RRRI eligible. (See id.
at 11).
Appellant filed a notice of appeal, on December 21, 2017.2 Counsel filed
a petition to withdraw on March 27, 2018. Counsel also filed an Anders brief.
The Anders brief raises two questions for our review:
A. Whether the [trial] court abused its sentencing discretion
when, after determination that [Appellant] had violated his
probation, the court sentenced him to a consecutive term of
imprisonment in a state correctional institution?
B. May appointed counsel be permitted to withdraw after a
conscientious review of the issues and the facts pursuant to the
Anders case?
(Anders Brief, at 7) (unnecessary capitalization omitted).
It is well-settled that “[w]hen considering an Anders brief, this Court
may not review the merits of the underlying issues without first passing on
the request to withdraw.” Commonwealth v. Ferguson, 761 A.2d 613, 616
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2 There is no indication in the record that counsel properly preserved the
sentencing issue at the hearing or within ten days of imposition. See
Pa.R.Crim.P. 708(E). We could find the issue waived on that basis alone.
However, in the interests of justice and judicial economy, we will address
Appellant’s sentencing issue, as raised in this appeal. Appellant filed a court-
ordered statement of errors complained of on appeal, on January 24, 2018.
The trial court filed its opinion on January 29, 2018. See Pa.R.A.P. 1925.
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(Pa. Super. 2000) (citation omitted). Therefore, we will address the second
question in the Anders brief first. Our Supreme Court has determined that:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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, counsel notes that he conducted a review of the record, and
determined that an appeal would be wholly frivolous. (See Petition to
Withdraw as Counsel, 3/27/18). In addition, counsel has provided this Court
with an Anders brief discussing the issue that could support an appeal.
Finally, counsel states that he forwarded to Appellant a copy of the brief and
advised him of his rights to raise issues himself or retain other counsel.3 (See
letter of Michael E. Brunnabend, Esq. to Thomas Gebhardt, 3/27/18).
Accordingly, on independent review, we conclude that counsel has
substantially complied with the requirements of Anders and Santiago to
withdraw as counsel. He has filed a petition to withdraw and an Anders brief,
together with accompanying documentation, and provided a copy of the brief
to Appellant along with notice of his right to raise any issues he has on his
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3 Appellant has not responded to counsel’s petition to withdraw.
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own, or to retain private counsel. Therefore, we will proceed to evaluate the
record independently in order to determine whether the appeal is in fact
frivolous.
In the first question of the Anders brief, counsel raises the issue of the
discretionary aspects of Appellant’s sentence. (See Anders Brief, at 9).
It is well-settled that appeals of discretionary aspects of a sentence are
not reviewable as a matter of right. See Commonwealth v. McNear, 852
A.2d 401, 407 (Pa. Super. 2004). Before a challenge to the sentence will be
heard on the merits, an appellant, in order to invoke the Court’s jurisdiction,
must set forth in his brief a separate and concise statement of reasons relied
upon in support of his appeal. See Pa.R.A.P. 2119(f); see also
Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa. Super. 2003), appeal
denied, 844 A.2d 551 (Pa. 2004).
Where the appellant’s Rule 2119(f) statement sufficiently articulates the
manner in which the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process, such a statement will
be deemed adequate to raise a substantial question so as to permit a grant of
allowance of appeal of the discretionary aspects of the sentence. See
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002) (plurality).
Here, counsel has included in his Anders brief a statement of reasons
relied upon in support of the request for appeal, as required by Rule 2119.
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(See Anders Brief, at 10). Accordingly, we will review the statement to
determine whether Appellant has raised a substantial question as to the
discretionary aspects of his sentence.
The Rule 2119(f) statement in the Anders brief contends that the
consecutive sentence imposed was not justified or supported “in any basis of
law or fact.” (Id.). However, aside from an expressed preference for county
prison instead of a state correctional institution, Appellant offers no support
in either law or fact for his assertion of trial court error and abuse of discretion.
(See id.). On careful review, we conclude that Appellant’s claim does not
present a substantial question for our review.
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. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010),
appeal denied, 14 A.3d 825 (Pa. 2011) (quoting Commonwealth v.
Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).
When a sentence is within the statutory limits, this Court must review
each excessiveness claim on a case-by-case basis. In order for an appellant
raising such a claim to state a substantial question, he must “sufficiently
articulate[ ] the manner in which the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
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particular fundamental norm underlying the sentencing process.”4 Mouzon,
supra at 627.
Here, Appellant’s Rule 2119(f) statement fails to identify any provision
of the Sentencing Code which the trial court violated or to set forth any
fundamental norm of the sentencing process that the trial court purportedly
violated. Thus Appellant has failed to raise a substantial question that his
sentence was excessive. Consequently, a review of the merits of his challenge
to discretionary aspects of his sentence is unwarranted.
On independent review, we find no other non-frivolous issues, which
would warrant a review of their merits. Accordingly, the petition for leave to
withdraw as counsel is granted, and the trial court’s judgment of sentence is
affirmed.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
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4An appellant’s contention that the trial court did not adequately consider a
mitigating circumstance when imposing sentence does not raise a substantial
question sufficient to justify appellate review of the merits of such claim. See
Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999), appeal
denied, 747 A.2d 366 (Pa. 1999).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/18
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