Com. v. Vanderpool, H., Jr. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
HARRY JAMES VANDERPOOL, JR. :
: No. 1346 MDA 2017
Appellant :
Appeal from the Judgment of Sentence July 31, 2017
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000150-2017
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
HARRY JAMES VANDERPOOL, JR. :
: No. 1347 MDA 2017
Appellant :
Appeal from the Judgment of Sentence July 31, 2017
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000131-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 03, 2018
Harry James Vanderpool, Jr., appeals from the judgment of sentence,
entered in the Court of Common Pleas of Bradford County, following his guilty
plea to two counts of theft by unlawful taking and one count of defiant
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trespass.1 Counsel has also filed a motion to withdraw pursuant to Anders.2
After review, we affirm and grant counsel’s motion for withdrawal.
On June 1, 2017, Vanderpool entered an open guilty plea to theft by
unlawful taking graded as a misdemeanor of the first degree, and on July 31,
2017, the trial court sentenced him to 12 to 36 months’ incarceration. The
same day, Vanderpool entered an open guilty plea to a separate charge of
theft by unlawful taking and defiant trespass.3 The trial court sentenced
Vanderpool to an additional 12 to 36 months’ incarceration to run
consecutively to his June 1, 2017 guilty plea sentence. Vanderpool filed a
timely post-sentence motion for reconsideration of sentence,4 which the trial
court denied on August 11, 2017.
Vanderpool timely appealed, and both he and the trial court have
complied with Pa.R.A.P. 1925.5 On appeal, Vanderpool raises one issue for
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1 18 Pa.C.S.A. § 3901 and 18 Pa.C.S.A. § 3503(b), respectively.
2.Anders v. California, 368 U.S. 738 (1967).
3On September 9, 2017, this Court consolidated these matters sua sponte
pursuant to Pa.R.A.P. 513.
4 Vanderpool entered open guilty pleas, and thus, he did not waive his right
to file a motion for reconsideration of sentence. See Commonwealth v.
Coles, 530 A.2d 453, 457 (Pa. Super. 1983) (where plea agreement is open
one, as opposed to one for negotiated sentence, defendant can properly
request reconsideration of sentence after sentencing, as court alone decides
sentence, and no bargain for stated term, agreed upon by defendant and
prosecution, is involved).
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our review: “Was the sentence imposed . . . excessive in light of
[Vanderpool’s] circumstances, particularly with regard to [his] treatment and
rehabilitative needs?” Anders Brief, at 3.
Preliminarily, we address counsel’s motion to withdraw. To obtain
permission to withdraw, counsel must file an Anders brief that meets the
requirements established by our 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 reasonably believes 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 statuses on point that have led to the conclusion
that the appeal is frivolous.
Id. at 361. Counsel must provide the appellant with a copy of the Anders
brief along with a letter that advises the appellant of his or her 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. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).
Substantial compliance with these requirements is sufficient.
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5 Vanderpool’s counsel initially filed an Anders brief that did not fully comply
with the dictates of Anders and Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009). Consequently, on May 2, 2018, we remanded this case with
instructions for counsel to file a compliant motion to withdraw together with
an Anders brief or an advocate’s brief on behalf of Vanderpool. On June 20,
2018, counsel filed a petition to withdraw and an Anders brief. Having
retained jurisdiction, we now revisit Vanderpool’s appeal.
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Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007). “After
establishing that the antecedent requirements have been met, this Court must
then make an independent evaluation of the record to determine whether the
appeal is, in fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d
1244, 1246 (Pa. Super. 2006).
Here, our review of the record reveals counsel has complied with the
requirements for withdrawal outlined in Anders, and its progeny. Notably,
counsel has completed the following: (1) he filed a petition for leave to
withdraw, in which he states he has made a conscientious examination of the
record and concludes Vanderpool’s appeal is wholly frivolous; (2) he filed an
Anders brief pursuant to the dictates of Santiago; (3) he furnished a copy
of the Anders brief to Vanderpool; and (4) he advised Vanderpool of his right
to retain new counsel or proceed pro se. Commonwealth v. Catrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Therefore, we “proceed to an
independent evaluation of the record in order to determine the accuracy of
counsel’s averment that the instant appeal is frivolous.” Palm, 903 A.2d at
1246.
Vanderpool baldly asserts that his sentence was excessive and that the
sentencing court did not consider his circumstances. Specifically, Vanderpool
argues that the sentencing court ignored the deteriorating health condition of
his ailing mother, whom he wished to care for.
Our standard of review in discretionary aspects of sentencing claims is
well settled:
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The proper standard of review when considering whether to affirm
the sentencing court’s determination is an abuse of discretion. . .
. An abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
In more expansive terms, our Court recently offered: An abuse
of discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010)
(brackets omitted), quoting Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right. Id. at 170. Prior to reaching the merits of a
discretionary sentencing issue,
[this Court conducts] a four part analysis to determine: (1)
whether appellant has filed at 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 appellant’s brief
has a fatal defect, [see] Pa.R.A.P. 2219(f); and (4) whether there
is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. §
9781(b).
Id. (citation omitted).
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If the sentence imposed falls within the sentencing guidelines, no
substantial question exists as to whether the sentence is appropriate under
the Sentencing Code.6 Commonwealth v. Maneval, 688 A.2d 1198 (Pa.
Super. 1997). Furthermore, a sentencing court has discretion to impose
sentences consecutively or concurrently and, ordinarily, a challenge to this
exercise of discretion does not raise a substantial question as to the
appropriateness of sentence, for purposes of determining whether
discretionary aspects of sentence may be appealed. Moury, 992 A.2d at 171.
An allegation that the sentencing court failed to consider mitigating
factors generally does not raise a substantial question for review on appeal.
Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010). Where
the sentencing court had the benefit of a pre-sentence investigation report,
we may assume that the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors. Id. at 919.
Instantly, Vanderpool’s aggregate sentence of 24 to 60 months’
imprisonment was the minimum the trial court could impose and falls within
the sentencing guidelines. That his two sentences run consecutive to one
another is inconsequential. Moury, supra. Furthermore, the record belies
Vanderpool’s assertion that the trial court did not consider his circumstances;
the trial court had the benefit of a PSI. Rhoades, supra. Therefore, we find
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6 42 Pa.C.S.A. §§ 9701-9799.75.
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Vanderpool has not raised a substantial question permitting us to review his
discretionary aspects of sentence claim. Accordingly, we affirm Vanderpool’s
judgment of sentence and we grant counsel’s motion for withdrawal. See
Commonwealth v. Ladamus, 896 A.2d 592, 596 (Pa. Super. 2006) (since
defendant failed to raise substantial question that sentence was excessive as
to permit appellate review of discretionary aspects of sentence, review of
merits of challenge to discretionary aspects of sentence was unwarranted and
defense counsel would be permitted to withdraw).
Judgment of sentence affirmed. Motion for withdrawal granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2018
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