Com. v. Ruiz, N. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATASHA RUIZ
Appellant No. 783 WDA 2014
Appeal from the Judgment of Sentence April 8, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000692-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 24, 2014
Appellant, Natasha Ruiz, appeals from the judgment of sentence
entered in the Erie County Court of Common Pleas, following her jury trial
convictions for simple assault, recklessly endangering another person
(“REAP”), harassment, and criminal mischief.1 We affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this appeal are as follows.
Appellant engaged in a physical altercation with another woman on January
30, 2013. During the fight, a one-year-old bystander suffered minor
injuries. On February 12, 2014, a jury convicted Appellant of simple assault,
REAP, harassment, and criminal mischief.
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1
18 Pa.C.S.A. §§ 2701, 2705, 2709, 3304, respectively.
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On April 8, 2014, the court sentenced Appellant to ten (10) days to
twenty-three (23) months’ imprisonment for the simple assault conviction.
The court gave Appellant credit for thirteen (13) days of time served and
granted immediate parole. The court also determined that the harassment
conviction merged with the simple assault conviction for sentencing. For the
REAP conviction, the court imposed a concurrent term of twelve (12)
months’ probation. For the criminal mischief conviction, the court ordered
Appellant to pay costs. Appellant did not file post-sentence motions.
Appellant timely filed a notice of appeal on May 8, 2014. That same
day, counsel filed a statement of intent to file a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
As a preliminary matter, appellate counsel seeks to withdraw her
representation pursuant to Anders and Commonwealth v. Santiago, 602
Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise her of her right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
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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) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[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
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2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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(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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw. The
petition states counsel performed a thorough review of the record and
concluded the appeal would be wholly frivolous. Counsel also supplied
Appellant with a copy of the withdrawal petition, the brief, and a letter
explaining Appellant’s right to proceed pro se or with new privately retained
counsel to pursue any additional points Appellant deems worthy of this
Court’s attention. In her Anders brief, counsel provides a summary of the
facts and procedural history of the case.3 Counsel refers to facts in the
record that might arguably support the issue raised on appeal and offers
citations to relevant law. The brief also provides counsel’s conclusion that
the appeal is wholly frivolous. Thus, counsel has substantially complied with
the requirements of Anders and Santiago.
As Appellant has filed neither a pro se brief nor a counseled brief with
new privately retained counsel, we review this appeal on the basis of the
issue raised in the Anders brief:
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3
We note that counsel’s rendition of the procedural history is inaccurate.
Nevertheless, this deficiency does not hamper our ability to conduct
meaningful appellate review.
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WHETHER APPELLANT’S SENTENCE IS MANIFESTLY
EXCESSIVE, CLEARLY UNREASONABLE AND
INCONSISTENT WITH THE OBJECTIVES OF THE
PENNSYLVANIA SENTENCING CODE?
(Anders Brief at 3).
Appellant contends the sentencing court failed to consider mitigating
factors, including her genuine remorse and Appellant’s lack of a prior
criminal record. Appellant concedes her sentences fall within the standard
range of the sentencing guidelines. Nevertheless, Appellant insists the court
did not consider the factors set forth in 42 Pa.C.S.A. § 9721(b), including 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 Appellant’s rehabilitative
needs. Appellant concludes the court abused its discretion by imposing a
manifestly excessive sentence. Appellant’s challenge is to the discretionary
aspects of her sentence. See Commonwealth v. Lutes, 793 A.2d 949(Pa.Super. 2002) (stating claim that sentence is manifestly excessive
challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether 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
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appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing.4 Commonwealth v. Mann, 820
A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599(2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the
reasons relied upon for allowance of appeal ‘furthers the purpose evident in
the Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision
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4
Here, Appellant failed to raise her discretionary aspects claims at the
sentencing hearing or in post-sentence motions. Due to counsel’s petition to
withdraw, however, we proceed with our analysis of Appellant’s issue. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (explaining
Anders requires review of issues otherwise waived on appeal).
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to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912-13 (quoting Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)).
A claim that a sentence is manifestly excessive might raise a
substantial question if the appellant’s Rule 2119(f) statement sufficiently
articulates the manner in which the sentence imposed violates a specific
provision of the Sentencing Code or the norms underlying the sentencing
process. Mouzon, supra at 435, 812 A.2d at 627. Nevertheless, “[a]n
allegation that a sentencing court ‘failed to consider’ or ‘did not adequately
consider’ certain factors does not raise a substantial question that the
sentence was inappropriate.” Commonwealth v. Cruz-Centeno, 668 A.2d
536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195-7-
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(1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.
1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also
Commonwealth v. Kane, 10 A.3d 327 (Pa.Super. 2010), appeal denied,
612 Pa. 689, 29 A.3d 796 (2011) (stating claim that sentencing court failed
to consider factors set forth in 42 Pa.C.S.A. 9721(b) does not raise
substantial question).
Instantly, Appellant’s assertion that the court improperly weighed the
mitigating factors does not raise a substantial question. See Cruz-
Centeno, supra. Here, the court had the benefit of a PSI report. (See N.T.
Sentencing Hearing, 4/8/14, at 9.) Therefore, we can presume the court
considered the relevant sentencing factors. See Commonwealth v.
Tirado, 870 A.2d 362, 366 n.6 (Pa.Super. 2005) (stating where sentencing
court had benefit of PSI, law presumes court was aware of and weighed
relevant information regarding defendant’s character and mitigating factors).
The court also imposed standard range sentences.5 Thus, Appellant’s
sentences are presumptively valid. See Cruz-Centeno, supra (explaining
that combination of PSI and standard range sentence, absent more, cannot
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5
With a prior record score of zero (0) and an offense gravity score of four
(4), the standard range for the simple assault conviction was restorative
sanctions to three (3) months. Appellant’s sentence of 10 days to 23
months for simple assault was in the standard range. With a prior record
score of zero (0) and an offense gravity score of three (3), the standard
range for the REAP conviction was restorative sanctions to one (1) month.
Appellant’s sentence of 12 months’ probation (restorative sanctions) was
also in the standard range.
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be considered excessive or unreasonable). Accordingly, we affirm the
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2014
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