Com. v. Davis, A. ( 2016 )

J-S44022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY I. DAVIS, JR.
Appellant No. 2811 EDA 2015
Appeal from the Judgment of Sentence Entered August 18, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0005196-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 24, 2016
Appellant, Anthony I. Davis, Jr., appeals from the August 18, 2015
judgment of sentence imposing six to twenty-three months of incarceration
with credit for time served and immediate probation upon completion of an
anger management program. Counsel has filed a brief and petition to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
On November 12, 2013, Appellant pled nolo contendere to one count
of simple assault (18 Pa.C.S.A. § 2701) and the trial court imposed two
years of probation. The trial court ordered Appellant to undergo anger
J-S44022-16
management treatment and avoid inappropriate contact with the victim, his
wife. On August 18, 2015, the trial court conducted a Gagnon II1 hearing,
to address an alleged probation violation. At that hearing, Appellant’s
probation officer testified that Appellant contacted his wife by telephone and
threatened to kill her. Appellant expressed remorse for the incident. The
trial court revoked Appellant’s probation and imposed the sentence on
appeal.
Counsel filed an Anders Brief addressing Appellant’s contention that
the trial court abused its discretion in sentencing Appellant to total
confinement. Before we address the merits, we consider the adequacy of
counsel’s Anders/Santiago brief, which must comply with the following:
(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.
Santiago, 978 A.2d at 361.
____________________________________________
1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
-2-
J-S44022-16
Counsel must also advise the defendant of his rights 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), appeal denied, 936 A.2d 40(Pa. 2007). We have reviewed counsel’s filings and found them in
compliance with the foregoing. Appellant has not responded. We therefore
proceed to the merits.
We now consider the trial court’s decision to sentence Appellant to
total confinement. The following standard governs appellate review of a trial
court’s sentencing discretion:
[T]he proper standard of review when considering whether
to affirm the sentencing court’s determination is an abuse of
discretion. [A]n 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. […] 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.
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).
The Judicial Code governs a trial court’s imposition of total
confinement:
§ 9725. Total confinement
The court shall impose a sentence of total confinement if,
having regard to the nature and circumstances of the crime and
-3-
J-S44022-16
the history, character, and condition of the defendant, it is of the
opinion that the total confinement of the defendant is necessary
because:
(1) there is undue risk that during a period of probation or
partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that
can be provided most effectively by his commitment to an
institution; or
(3) a lesser sentence will depreciate the seriousness of the
crime of the defendant.
42 Pa.C.S.A. § 9725.
Instantly, Appellant was on probation with a condition of avoiding
inappropriate behavior toward his wife. Despite having already undergone
anger management treatment, Appellant threatened his wife’s life during an
argument. Based on the circumstances of Appellant’s probation violation,
the trial court elected to incarcerate Appellant and order additional anger
management treatment. The court believed incarceration was appropriate—
at least until Appellant’s completion of additional anger management—
because the court considered Appellant a threat to his wife. We discern no
abuse of discretion. The record supports a finding that Appellant might
commit a crime and/or that Appellant’s anger management counseling will
be more effective during a sentence of incarceration. The sentence is
appropriate under § 9725(1) and (2).
We agree with counsel that any challenge to the trial court’s
sentencing discretion lacks arguable merit. We have conducted an
independent review of the record and found no other issues of arguable
-4-
J-S44022-16
merit. We therefore affirm the judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
-5-