Com. v. Deleon, W. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIE ANDRAE DELEON
Appellant No. 1100 MDA 2015
Appeal from the Judgment of Sentence March 17, 2015
in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001136-2014
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JUNE 14, 2016
Appellant Willie Andrae Deleon (“Appellant”) appeals from the March
17, 2015 judgment of sentence entered in the Lackawanna County Court of
Common Pleas following his guilty plea convictions for criminal solicitation
(involuntary deviate sexual intercourse of a person less than 16 years of
age)1 and unlawful contact with a minor.2 Appellant’s counsel has filed an
Anders3 brief, together with a petition to withdraw as counsel. We affirm
the judgment of sentence and grant counsel’s petition to withdraw.
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1
18 Pa.C.S. § 902(a) (§ 3127(a)(7)).
2
18 Pa.C.S. § 6318(a)(1).
3
Anders v. California, 386 U.S. 738 (1967).
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On August 25, 2014, Appellant pleaded guilty to the aforementioned
charges. On March 17, 2015, after the preparation of a presentence
investigation report and a sexual offenders assessment board evaluation, the
trial court sentenced Appellant to 48-96 months’ incarceration followed by
four years’ probation on the criminal solicitation conviction and two years’
probation on the unlawful contact with a minor conviction to be served
consecutively to the solicitation sentence. On March 27, 2015, Appellant
filed a motion for reconsideration arguing the sentence was excessive, which
the trial court denied on May 26, 2015, after conducting a hearing.
Appellant filed a notice of appeal on June 25, 2015, and a Pa.R.A.P.
1925(b) statement on July 24, 2015. The trial court filed its Pa.R.A.P.
1925(a) opinion on February 11, 2016.
As previously noted, Appellant’s counsel has filed an application
seeking to withdraw from representation pursuant to Anders v. California
and its Pennsylvania counterpart, Commonwealth v. Santiago.4 Before
addressing the merits of Appellant’s underlying issue presented, we must
first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa.Super.2007) (en banc).
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4
978 A.2d 349 (Pa.2009).
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Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a 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 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. Counsel must also provide the appellant with a
copy of the Anders brief, together 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.
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).
Instantly, counsel contemporaneously filed a petition to withdraw as
counsel with the Anders brief. The petition states counsel’s determination
that Appellant’s appeal is without merit. See Petition to Withdraw As
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Counsel, ¶ 7. The petition further explains that counsel notified Appellant of
the withdrawal request and sent Appellant a letter explaining his right to
proceed pro se or with new, privately-retained counsel to raise any
additional points or arguments that Appellant believed had merit. 5 See id.
at ¶¶ 6-7; see also Letter to Appellant, March 2, 2016. In the Anders
brief, counsel provides a summary of the facts and procedural history of the
case with citations to the record, refers to evidence of record that might
arguably support the issue raised on appeal, provides citations to relevant
case law, and states her conclusion that the appeal is wholly frivolous and
her reasons therefor. See Anders Brief, pp. 5-13. Accordingly, counsel has
substantially complied with the requirements of Anders and Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issue of
arguable merit raised in the Anders brief:
(A) Whether the lower court imposed a harsh and unreasonable
sentence on the criminal solicitation-involuntary deviate sexual
intercourse – person less than 16 years old offense?
Anders Brief, p. 4 (unnecessary capitalization omitted).
This claim raises a challenge to the discretionary aspects of Appellant’s
sentence. “Challenges to the discretionary aspects of sentencing do not
entitle a petitioner to review as of right.” Commonwealth v. Allen, 24
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5
The letter further makes clear that counsel supplied Appellant with a copy
of the Anders brief. See Letter to Appellant, March 2, 2016.
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A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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
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.
Allen, 24 A.3d at 1064.
Here, Appellant filed a timely notice of appeal and preserved his
discretionary aspects of sentencing issue in a motion for reconsideration of
sentence. Further, Appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
See Anders Brief, pp. 8-9. Accordingly, we now determine whether
Appellant has raised a substantial question for review and, if so, proceed to
a discussion of the merits of the claim. See Pa.R.A.P. 2119(f);
Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).
“A substantial question will be found where the defendant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the [sentencing] code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v.
Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see
also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a
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substantial question on a case-by-case basis.” Id. A bald or generic
assertion that a sentence is excessive does not, by itself, raise a substantial
question justifying this Court’s review of the merits of the underlying claim.
Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 701
(Pa.Super.2013). Further, “[t]his Court has held on numerous occasions
that a claim of inadequate consideration of mitigating factors does not raise
a substantial question for our review.” Commonwealth v. Disalvo, 70
A.3d 900, 903 (Pa.Super.2013); see also Commonwealth v. Ratushny,
17 A.3d 1269, 1273 (Pa.Super.2011) (“argument that the sentencing court
failed to adequately consider mitigating factors in favor of a lesser sentence
does not present a substantial question appropriate for our review.”);
Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa.Super.2006)
(“[A]ppellant’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.”).
“[A] substantial question exists when a sentencing court imposed a
sentence in the aggravated range without considering mitigating factors.”
Rhoades, 8 A.3d at 919 n.12 (citing Commonwealth v. Felmlee, 828
A.2d 1105, 1107 (Pa.Super.2003)) (emphasis in original). However, “where
a sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super.2010).
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In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial
court abused its discretion by sentencing him in the high end of the
sentencing guidelines without considering certain mitigating factors. See
Anders Brief, p. 9.6 The claim does not allege that the sentencing court
departed from the standard range and sentenced Appellant in the
aggravated range of the sentencing guidelines. It alleges merely that
Appellant received a sentence at the higher end of the standard range.
Therefore, this claim does not present a substantial question for this Court’s
review. See Moury, supra.
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6
Appellant’s Pa.R.A.P. 2119(f) statement reads, in pertinent part, as
follows:
The Appellant asserts that the sentencing court stated that
it was imposing a sentence in [the] standard range, which for
solicitation for IDSI is 36 to 54 months. The Appellant believes
that the lower court imposed a harsh and unreasonable
sentence, given the facts that he is a first time offende[r], that
he had voluntarily enrolled himself in a therapeutic counseling
program, and that he had posted his ad in the adult section of
Craig’s [L]ist, he was not soliciting sex with a minor.
The Appellant asserts that given the circumstances
presented herein, this sentence was inconsistent with the
Sentencing Guidelines. The Appellant contends that the
Sentencing Guidelines had considered the age of the victim since
the offense involves the solicitation for IDSI – child less than 16
years of age. He submits that the sentencing judge’s focus on
the fact the age of the child was in error. As such, the Appellant
urges this Court to review his sentence.
Anders Brief, p. 9.
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Further, even had Appellant stated a substantial question for review,
we would affirm on the merits. We review discretionary aspects of sentence
claims under the following standard of review:
[S]entencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias
or ill will. It is more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Initially, where a sentencing judge had the benefit of a presentence
investigation report, it is presumed that the judge was aware of all relevant
information regarding the defendant’s character and weighed those
considerations along with any mitigating factors. Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa.Super.2004).
Additionally, the sentencing guidelines are merely advisory in nature.
See Commonwealth v. Walls, 926 A.2d 957, 964 (Pa.2007) (“[T]he
guidelines have no binding effect, create no presumption in sentencing, and
do not predominate over other sentencing factors – they are advisory
guideposts that are valuable, may provide an essential starting point, and
that must be respected and considered; they recommend, however, rather
than require a particular sentence.”). “[I]t is well-established that a
sentencing court can impose a sentence that is the maximum period
authorized by the statute, 42 Pa.C.S. § 9756(a).” Commonwealth v.
Saranchak, 675 A.2d 268, 277 n. 17 (Pa.1996).
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Our review of the sentencing transcript reveals that the lower court did
not abuse its discretion. See generally N.T. 3/17/2015. Instead, the trial
court imposed a sentence that was consistent with the protection of the
public, took into account the gravity of the offense as it related to the impact
on the life of the victim and on the community, and considered the
Appellant’s rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id.
The trial court explained the imposition of Appellant’s sentence thusly:
In this case, prior to imposing sentence, this [c]ourt had
the benefit of a presentence investigative report, which was
reviewed in its entirety. As such, this [c]ourt was aware of and
weighted relevant information regarding the Appellant’s
character as well as any mitigating factors. This [c]ourt was
aware of Appellant’s prior record score of zero and that he was
not deemed a sexually violent predator. This [c]ourt also heard
testimony from Appellant and his pastor. This [c]ourt also
addressed Appellant’s attitude toward his responsibility for his
actions, particularly his statement “It wasn’t my intent to lure an
underage person” despite the fact that appellant continued to
exchange messages of a sexual nature with an individual he
believed to be a minor child. This [c]ourt further stated on the
record that it considered the punishment, rehabilitation,
deterrence, and incapacitation purposes of sentencing.
Appellant’s steps toward rehabilitation do not completely negate
the fact that he sent graphic, sexually explicit messages to a
person he believed to be a fourteen year old girl over three (3)
days. Appellant further made plans to have sexual relations with
this child and travelled from the Allentown area to Scranton to
engage in intercourse. There is nothing in the record to suggest
that, had it not been law enforcement at the meet location,
Appellant would [not] have engaged in deviate sexual
intercourse with a minor child. In Appellant’s own words, his
“desire to want to have sexual relations at that moment was
greater than me understanding between right and wrong.” This
sort of behavior, the inability to discern between what is right,
wrong, and illegal based on one’s own wants and impulses, is
the type of conduct that fits squarely into the sentencing
purposes. This [c]ourt clearly considered the particular
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circumstances of the offenses committed, the impact on the
community, the need to deter Appellant and others from
committing this type of offense, and the protection of the
community at large. Appellant was then sentenced within the
guidelines for the offenses committed. Appellant was sentenced
to forty-eight (48) to ninety-six (96) months’ imprisonment. The
maximum sentence for Solicitation for Involuntary Deviate
Sexual Intercourse with a Person Less than 16 years old is two
hundred and forty (240) months.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 11, 2016, pp. 9-10
(internal record citations omitted); see also N.T. 3/17/2015, pp. 4-8.
We find no abuse of discretion in the trial court’s imposition of
Appellant’s standard range sentence. Accordingly, Appellant’s excessiveness
claim fails on the merits.
We agree with counsel that Appellant’s claim is wholly frivolous.
Moreover, our independent review of the record has revealed no other
preserved issues of arguable merit. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2016
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