Com. v. Irby, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL JEROME IRBY, JR. :
:
Appellant : No. 1306 WDA 2017
Appeal from the Judgment of Sentence July 18, 2017
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000718-2016
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 07, 2018
Michael Jerome Irby, Jr., appeals from the judgment of sentence
entered in the Clearfield County Court of Common Pleas. Irby asserts the trial
court abused its discretion in fashioning his sentence. Additionally, his court-
appointed counsel, Steven M. Johnston, Esquire, seeks permission from this
Court to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
deny Attorney Johnston permission to withdraw, vacate Irby’s judgment of
sentence in part, and remand for resentencing on the robbery conviction.
A recitation of the complete factual and procedural history of this matter
is unnecessary to our disposition. Briefly, on May 8, 2017, Irby pleaded guilty
to robbery and terroristic threats.1 On July 18, 2017, the trial court sentenced
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1 18 Pa.C.S.A. §§ 3701(a)(1)(iv) and 2706(a)(1), respectively.
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Irby to sixteen months to five years’ imprisonment for robbery and twelve
months to two years’ imprisonment for terroristic threats. These sentences
were set to run concurrently.
Irby filed a post-sentence motion challenging the discretionary aspects
of his sentence. The court denied Irby’s motion. This timely appeal follows.
Prior to addressing the merits of Irby’s requested appeal, we must
examine Attorney Johnston’s request to withdraw. Attorney Johnston has
substantially complied with the mandated procedure for withdrawing as
counsel. See Santiago, 978 A.2d at 361 (articulating Anders requirements);
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing
that counsel must inform client by letter of rights to proceed once counsel
moves to withdraw and append a copy of the letter to the petition). Irby did
filed a response to the motion to withdraw in the form of a pro se brief.
As counsel has met his technical obligation to withdraw, we must now
“make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.”
Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015)
(citation omitted). See also Commonwealth v. Tukhi, 149 A.3d 881, 886
(Pa. Super. 2016) (providing that if counsel’s petition and brief satisfy
Anders, counsel will be permitted to withdraw if the appeal is wholly frivolous;
however if there are non-frivolous issues, the petition to withdraw will be
denied).
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Counsel has identified three issues Irby believes entitles him to relief.
The trial court abused its discretion by (1) improperly considering the use of
a handgun when sentencing in the aggravated range; (2) imposing a harsher
sentence on Irby than his co-defendant; and (3) failing to consider mitigating
evidence. These three issues raise challenges to the discretionary aspects of
sentencing.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[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 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Attorney Johnston has partially complied by preserving Irby’s
claims in a post-sentence motion and filing a timely notice of appeal. However,
Attorney Johnston has failed to include a statement of reasons for allowance
of appeal pursuant to Pa.R.A.P. 2119(f) in the Anders’ Brief.
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Ordinarily, we would find these sentencing claims waived. See
Commonwealth v. Kiesel, 854 A.2d 530, 532-533 (Pa. Super. 2004)
(finding challenge to discretionary aspect waived for failure to include a Rule
2119(f) statement). However, in the context of Attorney Johnston’s petition
to withdraw, we must address Irby’s challenges. See Commonwealth v.
Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating that where counsel files
an Anders brief, this Court will review discretionary aspects of sentencing
claims that were not otherwise preserved). Therefore, we must determine if
any of Irby’s claims raise substantial questions for our review.
We cannot review Irby’s claim that the trial court failed to consider
mitigating factors, because it does not raise a substantial question. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en
banc) (holding claim that sentencing court failed to adequately consider
certain mitigating factors does not raise a substantial question). Thus, this
claim fails.2 However, both of Irby’s remaining challenges—that the trial court
abused its discretion by considering an impermissible factor and by imposing
a harsher sentence on him than on his co-defendant—raise substantial
questions for our review. See Commonwealth v. Shugars, 895 A.2d 1270,
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2 Both the trial court and Commonwealth claim Irby waived this claim by failing
to raise any concerns about mitigating evidence with the trial court in the first
instance. See Trial Court Opinion, 11/7/17, at 5; Commonwealth’s Brief, at
10. While we agree this would constitute waiver, we have chosen to resolve
this claim on a different basis. See Pa.R.A.P. 302(a) (“[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on appeal”).
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1274-1275 (Pa. Super. 2006) (finding substantial question where appellant
argued trial court relied on impermissible factors as reason for increasing the
sentence); Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super.
2010) (concluding that an appellant raises a substantial question when he
avers an unexplained disparity between his sentence and his co-defendant’s
sentence).
The standard of review with respect to sentencing is as follows:
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.
Shugars, 895 A.2d at 1275 (citation omitted).
Moving to Irby’s first claim, he claims the trial court impermissibly relied
on the fact that he utilized a gun in the robbery in fashioning a sentence in
the aggravated range. See Anders’ Brief, at 6 ¶ I, 11; Pro Se Brief, at 6 ¶ I,
11-13. Irby argues that because he did not plead guilty to a crime with the
utilization of a handgun as an element, the trial court cannot consider this
fact. See Pro Se Brief, at 11-13.
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public,
gravity of an offense in relation to impact on victim and community, and
rehabilitative needs of the defendant….” Commonwealth v. Fullin, 892 A.2d
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843, 847 (Pa. Super. 2006) (citation omitted). Furthermore, “[a] trial court
judge has wide discretion in sentencing and can, on the appropriate record
and for the appropriate reasons, consider any legal factor in imposing a
sentence in the aggravated range.” Commonwealth v. Stewart, 867 A.2d
589, 593 (Pa. Super. 2005) (citation omitted). However, “[i]t is impermissible
for a court to consider factors already included within the sentencing
guidelines as the sole reason for increasing or decreasing a sentence to the
aggravated or mitigated range.” Commonwealth v. Simpson, 839 A.2d 334,
339 (Pa. Super. 2003) (citation omitted).
Here, as Irby correctly notes, he pleaded guilty to robbery and the
deadly weapon sentence enhancement was not utilized. Therefore, the use of
a gun to threaten the life of the victim was not taken into consideration in
calculating the standard guideline range of six to fourteen months
imprisonment. See 204 Pa. Code. § 303.16(a). Basic Sentencing Matrix. 7th
Edition Amendment 3 (9/25/15). Despite Irby’s foundationless claim, it is
precisely because this was not included within the guidelines that the trial
court would be well within its discretion in using this as the sole factor in
aggravating Irby’s sentence. See Stewart, 867 A.2d at 593. However, our
review of the record reveals that the trial court did not solely utilize this fact
in imposing sentence. Instead, the trial court imposed an aggravated range
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sentence3 due to the use of the handgun and his actions as the principal in
the robbery. See N.T., Sentencing, 6/18/17, at 11-13. Therefore, we cannot
find that the trial court abused its discretion.
Next, Irby claims that the trial court abused its discretion by imposing a
harsher sentence on him than on his co-defendant. See Anders’ Brief, at 6 ¶
II, 11; Pro Se Brief, 6 ¶ II, 14-17. In Pennsylvania,
co-defendants are not required to receive identical sentences.
Generally a sentencing court must indicate the reasons for
differences in sentences between co-defendants. This is not to
say, however, that the court must specifically refer to the
sentence of a co-defendant. Rather, it requires that when there is
a disparity between co-defendants’ sentences, a sentencing court
must give reasons particular to each defendant explaining why
they received their individual sentences.
Mastromarino, 2 A.3d at 589 (citation and quotation marks omitted).
Here, the trial court placed the sentence of Irby’s co-defendant on the
record and noted that the Commonwealth had requested a lesser sentence
due to her cooperation with them. See N.T., Sentencing, 7/18/17, at 10.
Additionally, the trial court noted that Irby was the principal actor in this
robbery, and, unlike his co-defendant, was the one in possession of a
handgun. See id., at 12. Therefore, the trial court concluded that Irby should
receive a harsher sentence than his co-defendant. See id., at 14. As the trial
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3 It is clear from the record that the trial court did not intend to impose an
aggravated range sentence, but imposed a sentence based upon inaccurate
sentencing guidelines. See N.T., Sentencing, 6/18/17, at 11. We discuss this
issue later in the memorandum.
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court clearly placed its reasoning for differentiating between the co-
defendants, we cannot find that the trial court abused its discretion.
We turn next to the claims raised by Irby in his pro se brief. While Irby’s
brief is somewhat convoluted, he appears to raise two additional claims:4 that
the trial court violated his right to equal protection by imposing a harsher
sentence on him than on his co-defendant and that 18 Pa.C.S.A. § 1103 is
unconstitutional. See Pro Se Brief, at 6, 15-19.
Moving to Irby’s first claim, our courts have consistently held that where
support is found in the record to justify the different treatment between co-
defendants, there is no denial of equal protection. See Commonwealth v.
Parry, 452 A.2d 781, 783 (Pa. Super. 1982) (citation omitted). As noted
above, we found that the trial court sufficiently described its reasoning for
imposing different sentences on Irby and co-defendant. Therefore, Irby’s
claim of an equal protection violation, fails.
Additionally, we find no merit to Irby’s claim that 18 Pa.C.S.A. § 1103
is unconstitutional. Irby claims that this statute, which describes the
maximum sentences allowable under the law, is unconstitutional because it
allows judges unfettered discretion in sentencing up to that point. See Pro Se
Brief, at 19. However, this contention utterly ignores the comprehensive
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4 Irby, in fact, raises five issues in his pro se appellate brief. However, three
of these issues simply mirror the issues raised by appellate counsel. Therefore,
as we have already addressed these issues, we need not address them again.
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system of statutes and guidelines that have been put into place to do precisely
what Irby claims does not happen in Pennsylvania: monitor a trial court’s use
of their discretion in sentencing. Therefore, as this is Irby’s only rationale
behind his belief that § 1103 is unconstitutional, this issue fails as well.
We agree with counsel that the issues raised herein are frivolous.
However, our independent review of the record reveals a glaring non-frivolous
issue counsel failed to raise: whether Irby should be entitled to resentencing
due to the trial court’s reliance on incorrect sentencing guidelines.
All parties agree that the trial court sentenced Irby to sixteen months to
five years’ imprisonment for robbery pursuant to its belief that the standard
range sentence for robbery was six to sixteen months. However, the standard
sentencing guidelines range for this sentence is actually six to fourteen
months. See 204 Pa. Code. § 303.16(a). Basic Sentencing Matrix. 7th Edition
Amendment 3 (09/25/15). While counsel notes that the trial court utilized the
incorrect guidelines, he fails to recognize the implications of the court’s
mistake.
Based on our review of the record, we cannot conclude that the issue
set forth above is wholly meritless. Therefore, we cannot allow counsel to
withdraw.
While we would typically remand this matter for counsel to file an
advocate’s brief, the error here is so readily apparent that a remand for this
purpose would be pointless. The trial court clearly misapprehended the
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applicable guidelines. See N.T., Sentencing, 7/18/17, at 11 (“You had
indicated you believe that your standard range is 6 to 14 …. I have a
calculation here by the probation office that your standard range is 6 to 16
months”). Due to this misapprehension, the trial court accidently imposed an
aggravated range sentence. See id., at 14 (“So I don’t have any reason to
aggravate it, so I’m stuck with that guideline range…”). This act alone, readily
apparent from the record, requires a resentencing for Irby’s robbery
sentencing. See Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.
1999) (providing that generally, this Court will vacate a sentence based on an
incorrect or absent guideline recitation upon a showing that the trial court was
guided in its sentencing decision by a material misapprehension of the
applicable sentencing guideline range). Therefore, in the interests of judicial
economy, we vacate Irby’s robbery sentence and remand for resentencing.5
Convictions affirmed. Judgment of sentence affirmed in part and vacated
in part. Petition to withdraw as counsel denied. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
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5We need not vacate the judgment of sentence in its entirety, as we have not
upset the sentencing scheme. As mentioned, the trial court ordered Irby’s
sentence for terroristic threats to run concurrent to the robbery sentence.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2018
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