Com. v. Black, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v.
JOSEPH MICHAEL BLACK
Appellant No. 700 MDA 2016
Appeal from the Judgment Entered September 18, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000944-2015, CP-35-CR-0001216-
2014
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 22, 2016
Appellant, Joseph Michael Black, appeals from the September 18, 2015
judgment of sentence of forty-five to ninety-six months’ incarceration
followed by ten years of probation. Appellant challenges the discretionary
aspects of his sentence. Additionally, Appellant’s counsel, Donna M. DeVita,
Esq., seeks to withdraw her representation of Appellant pursuant to Anders
v. California, 87 S. Ct. 1936 (1967) and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to
withdraw.
We adopt the following statement of facts, garnered from the trial
court’s opinion, which in turn is supported by the record. See Trial Court
Opinion (TCO), 6/29/16, at 1-6. As a result of a Lackawanna County
investigating grand jury, Appellant, a prison guard, was charged with
numerous crimes related to his sexual misconduct and mistreatment of
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female inmates in the Lackawanna County Prison. Five victims testified that
Appellant pressured or forced them into having sexual relations with him.
As a result of the grand jury’s recommendation, Appellant was arrested and
charged.
At criminal information CP-35-CR-001216-2014, Appellant was
charged with two counts of unlawful restraint/involuntary servitude, one
count of indecent exposure, four counts of official oppression, one count of
indecent assault, two counts of involuntary deviate sexual intercourse (IDSI)
– person substantially impaired, two counts of IDSI – threat of forcible
compulsion, and four counts of institutional sexual assault.1
At criminal information CP-35-CR-000944-2015, Appellant was
charged with one count of indecent exposure, two counts of official
oppression, one count of IDSI – forcible compulsion, one count of
institutional sexual assault, and one count of criminal attempt – rape by
forcible compulsion.2
On September 18, 2015, Appellant entered a guilty plea. At criminal
information 1216-2014, Appellant pleaded guilty to two counts of unlawful
restraint, one count of indecent exposure, and two counts of official
oppression. At criminal information 944-2015, Appellant pleaded guilty to
one count of indecent exposure and one count of official oppression.
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1
18 Pa.C.S. § 2902(a)(2), 3127(a), 5301(1), 3126(a)(1), 3123(a)(4),
3123(a)(2), 3124.2(a), respectively.
2
18 Pa.C.S. § 901(a).
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Appellant underwent a guilty plea colloquy and moved for an immediate
sentence, waiving his right to a presentence investigation.
The trial court sentenced Appellant to an aggregate sentence of forty-
five to ninety-six months’ incarceration followed by ten years of special
probation. Appellant timely filed a motion for reconsideration of sentence,
which was denied by operation of law.
Appellant timely filed a notice of appeal pro se; the trial court
appointed appellate counsel, who timely filed a concise statement pursuant
to Pa.R.A.P. 1925(b). The trial court issued a responsive opinion.
On August 8, 2016, appellate counsel filed in this Court an Anders
brief and application to withdraw as counsel. The brief sets forth the
following two issues Appellant seeks to raise on appeal:
A. Whether the sentences imposed were harsh and unreasonable
and a manifest abuse of discretion?
B. Whether the sentencing court erred and committed an abuse
of discretion when it imposed sentences in or above the
aggravated ranges where there were no aggravating
circumstance[s] on the official oppression charges, the indecent
assault charges, and the unlawful restraint charges?
Ander’s Brief at 4.
When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on
direct appeal under Anders, counsel must file a brief that meets the
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requirements established by the Pennsylvania Supreme Court in Santiago,
namely:
(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 also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his 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), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, only then may this Court “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In the instant matter, Attorney De Vita’s Anders brief complies with
the above-stated requirements. Namely, she includes a summary of the
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relevant factual and procedural history, she refers to the portions of the
record that could arguably support Appellant’s claims, and she sets forth her
conclusion that Appellant’s appeal is frivolous. She explains her reasoning
and supports her rationale with citations to the record as well as pertinent
legal authority. Attorney De Vita avers she has supplied Appellant with a
copy of her Anders brief and a letter explaining the rights enumerated in
Nischan.3 Accordingly, counsel has complied with the technical
requirements for withdrawal. Thus, we may independently review the record
to determine if the issues Appellant raises are frivolous and to ascertain if
there are other non-frivolous issues he may pursue on appeal.
Both of Appellant’s issues challenge the discretionary aspects of his
sentence. In his first issue, Appellant argues that the trial court’s sentence
was harsh, unreasonable, and a manifest abuse of discretion. In his second
issue, Appellant argues that the court erred in imposing sentences above the
aggravated ranges where there were no aggravating circumstances on the
charges of official oppression, indecent assault, and unlawful restraint.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal. See Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.
2119(f). This Court conducts a four-part analysis to determine: (1) whether
Appellant has timely filed a notice of appeal; (2) whether the issue was
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3
Appellant has not filed a response to counsel’s Anders brief.
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properly preserved at sentencing or in a motion to reconsider and modify
sentence; (3) whether Appellant’s brief has a fatal defect; and (4) whether
there is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
A claim that the sentencing court imposed an unreasonable sentence
by sentencing outside the guideline ranges may raise a substantial question,
which is reviewable on appeal. See Commonwealth v. Rodda, 723 A.2d
212, 213-14 (Pa. Super. 1999). However, where the trial court sufficiently
states it reasons for imposing a sentence outside of the guidelines and
acknowledges its awareness of the guidelines on the record, an appellant
has not raised a substantial question. See Commonwealth v. Davis, 737
A.2d 792, 798 (Pa. Super. 1999); see also Commonwealth v. Gibson,
716 A.2d 1275, 1277 (Pa. Super. 1998).
Appellant’s brief contains the requisite statement of reasons relied
upon in support of appeal as required by 42 Pa.C.S. § 9781(b) and Pa.R.A.P.
2119(f). We acknowledge that he preserved his issue by arguing, in his
motion for reconsideration of sentence, that his sentence was illegal,
oppressive, and unjust. See Motion for Reconsideration of Sentence,
9/29/15, at 1-3 (citing trial court’s departure from the sentencing
guidelines).
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In the instant case, however, the sentencing court demonstrated its
awareness of the guidelines on the record. See Notes of Testimony (N. T.),
9/18/15, at 25-27. Further, it offered reasons for sentencing outside of the
guidelines, namely: the duration and length of time in which the crimes
occurred; the number of victims; the need to deter similarly situated
authority figures; the harm Appellant had done to the criminal justice
system as a whole; and that Appellant had taken advantage of helpless
women. These reasons are sufficient to sentence outside of the guidelines
and in the aggravated range. Thus, we decline to find that Appellant has
raised a substantial question.
In short, we agree with Attorney De Vita that Appellant’s two issues
are frivolous. We have independently reviewed the record, and find no other
issues of arguable merit that he could pursue on appeal. Accordingly, we
affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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