Com. v. Longbottom, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SEAN LONGBOTTOM
Appellant No. 23 EDA 2014
Appeal from the Judgment of Sentence November 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006930-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 17, 2015
Appellant, Sean Longbottom, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
negotiated guilty plea to possessing instruments of crime (“PIC”) and
terroristic threats. We affirm and grant counsel’s petition to withdraw.1
The relevant facts and procedural history of this appeal are as follows.
On the afternoon of May 9, 2013, Richard Barr was washing his vehicle in
the driveway at 6611 Hegerman Street in Philadelphia. Appellant, a next-
door neighbor, appeared on his own porch and began to yell at Mr. Barr.
After yelling at Mr. Barr, Appellant briefly left the porch. When Appellant
returned, he pointed a firearm at Mr. Barr and said, “I’m going to get you,
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1
18 Pa.C.S.A. §§ 907, 2706, respectively.
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I’ve got something for you, this is the beginning.” (N.T. Plea and Sentencing
Hearing, 11/22/13, at 7). At the same time, Mr. Barr’s family dog entered
the driveway. Appellant saw the dog and said, “I got something for that dog
too.” (Id.)
On November 22, 2013, Appellant executed a written guilty plea
colloquy. That same day, Appellant pled guilty to PIC and terroristic
threats.2 In exchange, the Commonwealth recommended a time-served
sentence, followed by two (2) years of probation. The Commonwealth also
agreed to withdraw additional charges. Following an oral colloquy, the court
accepted Appellant’s plea. Pursuant to the plea agreement, the court
immediately sentenced Appellant to time served to six (6) months’
imprisonment for terroristic threats. For the PIC conviction, the court
imposed a consecutive term of two (2) years’ probation. The court also
granted immediate parole. Appellant did not file post-sentence motions.
Appellant timely filed a notice of appeal on Monday, December 23,
2013. On May 8, 2014, the court ordered Appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
On May 29, 2014, 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____________________________________________
2
The offenses of PIC and terroristic threats were graded as first degree
misdemeanors.
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(1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185(1981).
As a preliminary matter, appellate counsel seeks to withdraw his
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 him of his 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
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:
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Neither Anders nor McClendon 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
(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 conscientious examination of the record
and determined 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 raise any additional points Appellant deems worthy of this Court’s
consideration. In his Anders brief, counsel provides a summary of the facts
and procedural history of the case. Counsel refers to facts in the record that
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might arguably support the issues 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
issues raised in the Anders brief:
WAS [APPELLANT’S] GUILTY PLEA VALID?
WAS [APPELLANT] COMPETENT TO ENTER A PLEA IN THAT
HE HAD NOT TAKEN HIS REQUIRED DOSAGE OF
MEDICATION PRIOR TO ENTRY OF THE PLEA?
WAS THE SENTENCE IMPOSED BY THE COURT VALID IN
LIGHT OF THE FACT THAT [APPELLANT] WAS NOT
AFFORDED ALLOCUTION PRIOR TO SENTENCING?
WAS [APPELLANT’S] SENTENCE LEGAL?
(Anders Brief at 3).
In his first and second issues, Appellant baldly asserts he did not enter
a valid guilty plea. Further, Appellant claims he was under a psychiatrist’s
care at the time of the plea hearing, and he failed to take his last two doses
of prescription medication before entering the plea. Appellant, however,
failed to preserve these claims by objecting during the plea colloquy or filing
a post-sentence motion to withdraw the plea. See Commonwealth v.
Lincoln, 72 A.3d 606 (Pa.Super. 2013), appeal denied, ___ Pa. ___, 87
A.3d 319 (2014) (explaining defendant wishing to challenge voluntariness of
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guilty plea on direct appeal must either object during plea colloquy or file
motion to withdraw plea within ten days of sentencing; failure to employ
either measure results in waiver). Moreover, Appellant cites nothing to
demonstrate how the absence of medication rendered him incompetent to
enter his plea.3 See Commonwealth v. Prendes, 97 A.3d 337 (Pa.Super.
2014), appeal denied, ___ Pa. ___, 105 A.3d 736 (2014) (stating
Pennsylvania law presumes defendant who entered guilty plea was aware of
what he was doing, and defendant bears burden of proving otherwise).
Therefore, Appellant’s first two issues are waived.
In his third issue, Appellant argues the court denied his right to
allocution prior to the imposition of sentence. Significantly, “a denial of the
right of allocution does not create a non-waivable challenge to the legality of
the sentence.” Commonwealth v. Jacobs, 900 A.2d 368, 376 (Pa.Super.
2006) (en banc), appeal denied, 591 Pa. 681, 917 A.2d 313 (2007). “[L]ike
most legal errors, it is nevertheless waivable under Pennsylvania law.” Id.____________________________________________
3
The record shows that Appellant was an active participant in the plea
proceedings. Specifically, the prosecutor informed the court that the parties
had negotiated a “stay away order,” prohibiting Appellant from contacting
Mr. Barr or Mr. Barr’s girlfriend. (See N.T. Plea and Sentencing Hearing at
8.) Appellant interjected, “Can I ask you a question, does that stay away
order work both ways?” (Id. at 11). The court responded that it did, and
Mr. Barr and his girlfriend could not antagonize Appellant. The court and
Appellant also discussed the consequences of violating the stay away order,
and the need for Appellant to take his medication as prescribed. At the
conclusion of this discussion, Appellant thanked the court for its concern.
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at 377. Here, Appellant failed to raise this issue with the trial court in the
first instance, so it is waived.4 See id.In his fourth issue, Appellant claims the offenses of PIC and terroristic
threats were graded as first degree misdemeanors. Appellant also insists
the court imposed illegal sentences. We disagree.
“Issues relating to the legality of a sentence are questions of law….”
Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal
denied, 598 Pa. 755, 955 A.2d 356 (2008). “The defendant or the
Commonwealth may appeal as of right the legality of the sentence.” 42
Pa.C.S.A. § 9781(a). See also Commonwealth v. Edrington, 780 A.2d
721 (Pa.Super. 2001) (maintaining legality of sentence claims cannot be
waived, where reviewing court has proper jurisdiction). When the legality of
a sentence is at issue on appeal, our “standard of review over such
questions is de novo and our scope of review is plenary.” Diamond, supra
at 256. “If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence must be
vacated….” Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.Super.
2011) (quoting Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa.Super.
2011)).
The Crimes Codes governs the sentencing of first degree
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4
The court imposed the sentence recommended as part of the plea
agreement.
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misdemeanors as follows:
§ 1104. Sentence of imprisonment for misdemeanors
A person who has been convicted of a misdemeanor
may be sentenced to imprisonment for a definite term
which shall be fixed by the court and shall be not more
than:
(1) Five years in the case of a misdemeanor of
the first degree.
* * *
18 Pa.C.S.A. § 1104(1).
Instantly, the court sentenced Appellant to time served to six (6)
months’ imprisonment for terroristic threats. For the PIC conviction, the
court imposed a consecutive term of two (2) years’ probation. Neither
sentence exceeded the statutory maximum allowed for a first degree
misdemeanor. See id. Therefore, Appellant is not entitled to relief on this
issue. See Pombo, supra. Following our own independent evaluation of
the record, we affirm and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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