Com. v. Woods, G., Jr. ( 2019 )

J-S36023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GENE ALEL WOODS, JR. :
:
Appellant : No. 9 MDA 2019
Appeal from the Judgment of Sentence Entered November 29, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004652-2016
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 24, 2019
Appellant, Gene Alel Woods, Jr., appeals from the judgment of sentence
entered on November 29, 2018, in the Berks County Court of Common Pleas
following the revocation of his probation. Appellant’s counsel has filed a
petition to withdraw representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), which govern withdrawal from representation on direct
appeal. Appellant has not filed a response to counsel’s petition to withdraw.
Following our review, we grant counsel’s petition to withdraw and affirm the
judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
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On December 13, 2016, Appellant entered a negotiated guilty plea to
one count of disorderly conduct1 at Berks County Court of Common Pleas
Docket Number CP-06-CR-0004652-2016 (“Docket 4652 of 2016”), and he
was sentenced to one year of probation. On April 29, 2017, Reading Police
Officer Adam L. Babbitt filed a complaint and affidavit charging Appellant with
several violations of the Pennsylvania Crimes Code, docketed at Berks County
Court of Common Pleas Docket Number CP-06-CR-2446 of 2017 (“Docket
2446 of 2017”). On that docket, Appellant pled guilty to count one,
aggravated assault; count four, resisting arrest; and count five, false
identification to a law enforcement officer.2 He was sentenced to an aggregate
term of imprisonment of twenty-one to forty-two months of imprisonment for
counts one and four, followed by one year of probation for count five.
Thereafter, at Docket 4652 of 2016, the Berks County Office of Adult
Probation and Parole alleged Appellant violated his probation by failure to
report as directed, failure to notify change of address, having a new arrest,
and failure to comply with chemical testing. At the Gagnon II3 hearing,
Appellant admitted the probation violations. N.T., 11/29/18, at 2. The court
revoked Appellant’s probation, and in keeping with the recommendation of the
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1 18 Pa.C.S. § 5503(a)(1).
2 18 Pa.C.S. §§ 2702(a)(3), 5104, and 4914(a), respectively.
3 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (“Gagnon II”).
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Berks County Office of Adult Probation and Parole, imposed a sentence of
special probation for one year at Docket 4652 of 2016, consecutive to the
sentence at count five of Docket 2446 of 2017. Order, 11/29/18.
Appellant filed a pro se post-sentence motion on December 10, 2018,
which the trial court denied the next day, and a timely, counseled notice of
appeal. The trial court thereafter permitted counsel to withdraw and
appointed conflict counsel. Conflict counsel then advised that he would be
filing a petition to withdraw pursuant to Anders and Santiago. In its
Statement in Lieu of Opinion, the trial court submits that it conducted an
independent review of the record, and it “concurs with counsel’s determination
that no meritorious issues exist for direct appeal.” Statement in Lieu of
Opinion, 2/21/19, at 1.
Before we address any question raised on appeal, we must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal.
The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Id. at 1032 (citation omitted).
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In addition, our Supreme Court, in Santiago, 978 A.2d 349, stated that
an Anders 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 has complied with the requirements for withdrawal outlined in
Anders. Specifically, counsel requested to withdraw based upon his
determination that the appeal is wholly frivolous. Petition to Withdraw as
Counsel, 4/16/19, at ¶ 5. Additionally, counsel sent a letter to Appellant, and
he attached a copy of the letter to his motion.4 Counsel informed Appellant
that he has filed a motion to withdraw and an Anders brief, and he apprised
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4 Counsel’s initial letter to Appellant dated April 16, 2019, misinformed
Appellant regarding when he could proceed pro se or with new counsel.
Counsel’s subsequent clarification to Appellant pursuant to our order of April
23, 2019, again failed to inform Appellant of his right to immediately proceed.
See Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016) (clarifying
that counsel’s letter to client shall inform client that upon counsel’s filing of
petition to withdraw, client has immediate right to proceed in appeal pro se or
by privately retained counsel). Following our subsequent order filed June 27,
2019, counsel successfully informed Appellant by letter dated July 8, 2019, of
Appellant’s immediate right to proceed pro se or with privately retained
counsel. Appellant has not responded to counsel’s application to withdraw.
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Appellant of his rights in light of the motion to withdraw as counsel. Thus,
Appellant’s appellate counsel satisfied the requirements of Anders.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in 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.
Santiago, 978 A.2d at 361; Cartrette, 83 A.3d at 1032.
Counsel’s brief is sufficiently compliant with Santiago. It sets forth the
history of this case, outlines pertinent case authority, cites to the record, and
refers to an issue of arguable merit. Anders Brief at 5–8. Further, the brief
advances counsel’s conclusion that the appeal is frivolous and the reasons for
counsel’s conclusion. Id. at 9–11. Accordingly, we proceed to examine the
issue counsel identified in the Anders brief, and then we conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super.
2018) (en banc).
Counsel for Appellant has indicated that after review of the certified
record, there are no meritorious issues. Anders Brief at 8. However, counsel
set forth one possible issue on Appellant’s behalf:
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A. Did not the lower court abuse its sentencing discretion by
ordering Appellant to be placed on one year of probation
consecutive to another of Appellant’s cases following an informal
Gagnon II hearing where Appellant admitted a technical violation
of probation, namely: a new conviction?
Anders Brief at 5.
Appellant’s issue presents a challenge to the discretionary aspects of his
sentence, and it is well settled that “[t]he right to appellate review of the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). When an appellant challenges
the discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155,
163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)):
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. 708; (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).
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Id. at 170. Whether a particular issue constitutes a substantial question about
the appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001).
Appellant filed a timely appeal and preserved the issue in his post-
sentence motion. Appellant has not included a statement raising this issue in
his brief pursuant to Rule 2119(f). However:
[i]n the non-Anders context, the defendant must “preserve the
issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and
a Pa.R.A.P. 2119(f) statement.” Id. Where counsel files an
Anders brief, this Court has reviewed the matter even absent a
separate Pa.R.A.P. 2119(f) statement. See Commonwealth v.
Wilson, 396 Pa. Super. 296, 578 A.2d 523 (1990); see also
Commonwealth v. Lilley, 978 A.2d 995 (Pa. Super. 2009).
Hence, we do not consider counsel’s failure to submit a Rule
2119(f) statement as precluding review of whether Appellant’s
issue is frivolous.
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015); see also
Commonwealth v. Bynum-Hamilton, 135 A.3d 179 (Pa. Super 2016) (the
appellant’s failure to file a separate Rule 2119 statement where counsel has
sought to withdraw does not preclude review of whether the appellant’s issue
is frivolous). Thus, we consider whether Appellant has raised a substantial
question.
“[A]n appeal is permitted only after this Court determines that there is
a substantial question that the sentence was not appropriate under the
sentencing code.” Zeigler, 112 A.3d at 661 (quoting Cartrette, 83 A.3d at
1042). When considering the merits of a discretionary-aspects-of-sentencing
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claim, we analyze the sentencing court’s decision under an abuse-of-discretion
standard. Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super.
2013).5
Appellant asserts that the trial court abused its discretion in imposing a
sentence of probation consecutive, rather than concurrent to the sentence at
count five of Docket 2446 of 2017. This claim does not raise a substantial
question. We have stated:
A court’s exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010), appeal denied, 609 Pa. 685, 14 A.3d
825 (2011). Rather, the imposition of consecutive rather than
concurrent sentences will present a substantial question in only
“the most extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment.” Commonwealth v. Lamonda, 52
A.3d 365, 372 (Pa. Super. 2012), appeal denied, 621 Pa. 677, 75
A.3d 1281 (2013).
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en
banc).
Even if Appellant raised a substantial question, the issue is not
meritorious. The record reveals that Appellant’s guilty plea in 2016 to 18
Pa.C.S. § 5503, graded as a third degree misdemeanor, carried a statutory
maximum penalty of twelve months of imprisonment. The offense gravity
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5 We recognize that the sentencing guidelines do not apply to a revocation
sentence. 204 Pa. Code § 303.1(b); Commonwealth v. Pasture, 107 A.3d
21, 27 (Pa. 2014).
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score was one, and Appellant’s prior record score was five, Guideline Sentence
Form, 1/27/17, and the standard range minimum was RS–6 ± 3. 204 Pa.
Code § 303.16(a). Thus, the trial court’s original sentence following
Appellant’s guilty plea to disorderly conduct of one year of probation was in
the mitigated range and therefore, lenient.
Upon revocation of probation due to his conviction for aggravated
assault, resisting arrest, and false identification to law enforcement at Docket
2446 of 2017, Appellant’s revocation sentence of one year consecutive
probation does not remotely approach “clearly unreasonable,” as asserted by
the Commonwealth. Commonwealth’s Brief at 7. Appellant admitted that he
failed to adhere to the conditions of probation originally imposed upon him,
and the trial court, upon revocation of the probation, imposed a sentence of
probation once again, made consecutive to the sentence of Appellant’s new
crime. N.T., 11/29/18, at 2, 4. There was no abuse of discretion by the trial
court. Pasture, 107 A.3d at 28 (“We emphasize a trial court does not
necessarily abuse its discretion in imposing a seemingly harsher post-
revocation sentence where the defendant received a lenient sentence and then
failed to adhere to the conditions imposed on him.”).
Finally, we have independently reviewed the record in order to
determine if counsel’s assessment about the frivolous nature of the present
appeal is correct. Yorgey, 188 A.3d at 1195. After review of the issue raised
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by counsel6 and our independent review of the record, we conclude that an
appeal in this matter is frivolous.7 Accordingly, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/24/2019
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6 To the extent Appellant asserts in the body of his brief that prior counsel
was ineffective, Anders Brief at 10, Appellant acknowledges that claims of
ineffective assistance of counsel are to be deferred to PCRA review. Id.;
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).
7 When reviewing the outcome of a revocation proceeding, this Court is limited
to determining the validity of the proceeding, the legality of the judgment of
sentence imposed after probation revocation, and the discretionary aspects of
sentencing. Cartrette, 83 A.3d at 1035–1037.
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