Com. v. Kroninger, N. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
NATHANIEL ANDREW KRONINGER, :
:
Appellant : No. 1531 EDA 2014
Appeal from the Judgment of Sentence Entered May 2, 2014,
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006633-2012
BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 25, 2015
Nathaniel Andrew Kroninger (Appellant) appeals from the judgment of
sentence entered on May 2, 2014, following his open guilty plea to one count
of unlawful contact with a minor and one count of criminal use of a
communication facility. In addition, Appellant’s counsel seeks to withdraw
from representation pursuant to Anders v. California, 386 U.S. 738(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon
review, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
The factual basis for Appellant’s guilty plea was stated as follows:
Between December of 2011 and August of 2012,
[Appellant] engaged in numerous online conversations with a
law enforcement officer who was in Montgomery County,
Pennsylvania, who was acting in the performance of his duties
* Retired Senior Judge assigned to the Superior Court.
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and who had assumed the identity of a minor, specifically a 14-
year-old female.
[Appellant] engaged in numerous online conversations
with this officer purporting to be a minor for the purpose of
engaging in conduct specifically prohibited by Chapter 31, …
including, among other things, involuntary deviate sexual
intercourse with a person under the age of 16 and whom
[Appellant] would have been four or more years older than.
… [O]n August 8th, 2012, [Appellant] did arrange online to
meet with this purported 14-year-old female and he did travel to
a location in Montgomery County to meet this female for the
purpose of engaging in the prohibited conduct as described
above[. Appellant’s] date of birth is February 14th, 1982.
N.T., 12/17/2013, at 10-11.
As a result of these events, Appellant pled guilty to the above charges
on December 17, 2013. On May 2, 2014, Appellant was sentenced to four to
eight years’ incarceration, followed by seven years’ probation. On May 14,
2014, notwithstanding that Appellant was represented by the Montgomery
County Public Defender’s Office, Appellant filed a pro se “Notice of Appeal for
Sentence Re-Consideration.” Therein, Appellant sought a reduced sentence
and appointment of counsel. On May 19, 2014, the trial court issued an
order directing the filing of a 1925(b) statement. On May 27, 2014,
Attorney Timothy Wile of the Montgomery County Public Defender’s Office
entered his appearance “solely as Appellate Counsel” on behalf of Defendant.
That same day, Attorney Wile filed an amended notice of appeal. On June
12, 2014, the trial court issued an order that vacated its May 19, 2014 order
and further ordered that Appellant file a 1925(b) statement within 21 days.
In response, on June 13, 2014, counsel filed a statement, pursuant to
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Pa.R.A.P. 1925(c)(4), of his intent to withdraw his representation of
Appellant. The trial court then filed its Pa.R.A.P. 1925(a) opinion.
As a preliminary matter, we address counsel’s petition to withdraw.
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting
Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997))
(“When faced with a purported Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.”).
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has expounded further upon the
requirements of Anders:
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.
Based upon our examination of counsel’s petition to withdraw and his
Anders brief, we conclude that counsel has substantially complied with the
above requirements.1 Once “counsel has met these obligations, ‘it then
becomes the responsibility of the reviewing court to 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, 2015
PA Super 69, 2015 WL 1612010 at *2 (Pa. Super. filed April 10, 2015),
quoting, Santiago, 978 A.2d at 354 n. 5.2
1
Appellant has not responded to counsel’s petition to withdraw.
2
Speaking for myself only and not as the conduit of this Court’s decision,
see Commonwealth v. King, 57 A.3d 607, 633 n. 1 (Pa. 2012) (Saylor, J.,
concurring) (discussing the precedent for a special concurrence by the
author of the majority opinion), I acknowledge that the law of this
Commonwealth now provides that this Court, when confronted with an
Anders brief, must comb the record in search of issues of arguable merit
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In his brief, Appellant’s counsel states one issue that might arguably
support an appeal: “Did the trial court abuse its discretion when it sentenced
Appellant to a term of four (4) to eight (8) years of total confinement with
respect to his conviction for unlawful contact with a minor, graded as a
felony of the first degree?” Anders Brief at 5 (unnecessary capitalization
that were not raised by counsel. See Commonwealth v. Flowers, 2015
PA Super 69, 2015 WL 1612010 at *2 (Pa. Super. filed April 10, 2015)
(“[T]he reviewing court must make certain that appointed counsel has not
overlooked the existence of potentially non-frivolous issues.”). I write
separately to reiterate my disagreement with that opinion’s holding as to
this Court’s duty.
We accept in all other criminal cases that counsel has put forth the
appropriate issues and arguments and, if not, that the PCRA is available to
the defendant for obtaining relief. See, e.g., Commonwealth v. Koehler,
914 A.2d 427, 438 (Pa. Super. 2006) (“[I]t is not this Court’s duty to
become an advocate for an appellant and comb through the record to assure
the absence of trial court error.”). In an Anders case, to “vindicate[] the
right to counsel” by “safeguard[ing] against a hastily-drawn or mistaken
conclusion of frivolity[,]” Santiago, 978 A.2d at 361, our Supreme Court
has added the additional protection of requiring the attorney to certify and
demonstrate his or her thorough review of the record and applicable law
before we will allow counsel to withdraw.
Now, under Flowers, this Court not only can, but must, effectively act
as an advocate for a criminal defendant whose counsel seeks to withdraw.
Not only does this render meaningless counsel’s efforts under Santiago, but
it results in the unnecessary, unwarranted, and patently unfair disparate
treatment of criminal defendants by this Court. See id. at *5 (Strassburger,
J., dissenting) (quoting Commonwealth v. Washington, 29 A.3d 846 (Pa.
Super. 2011) (Colville, J., concurring, unpublished memorandum at 6)
(“[T]he purpose of Anders is to provide equal, not extra, representation to
indigent defendants, regardless of their counsel’s assessment of the merits
of their appeals.”).
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omitted). This issue implicates the discretionary aspects of Appellant’s
sentence.3
Where an appellant challenges the discretionary aspects of a sentence,
there is no automatic right to appeal, and an appellant’s appeal should be
considered to be 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 (Pa. Super. 2010):
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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)).
Instantly, it appears that Appellant has waived his discretionary-
aspects-of-sentencing-claim for failing to preserve it at sentencing or in a
3
Because the plea agreement was open as to his sentence, Appellant is not
precluded from challenging the discretionary aspects of sentencing. See
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009).
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post-sentence motion pursuant to Rule 720.4 See Commonwealth v.
Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006) (quoting
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (“[I]ssues
challenging the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.”).
Assuming arguendo that the issue is preserved, however, we conclude
that Appellant is not entitled to relief. The Anders brief includes a Rule
2119(f) statement, wherein Appellant claims that his sentence “is unduly
harsh and excessive [and] too severe for the underlying conduct that formed
the basis of his conviction, i.e., an internet sting run by the Office of
Attorney General where no actual minor was ever at risk.” Anders Brief at
16.
“The determination of whether a substantial question exists must be
determined on a case-by-case basis.” Commonwealth v. Hartman, 908
A.2d 316, 320 (Pa. Super. 2006) (citation omitted). This Court has
4
As stated above, the trial court treated Appellant’s “Notice of Appeal for
Sentence Re-Consideration” as a notice of appeal. Given the filing’s title, the
relief requested therein, and the time in which it was filed, it is unclear
whether Appellant’s “Notice of Appeal for Sentence Re-Consideration” was
Appellant’s attempt at filing a notice of appeal or a post-sentence motion.
The curious nature of this filing is made only more salient given that,
although it appears that Appellant was notified of his post-sentence and
appellate rights at the guilty plea proceeding to some degree, N.T.,
12/17/2013, at 8-10, he was not advised of those rights following
sentencing in compliance with Pa.R.Crim.P. 704.
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explained that: “[a] substantial question exists where an appellant advances
a colorable argument that the sentencing judge’s actions [were] either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Id.(quoting Commonwealth v. Koren, 646 A.2d 1205, 1208 (Pa. Super.
1994)). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Commonwealth v. Goggins, 748
A.2d 721, 726 (Pa. Super. 2000) (en banc) (emphasis in original).
A claim of a harsh or excessive sentence can, at times, raise a
substantial question. See Commonwealth v. Kalichak, 943 A.2d 285, 292
(Pa.Super. 2008). However, this is not such a case:
When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. … Where the sentencing court had the benefit of a
presentence investigation report (“PSI”), we can assume the
sentencing court was aware of relevant information regarding
the defendant’s character and weighed those considerations
along with mitigating statutory factors. Further, where a
sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the
Sentencing Code.
Moury, 992 A.2d at 171 (some internal quotation marks and citations
omitted). Here, the sentencing court stated that it had reviewed the PSI.
N.T., 5/2/2014, at 8. The sentencing court then sentenced Appellant in the
standard range. Thus, under our case law, the sentence is not excessive or
unreasonable. See Moury, supra; see also Commonwealth v. Cruz-
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Centeno, 668 A.2d 536, 545-46 (Pa. Super. 1995) (stating combination of
PSI and standard range sentence, absent more, cannot be considered
excessive or unreasonable).
Based on the foregoing, we conclude that Appellant’s issue challenging
the discretionary aspects of his sentence is frivolous. Moreover, we have
conducted a “a full examination of the proceedings” and conclude that “the
appeal is in fact wholly frivolous.” Flowers, 2015 PA Super 69, 2015 WL
1612010 at *2. Thus, we affirm the judgment of sentence and grant
counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
P.J.E. Bender concurs in the result.
Judge Donohue concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2015
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