Com. v. Jennings, H. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HALSTON ANDRE JENNINGS
Appellant No. 1987 EDA 2014
Appeal from the Judgment of Sentence June 4, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000352-2007;
CP-15-CR-0003343-2007
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 14, 2015
Appellant, Halston Andre Jennings, appeals from the judgment of
sentence entered in the Chester County Court of Common Pleas, following
revocation of his probation. We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this appeal are as follows.
On June 19, 2007, Appellant pled guilty to possession of drug paraphernalia
at docket CP-15-CR-0000352-2007 (“352-2007”), and the court sentenced
him to twelve months’ probation. On January 31, 2008, Appellant pled
guilty to driving under the influence of a controlled substance (“DUI”) and
firearms not to be carried without a license at docket CP-15-CR-0003343-
2007 (“3343-2007”). That same day, the court sentenced Appellant to
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seventy-two hours’ to six months’ imprisonment for DUI and a concurrent
twelve months’ probation for firearms not to be carried without a license,
both to be served consecutively to Appellant’s separate sentence at docket
109-2008.1 Appellant’s supervision was set to expire on July 26, 2012.
While under supervision, Appellant violated his probation on docket
352-2007. After a hearing on February 15, 2008, the court revoked
Appellant’s probation and resentenced him to twelve months’ probation,
consecutive to Appellant’s sentence at docket 109-2008. Appellant’s
reinstated probation was set to expire on July 26, 2012. On July 12, 2012,
while Appellant was still under supervision, a petition was filed to find
Appellant had violated his probation at dockets 352-2007 and 3343-2007.
Thereafter, on August 9, 2012, the court revoked Appellant’s probation on
both dockets, and resentenced him to twelve months’ probation at docket
352-2007, and twelve months’ probation at docket 3343-2007, to be served
concurrently. Appellant’s reinstated probation at both dockets was set to
expire on August 1, 2013.
On May 21, 2013, a petition was filed to find Appellant had again
violated his probation at dockets 352-2007 and 3343-2007. The petition
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1
On January 31, 2008, Appellant also pled guilty to firearms not to be
carried without a license at docket 139-2008, and possession with intent to
deliver (“PWID”) at docket 109-2008. That same day, the court sentenced
Appellant at docket 139-2008 to twelve to twenty-four months’
imprisonment, and six to twelve months’ imprisonment at docket 109-2008,
consecutive to docket 139-2008.
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alleged Appellant had been found in possession of illegal drugs on February
11, 2013 and April 16, 2013, and that Appellant had been arrested in
Delaware County on April 16, 2013, and was charged with five counts of
PWID, five counts of possession of a controlled substance, five counts of
possession of drug paraphernalia, and five counts of criminal use of a
communication facility. The court conducted a Gagnon II2 hearing on June
4, 2014, and revoked Appellant’s probation at dockets 352-2007 and 3343-
2007. At docket 352-2007, the court resentenced Appellant to six to twelve
months’ imprisonment. At docket 3343-2007, the court resentenced
Appellant to two and one-half to five years’ imprisonment, consecutive to his
sentence at docket 352-2007.
On July 1, 2014, Appellant filed a petition for nunc pro tunc relief in
which he requested permission to file an otherwise untimely post-sentence
motion. That same day, Appellant timely filed a notice of appeal. The court
ordered Appellant on July 3, 2014, to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On August 5, 2014,
the court entered an order regarding Appellant’s non-compliance with the
court’s Rule 1925(b) order, and deemed all appellate issues waived. The
court also concluded Appellant’s contemporaneous filing of a notice of appeal
with his petition for nunc pro tunc relief divested the court of jurisdiction to
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Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973).
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rule on Appellant’s petition. Thereafter, on August 28, 2014, this Court
remanded to determine the issue of Appellant’s legal representation on
appeal. After conducting an evidentiary hearing, the court appointed a
public defender to represent Appellant on appeal. On October 14, 2014, the
court again ordered Appellant to file a Rule 1925(b) statement, and
Appellant’s counsel filed a notice of intent to file an Anders brief.
Appellant’s counsel subsequently filed a petition to withdraw in this Court on
March 6, 2015.
As a preliminary matter, appellate counsel seeks to withdraw her
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) 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
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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:
Neither Anders nor McClendon[3] 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.
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Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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Id. at 178-79, 978 A.2d at 361.
Instantly, counsel filed a petition to withdraw. The petition states
counsel conducted a conscientious examination of the record and determined
the appeal is wholly frivolous. Counsel notified Appellant of counsel’s
request to withdraw. Counsel also supplied Appellant with a copy of the
brief and a letter explaining Appellant’s right to retain new counsel or to
proceed pro se to raise any additional points that Appellant deems worthy of
this Court’s attention. (See Letter to Appellant, dated March 2, 2015,
attached to Petition to Withdraw as Attorney of Record.) In the Anders
brief, counsel provides a summary of the facts and procedural history of the
case. Counsel’s argument refers to relevant law that might arguably support
Appellant’s discretionary aspects of sentencing issues raised on appeal.
Counsel further states the reasons for her conclusion that the appeal is
wholly frivolous. Therefore, counsel has substantially complied with the
requirements of Anders and Santiago.
As Appellant has filed neither a pro se brief nor a brief with privately
retained counsel, we review this appeal based on the issues raised in the
Anders brief:
DOES THE IMPOSITION OF A 2½-5 YEAR STATE
SENTENCE AND A 6-12 MONTH INCARCERATION
SENTENCE FOR PROBATION VIOLATIONS IN A FIREARM
CARRIED WITHOUT A LICENSE CASE AND A POSSESSION
OF PARAPHERNALIA CASE RESPECTIVELY RAISE A
SUBSTANTIAL QUESTION THAT THE SENTENCING CODE
WAS VIOLATED BY THE SENTENCING COURT WHICH
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IMPOSED THE SENTENCES AFTER A DECISION THAT
APPELLANT HAD FAILED TO MEET TERMS OF THE COURT’S
PROBATION SUPERVISION WHEN CONVICTED OF FOUR
COUNTS OF POSSESSION WITH INTENT TO DELIVER IN
DELAWARE COUNTY AND ONE COUNT OF POSSESSION
WITH INTENT TO DELIVER AND RESISTING ARREST IN
CHESTER COUNTY? ARE SUCH SENTENCES AN ABUSE OF
THE SENTENCING COURT’S DISCRETION?
IF THIS HONORABLE COURT WERE TO FIND THAT NO
SUBSTANTIAL QUESTION EXISTS, APPELLANT’S CLAIM IS
WITHOUT MERIT. A FINDING BY THIS HONORABLE
COURT THAT A SUBSTANTIAL QUESTION EXISTS, BUT THE
SENTENCING COURT DID NOT ABUSE ITS WIDE
DISCRETION IN SENTENCING IS ALSO TANTAMOUNT TO A
FINDING THAT APPELLANT’S CLAIM LACKS MERIT.
(Anders Brief at 5).
In his issues combined, Appellant argues his aggregate sentence of
eight and one-half to seventeen years’ imprisonment, followed by at least
two years’ probation, is manifestly excessive.4 Specifically, Appellant claims
his aggregate sentence constitutes too severe a punishment because the
court imposed consecutive sentences, which he insists raises a substantial
question. Appellant concludes the court abused its discretion. As presented,
Appellant challenges the discretionary aspects of his revocation sentence.
See Commonwealth v. Prisk, 13 A.3d 526 (Pa.Super. 2011) (stating
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Appellant’s aggregate sentence includes the revocation sentences of six to
twelve months’ imprisonment and two and one-half to five years’
imprisonment at dockets 352-2007 and 3343-2007, respectively. Appellant
mistakenly also counts an unrelated, separate sentence of five and one-half
to eleven years’ imprisonment imposed at Chester County docket 4245-
2013.
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generally allegations regarding sentencing court’s imposition of consecutive
or concurrent sentence challenges discretionary aspects of sentencing);
Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim
that sentence is manifestly excessive challenges discretionary aspects of
sentencing).
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding and the legality of the
judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d
1021 (Pa.Super. 2005). Notwithstanding the stated scope of review
suggesting only the legality of a sentence is reviewable, an appellant may
also challenge the discretionary aspects of a sentence imposed following
revocation. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).
See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)
(en banc) (discussing scope of review following revocation proceedings
includes discretionary sentencing claims).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Sierra, supra. Prior to reaching the
merits of a discretionary sentencing issue:
[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
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Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). The concise statement must indicate “where the sentence falls in
relation to the sentencing guidelines and what particular provision of the
code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.
2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.
2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). “The
requirement that an appellant separately set forth the reasons relied upon
for allowance of appeal ‘furthers the purpose evident in the Sentencing Code
as a whole of limiting any challenges to the trial court’s evaluation of the
multitude of factors impinging on the sentencing decision to exceptional
cases.’” Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super.
1989) (en banc).
[O]nly where the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence
violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process, will
such a statement be deemed adequate to raise a
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substantial question so as to permit a grant of allowance of
appeal of the discretionary aspects of the sentence. See
[Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d
225, 244 (1999)] (party must articulate why sentence
raises doubts that sentence was improper under the
Sentencing Code).
Mouzon, supra at 435, 812 A.2d at 627.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the
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.” Sierra, supra at 912-13. A claim that a sentence is
manifestly excessive might raise a substantial question if the appellant’s
Rule 2119(f) statement sufficiently articulates the manner in which the
sentence imposed violates a specific provision of the Sentencing Code or the
norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d
at 627. Generally, any challenge to a sentencing court’s imposition of a
consecutive sentence, rather than a concurrent one, does not raise a
substantial question. Prisk, supra at 533.
“In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.”
Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). A
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sentence should not be disturbed where it is evident the court was aware of
the appropriate sentencing considerations and weighed them in a meaningful
fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000).
The Sentencing Guidelines do not apply to sentences imposed
following revocation of probation. Commonwealth v. Ferguson, 893 A.2d
735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196(2006). “[U]pon sentencing following a revocation of probation, the trial
court is limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence.” Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a
defendant to total confinement after revoking probation if the defendant was
convicted of another crime, the defendant’s conduct indicates that it is likely
that he will commit another crime if he is not imprisoned, or such a sentence
is essential to vindicate the court’s authority. Commonwealth v. Crump,
995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475(2010).
Instantly, Appellant failed to file a timely post-sentence motion to
preserve his sentencing challenges. See Commonwealth v. Mann, 820
A.2d 788 (Pa.Super. 2003) (stating issues that challenge discretionary
aspects of sentencing are generally waived if they are not raised during
sentencing proceedings or in post-sentence motion). Furthermore, upon
review of Appellant’s Rule 2119(f) statement, we observe Appellant failed to
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meet the minimal requirements under Rule 2119(f). Appellant’s Rule
2119(f) statement baldly asserts Appellant’s revocation sentences were
improper without articulating why or indicating which particular provision of
the sentencing code his revocation sentences violate. See Kiesel, supra.Because Appellant failed to file a timely post-sentence motion and his Rule
2119(f) statement is completely inadequate, Appellant has arguably waived
his sentencing issues. See Mann, supra; Mouzon, supra. See also
Commonwealth v. Cannon, 954 A.2d 1222 (Pa.Super. 2008) (reiterating
inadequate Rule 2119(f) statement constitutes failure to raise substantial
question as to discretionary aspects of sentence).
Moreover, even if properly preserved, Appellant’s discretionary aspects
of sentencing claims concerning consecutive sentencing do not raise
substantial questions.5 See Mouzon, supra; Prisk, supra. Based upon
the foregoing, we conclude Appellant’s revocation sentences should remain
undisturbed. See Hoover, supra. Accordingly, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
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5
See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009)
(explaining Anders requires some further review of issues otherwise waived
on appeal).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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