Com. v. Staley, P. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PATRICK LEE STALEY,
Appellant No. 2154 MDA 2014
Appeal from the Judgment of Sentence entered September 2, 2014,
in the Court of Common Pleas of Luzerne County,
Criminal Division, at No: CP-40-CR-00000891-2014
BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 24, 2015
Patrick Lee Staley (“Appellant”) appeals from the judgment of
sentence imposed by the trial court after Appellant pled guilty to one count
of theft by unlawful taking of a motor vehicle, and one count of fleeing or
attempting to elude police.1 Appellant’s appointed counsel seeks to
withdraw, citing Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
The pertinent facts and procedural background of this case are as
follows: On February 24, 2014, officers from the Plains Township Police
Department were dispatched to the Mohegan Sun Casino in Luzerne County
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1
18 Pa.C.S.A. § 3921(a) and 75 Pa.C.S.A. § 3733(a).
*Retired Senior Judge specially assigned to the Superior Court.
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following a report of a vehicle theft. Affidavit of Probable Cause, 2/27/14.
Upon arrival, Officer William Poulos spoke with the victim, Stanley Grebeck,
who testified that he had arrived at the casino at approximately 10:18 p.m.,
and left his car, a blue Ford Focus, in the valet parking lot, with the keys in
the ignition. Id. Approximately two hours later, he returned to retrieve his
vehicle, and found that it was not in the valet parking lot. Id. Surveillance
video from the Mohegan Sun Casino revealed that at approximately 10:36
p.m., a white male, approximately 40 years of age, entered Mr. Grebeck’s
vehicle and drove it toward the casino exit.
On February 27, 2014, Officer Baranski of the Plains Township Police
Department observed a blue Ford Focus travelling on Miner Street in Plains,
Luzerne County, which matched the description of Mr. Grebeck’s vehicle.
Id. Officer Baranski also observed that the driver of the vehicle matched
the description of the person seen in surveillance footage driving the vehicle
from the casino. Officer Baranski alerted Officer Poulos, who arrived at
Miner Street and checked the vehicle registration. Id. Upon learning that
the registration was expired, the officers attempted to conduct a traffic stop
of the vehicle. Id. However, Appellant fled in the vehicle to Kidder Street
and eventually came to a stop on Jenks Lane, a dead end street, where
Appellant and an unidentified passenger exited the vehicle and fled on foot.
Id. Appellant was subsequently apprehended and charged with the
aforementioned crimes.
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On July 10, 2014, Appellant pled guilty to one count of theft by
unlawful taking, and one count of fleeing and eluding police. Following a
hearing on September 2, 2014, the trial court sentenced Appellant to a term
of imprisonment of twelve to twenty-four months for theft by unlawful
taking, and a consecutive three to six months for fleeing and eluding, for an
aggregate sentence of fifteen to thirty months of imprisonment.
On September 19, 2014, Appellant’s counsel filed a motion for
permission to file nunc pro tunc post-sentence motions, which the trial court
granted by order filed on September 23, 2014. Appellant filed post-sentence
motions on September 26, 2014, which the trial court denied on October 2,
2014. This appeal followed.
On November 17, 2014, Appellant’s counsel filed a notice of intent to
file an Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c). On
December 15, 2014, the trial court entered an order explaining that in light
of counsel’s November 17, 2014 statement of intent to file an
Anders/McClendon brief, it would not submit a Pa.R.A.P. 1925(a) opinion.
Appellant presents one issue for our review:
1. Whether the consecutive sentences imposed by the trial court
on Case No. 891 of 2014 are harsh and excessive?
Anders Brief at 1.
Appellant’s counsel has filed a brief pursuant to Anders and its
Pennsylvania counterpart, McClendon. See Anders, 386 U.S. 738;
McClendon, 434 A.2d at 1187. Where an Anders/McClendon brief has
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been presented, our standard of review requires counsel seeking permission
to withdraw pursuant to Anders to: (1) petition the court for leave to
withdraw stating that after making a conscientious examination of the record
it has been determined that the appeal would be frivolous; (2) file a brief
referring to anything that might arguably support the appeal, but which does
not resemble a “no merit” letter or amicus curiae brief; and (3) furnish a
copy of the brief to the defendant and advise him of his right to retain new
counsel or raise any additional points that he deems worthy of the court's
attention. Commonwealth v. McBride, 957 A.2d 752, 756 (Pa. Super.
2008). Counsel is required to submit to this Court “a copy of any letter used
by counsel to advise the appellant of the rights associated with the Anders
process.” Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super.
2007). Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009), appellant’s counsel must state in the Anders brief the reasons for
concluding that the appeal is frivolous. If these requirements are met, we
may then review the record to determine whether we agree with counsel’s
assessment.
In the instant case, by letter dated April 30, 2015, Appellant’s counsel
notified Appellant of her intent to file an Anders brief and petition to
withdraw with this Court, and informed Appellant of his rights to retain new
counsel and raise additional issues. That same day, Appellant’s counsel filed
an appropriate petition seeking leave to withdraw. Finally, Appellant’s
counsel has submitted an Anders brief to this Court, with a copy provided to
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Appellant. Accordingly, the technical requirements of Anders have been
met. We will therefore conduct our own independent examination of the
issue set forth in the Anders brief to determine if it is frivolous and whether
counsel should be permitted to withdraw.
Appellant’s sole argument on appeal is that the sentence imposed by
the trial court was excessive. Anders Brief at 5-8. A challenge to the
discretionary aspects of a sentence is not appealable as of right. Rather,
Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §
9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Here, Appellant has filed a timely notice of appeal, and preserved a
challenge to the discretionary aspects of his sentence by filing a post-
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sentence motion. In addition, Appellant has included in his brief a statement
pursuant to Pa.R.A.P. 2119(f). See Anders Brief at 5. We therefore
proceed to determine whether Appellant has raised a substantial question for
our review.
Appellant argues that the trial court abused its discretion by imposing
a harsh and excessive sentence when it denied Appellant’s request for
admission to the Salvation Army Rehabilitation Program rather than a
sentence of imprisonment. Anders Brief at 6.
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. Further:
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.
An appellant making an excessiveness claim raises a
substantial question when he 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.
When imposing a sentence, the sentencing court must
consider the factors set out in 42 [Pa.C.S.] § 9721(b), that is,
the protection of the public, gravity of offense in relation to
impact on victim and community, and rehabilitative needs of the
defendant. And, of course, the court must consider the
sentencing guidelines.
Commonwealth v. Caldwell, 2015 Pa. Super. 128 (May 29, 2015) (citations
and internal quotations omitted).
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Appellant argues that in making its sentencing determination, the trial
court should have taken into consideration the fact that Appellant had been
sober for six years preceding his relapse and the commission of his crimes,
and that Appellant had previously benefitted from the Salvation Army
Rehabilitation Program. Anders Brief at 6. See also Post-Sentence Motion,
9/26/14. Appellant asserts that the trial court’s failure to consider enrolling
him in the rehabilitation program rather than imposing a sentence of total
confinement, constituted an abuse of sentencing discretion. This Court has
made clear, however, that “a claim that a court did not weigh the factors as
an appellant wishes does not raise a substantial question.”
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).
Accordingly, Appellant’s assertion that the trial court did not properly weigh
the fact that he had previously benefitted from rehabilitation and had been
sober for an extended period, does not raise a substantial question for our
review.
Even if Appellant had raised a substantial question for our review, we
find no merit to his claim. At the sentencing hearing, the trial court heard
statements from Appellant’s counsel, who outlined Appellant’s prior criminal
history, including the fact that Appellant was on parole at the time he
committed the crimes in the present case, and requested that Appellant be
enrolled in the Salvation Army Rehabilitation Program. N.T., 9/2/14, at 3.
Additionally, the trial court heard from Appellant, who informed the trial
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court that he likely would not have committed the crimes if he had been
enrolled in a rehabilitation program, and indicated that he would benefit
greatly from such program and treatment. Id. at 6.
The trial court, which had the benefit of a pre-sentence investigation
report, nonetheless explained that because Appellant was already on
supervision at the time he committed the crimes, “it’s the conclusion of the
Court that [Appellant] is nonamenable to supervision at this time and ...
based upon that review that if he’s not incarcerated he’s likely to reoffend”,
and that “if any rehabilitation is going to take place at this point that it’s best
done at the state level.” Id. at 7-8. Accordingly, it is clear from the record
that the trial court in making its sentencing determination considered the
appropriate factors, including Appellant’s rehabilitative needs, the protection
of the public, and Appellant’s prior criminal history. We find no abuse of
discretion by the trial court.
Having reviewed the issue contained in the Anders brief, and after
independent and thorough review of the record, we find this appeal wholly
frivolous. Accordingly, we grant counsel’s petition to withdraw and affirm
the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
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