Com. v. Shelton, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAYMOND W. SHELTON
Appellant No. 1343 MDA 2015
Appeal from the Judgment of Sentence entered June 29, 2015
In the Court of Common Pleas of Adams County
Criminal Division at No: CP-01-CR-0000732-2014; CP-01-CR-0001196-2014
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 22, 2016
Appellant, Raymond W. Shelton, appeals from the judgment of
sentence entered in the Court of Common Pleas of Adams County, following
his convictions of theft by deception and bad check.1 Appellant’s counsel
has filed a petition to withdraw, alleging that this appeal is wholly frivolous,
and has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1968)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review,
we affirm Appellant’s judgment of sentence, and grant counsel’s petition to
withdraw.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Respectively, 18 Pa.C.S.A. § 3922(a)(1), graded as a felony of the third
degree, and 18 Pa.C.S.A. § 4105(a)(1), graded as a misdemeanor of the
second degree.
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The trial court summarized the relevant background information as
follows.
On April 6, 2015, Appellant appeared before the [c]ourt with
counsel and entered pleas of guilty to theft by deception and bad
check. The pleas were entered and accepted by the [c]ourt
without any sentencing agreement. A pre-sentence investigation
was ordered. Sentencing ultimately occurred on June 29, 2015.
Based on the information contained in the pre-sentence
investigation and the comments of the Appellant and counsel,
Appellant was sentenced on the theft by deception conviction to
serve no less than one and a half nor more than five years in a
state correctional institution. On the bad check conviction, the
Appellant was sentenced to serve no less than one year nor
more than two years in a state correctional institution. The
sentences were imposed consecutively to each other and
consecutive to a sentence the Appellant was serving in the state
of Maryland.
Prior to imposing sentence, the sentencing court noted relevant
information in the pre-sentence investigation which indicated
Appellant had been convicted on at least 45 prior occasions for
similar conduct. At that time, the Court opined that efforts at
rehabilitation have obviously proved to be unsuccessful.
Nevertheless, the sentencing court exercised restraint as the
sentences which were imposed fell within the sentencing
guidelines. Specifically, the pre-sentence investigation revealed
that the theft conviction carried an offense gravity score of five
and a prior record score of five which provided for a standard
minimum range of 12 to 18 months.[2] The bad check conviction
carried an offense gravity score of two which, when coupled with
a prior record score of five, revealed a standard minimum
sentencing range of 1 to 9 months with an aggr[av]ated range of
up to 12 months.
Trial Court Opinion (T.C.O.), 11/19/15, at 1-2.
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2
A third degree felony has a maximum of seven years. 18 Pa.C.S.A.
§ 1103(3).
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Appellant timely filed a post-sentence motion for modification of his
sentence, which the trial court denied. On July 31, 2015, Appellant timely
filed a notice of appeal. The trial court and Appellant complied with
Pa.R.A.P. 1925.
Appellant’s counsel filed in this Court a motion to withdraw as counsel
along with an Anders brief, wherein counsel raises one issue for our review:
“Whether the lower court abused its discretion in sentencing Appellant to the
aggravated range on one case and the top of the standard guidelines on the
other, for an aggregate of two and a half (2 ½) to seven (7) years in state
prison.” Anders Brief at 6.
We must first address counsel’s petition to withdraw before reviewing
the merits of Appellant’s appeal. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc). It is well-established that, in
requesting a withdrawal, counsel must satisfy the following procedural
requirements: 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) provide a copy of the brief to the
defendant; and 3) advise the defendant that he or she has the right to retain
private counsel, proceed pro se, or raise additional arguments that the
defendant considers worthy of the court’s attention. Commonwealth v.
Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).
Instantly, counsel’s petition to withdraw from representation provides
that counsel reviewed the record and concluded that the appeal is frivolous.
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Furthermore, counsel notified Appellant that he was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
his Anders brief. Counsel also advised Appellant of his right to retain new
counsel, proceed pro se, or raise any additional points he deems worthy of
this Court’s attention. Accordingly, we conclude that counsel has satisfied
the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme 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.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates
that he has complied with the briefing requirements of Santiago. We,
therefore, conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met his 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
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appeal is in fact wholly frivolous.” Id. at 355 n.5. Thus, we now turn to the
merits of Appellant’s appeal.
Appellant challenges only discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa. Super. 2011). As this Court explained in Allen,
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.
Id.As Appellant has satisfied the first three requirements, we must
determine whether Appellant has presented a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code. “The
determination of what constitutes a substantial question must be evaluated
on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.
Super. 2011). “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.” Commonwealth v. Raven, 97 A.3d 1244, 1253
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(Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (internal
citations and quotations omitted). However,
[i]f the sentence imposed is within statutory limits, there is no
abuse of discretion, unless the sentence is manifestly excessive
as to inflict too severe a punishment. Absent an abuse of
discretion, a sentence imposed by the trial court will not be
disturbed on appeal.[3] In imposing sentence, the sentencing
court must consider the particular circumstances of the offense
and the character of the defendant in reaching its determination.
Commonwealth v. Martin, 477 A.2d 555, 557 (Pa. Super. 1984) (citations
omitted).
Appellant argues his sentences, although within the guidelines, were
based primarily on his prior record, which was already factored into the
guidelines. Anders Brief at 10. Appellant also argues there were mitigating
circumstances and he took responsibility for actions so he “should have
received some benefit for not going to trial.” Id. at 11. Appellant also
points out the Commonwealth only requested a sentence of one to three
years in state prison. Id. Appellant further argues he raises a substantial
question, asserting “the aggregate sentence of two and a half (2½) to seven
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3
“In this context, an abuse of discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.” Commonwealth v. Zirkle, 107 A.3d
127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015).
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(7) years is not consistent with the gravity of the violation, the need for
public protection, and the defendant’s needs for rehabilitation.” Id.As Appellant acknowledges, he was sentenced within the guidelines on
both of his convictions. In sentencing him, the trial court based its
sentencing scheme on Appellant’s threat to public safety and his history of
repeated failures at rehabilitation, stating, “Your claims of you’re tired of
breaking the law really are hollow. A number jumps off the sheet, quite
frankly, I’ve never seen one so high as 45 criminal convictions,” and
“[Appellant] has 45 prior convictions for similar conduct. Efforts at
rehabilitation have obviously proved to be unsuccessful.” N.T. Sentencing,
6/29/15, at 6-7; T.C.O., 11/19/15, at 1-4. Accordingly, Appellant’s sentence
was not “manifestly excessive as to inflict too severe a punishment” and
Appellant has not demonstrated an abuse of the trial court’s discretion. See
Martin, 477 A.2d at 557-58 (Sentence not manifestly excessive when within
guidelines and trial court considered case’s circumstances, gravity of
offense, appellant’s rehabilitative needs, and protection of public.) As such,
Appellant fails to raise a substantial question for our review.
We have conducted an independent review of the record and
addressed Appellant’s arguments on appeal. Based on our conclusions
above, we agree with counsel that the issue Appellant seeks to litigate in this
appeal is wholly frivolous. Also, we do not discern any non-frivolous issues
that Appellant could have raised. We, therefore, grant counsel’s petition to
withdraw and affirm the judgment of sentence.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
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