Com. v. Shorter, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERIC SHORTER
Appellant No. 2603 EDA 2014
Appeal from the Judgment of Sentence August 26, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008464-2011
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED JULY 28, 2015
Appellant, Eric Shorter, appeals from the judgment of sentence
entered on August 26, 2014, following a violation of probation hearing.
Shorter argues the sentencing court committed an abuse of discretion.
Specifically, by imposing a manifestly excessive sentence by directing that
the sentence of one to two years’ incarceration imposed following the
revocation of his probation be served consecutive to the term of twenty-nine
to fifty-eight years’ incarceration imposed in an unrelated homicide matter.
Additionally, his court-appointed counsel, John Martin Belli, Esquire, has filed
an application to withdraw as counsel pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We affirm and grant counsel’s petition to withdraw.
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In 2012, Shorter pled guilty to the charge of possession with intent to
deliver a controlled substance for which the trial court sentenced him to one
to twelve months’ imprisonment, followed by four years’ probation.
In 2013, Shorter was tried and convicted of terroristic threats. In
2014, he pled guilty to third degree murder and related gun charges. He
received an aggregate sentence of twenty-nine to fifty-eight years’
incarceration.1
Because of the 2013 and 2014 convictions, the court subsequently
revoked Shorter’s probation after a hearing and re-sentenced him to a term
of one to two years’ imprisonment, to run consecutively to the sentence
imposed for the third degree murder conviction and other crimes.
Shorter did not file a post-sentence motion to the revocation sentence,
but filed a timely notice of appeal. Appointed counsel filed in this Court a
motion to withdraw as counsel and an Anders brief in support thereof.
When court-appointed counsel seeks to withdraw from representation
on appeal, counsel must meet the following requirements.
[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
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1
It is unclear from the record whether the terroristic threats charge was
included in this aggregate sentence or if it received its own sentence. It
makes no difference for our purposes here.
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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. 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 appeal is in fact wholly frivolous.” Id. at 355 n.5 (citation omitted).
Here, counsel has complied with the procedure laid out in Santiago.
Counsel filed a motion seeking permission to withdraw as counsel,
concluding that after careful review he found the appeal to be wholly
frivolous. Counsel also submitted a brief referring to the sole issue on appeal
challenging the discretionary aspect of Shorter’s sentence. Finally, counsel
furnished a copy of the Anders Brief to Shorter and advised him of his
rights.
Since counsel has complied with the requirements for withdrawing as
counsel, we may now proceed to examine the claim set forth in the Anders
Brief. Shorter argues that the trial court abused its discretion in sentencing
him to a consecutive term of imprisonment following his probation violation.
Our standard when reviewing a sentence imposed following the
revocation of probation is as follows.
Our review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. Also, upon sentencing following a
revocation of probation, the trial court is limited only by the
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maximum sentence that it could have imposed originally at the
time of the probationary sentence.
Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citation
omitted). See also 42 Pa.C.S.A. § 9771(b). “[T]he imposition of sentence
following the revocation of probation is vested within the sound discretion of
the trial court, which, absent an abuse of discretion, will not be disturbed on
appeal.” Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013)
(citations omitted).
Shorter challenges the discretionary aspects of his sentence. Our
scope of review in an appeal from a revocation sentencing includes
discretionary sentencing challenges. See Commonwealth v. Cartrette, 83
A.3d 1030, 1034 (Pa. Super. 2013) (en banc). Therefore, Shorter’s claim is
properly before us.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test.
We 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
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question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
We evaluate the determination of a substantial question on a case-by-
case basis. See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.
2011). “A substantial question will be found where an appellant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted). “[W]e cannot look
beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d at 1, 10 (Pa. Super. 2013) (citation
omitted).
Shorter claims that the trial court abused its discretion and imposed a
manifestly excessive sentence in imposing a consecutive, rather than
concurrent sentence, for his probation violation. The decision whether to
impose consecutive or concurrent sentences is left to the sound discretion of
the trial court. See Prisk, 13 A.3d at 533. “Any challenge to the exercise of
this discretion ordinarily does not raise a substantial question.” Id. (citation
omitted). “The imposition of consecutive, rather than concurrent, sentences
may raise a substantial question in only the most extreme circumstances,
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such as where the aggregate sentence is unduly harsh, considering the
nature of the crime and the length of imprisonment.” Commonwealth v.
Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010) (citation omitted)
(emphasis added).
That is simply not the case here. Shorter has not raised a substantial
question. Considering the nature of his crimes that resulted in the revocation
of his probation—namely, murder—the new sentence of one to two years’
imprisonment to run consecutive to his other sentence, is not unduly harsh.
Accordingly, we agree with counsel that this claim is frivolous.
After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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