Com. v. Chapman, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN CHRIS CHAPMAN :
:
Appellant : No. 624 MDA 2018
Appeal from the Judgment of Sentence March 14, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002210-2017
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 09, 2019
Appellant, Kevin Chris Chapman, appeals from the judgment of sentence
entered following his convictions of possession with intent to deliver a
controlled substance and endangering the welfare of children.1 In addition,
appellate counsel has filed a petition to withdraw her representation and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a
withdrawal from representation on direct appeal. We grant counsel’s petition
to withdraw and affirm the judgment of sentence.
The trial court summarized the history of this case as follows:
On December 14, 2017, [Appellant] pled guilty to one count
of possession with intent to deliver crack cocaine and one count
of endangering the welfare of children. The charges arose on
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1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 4303.
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* Retired Senior Judge assigned to the Superior Court.
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September 15, 2017, when [Appellant] conducted a drug
transaction in his car in the presence of his three children, who
were ten, six and six months old. When the police searched
[Appellant], he had 11.6 grams of crack cocaine in his possession.
On March 14, 2018, [Appellant] was sentenced to an
aggregate sentence of 4 to 10 years. [Appellant’s] counsel
represented that [Appellant] was having financial trouble, and
that he loves his children and resorted to this activity because he
was trying to keep a roof over their heads. Transcript of March
14, 2018 Sentencing at 3. [Appellant] also stated that he was
just trying to make sure his wife and kids were not homeless. Id.
at 4. The court noted that [Appellant] expressing concern about
his wife and kids, when he came from his home in New York to
Pennsylvania with two children and an infant in the car with him
to make a drug sale hardly sounds like concern for his children.
Id. The court asked whether he was aware of how a drug deal
can go bad and turn into a dangerous situation, and [Appellant]
said that he was. Id. The court stated that this was purely a
financial situation and one in which he was exposing three children
to danger. Id. at 5. The court also noted that he was on New
York State Parole at the time, and that he appeared to be here for
the sole purpose of making money. Id. The court also stated that
his assets include not only a home, but also a 2013 Porsche and
a 2015 Mercedes, and if he needed money to save his house, he
could have sold the Porsche instead of drugs. Id. at 5-6.
On the charge of possession of a controlled substance with
intent to deliver, the court sentenced [Appellant] to 3 to 8 years.
Id. at 6. On the count of endangering the welfare of children, the
court sentenced [Appellant] to 1 to 2 years, consecutive to the
first sentence. Id. The aggregate sentence was thus 4 to 10
years. The court noted that the sentence for the possession with
intent to deliver charge was in the aggravated range because this
was purely a financial enterprise on [Appellant’s] part, he was not
an addict, and he has absolutely no ties to Lackawanna County
and obviously came here specifically to sell drugs. Id. at 6-7. The
court stated that it took into consideration the nature and gravity
of the offense, [Appellant’s] specific actions, and his rehabilitative
needs, which are minimal since he does not have a drug habit. Id.
at 7.
On March 19, 2018, [Appellant] filed a motion for
reconsideration which was denied that same date. On April 6,
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2018, [Appellant] filed a Notice of Appeal, and on April 9, 2018,
this court ordered [Appellant] to file a concise statement of the
matters complained of on appeal within 21 days pursuant to
Pa.R.A.P. 1925(b). On April 30, 2018, [Appellant] filed a Concise
Statement of Matters Complained of on Appeal.
Trial Court Opinion, 6/12/18, at 1-3. The trial court likewise complied with
Pa.R.A.P. 1925(a).
As noted, counsel has filed a petition to withdraw from representation.
Before we address any questions raised on appeal, we must resolve appellate
counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030
(Pa. Super. 2013) (en banc). There are procedural and briefing requirements
imposed upon an attorney who seeks to withdraw on direct appeal. The
procedural mandates are that counsel must:
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) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Id. at 1032 (citation omitted).
In this case, those directives have been satisfied. Within the petition to
withdraw, counsel averred that she conducted a conscientious review of the
record and pertinent legal research. Following that review, counsel concluded
that the present appeal is frivolous. Counsel sent Appellant a copy of the
Anders brief and petition to withdraw, as well as a letter, a copy of which is
attached to the petition to withdraw. In the letter, counsel advised Appellant
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that he could represent himself or that he could retain private counsel.
Appellant has not filed any additional documents with this Court.
We now examine whether the Anders brief satisfies the Supreme
Court’s dictates in Santiago, which provide that:
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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. The brief sets forth the
procedural history of this case, outlines pertinent case authority, and
discusses counsel’s conclusion that the appeal is frivolous. We thus conclude
that the procedural and briefing requirements for withdrawal have been met.
Counsel has identified the following two issues that Appellant believes
entitle him to relief:
A. Whether the sentencing court imposed a sentence on the
[possession with intent to deliver] charge in the aggravated range
where there were no aggravating circumstances surrounding the
commission of the crime?
B. Whether the sentences imposed were inappropriately harsh,
excessive, unreasonable and an abuse of discretion?
Anders Brief at 4. These two issues raise challenges to the discretionary
aspects of sentencing.
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“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:
[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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Whether a particular issue constitutes a substantial question about the
appropriateness of sentence is a question to be evaluated on a case-by-case
basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).
As to what constitutes a substantial question, this Court does not accept bald
assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d
1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the
sentencing court’s actions violated the sentencing code. Id.
Herein, the first three requirements of the four-part test are met.
Appellant brought an appropriate appeal, raised the challenge in a post-
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sentence motion,2 and included in his appellate brief the necessary concise
statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
In his Rule 2119(f) statement, Appellant first argues that the trial court
abused its discretion in imposing a sentence in the aggravated range when it
relied solely upon an impermissible factor. Appellant’s Brief at 9-10.
Appellant claims that the trial court based its reasoning for the aggravated
sentence on the sole fact that Appellant was selling drugs for profit. Id. at
10. “This Court has found a substantial question exists where the sentencing
court failed to provide sufficient reasons for imposing a sentence outside of
the guidelines.” Commonwealth v. Robertson, 874 A.2d 1200, 1212 (Pa.
Super. 2005) (citing Commonwealth v. Monahan, 860 A.2d 180, 182 (Pa.
Super. 2004)). Similarly, we have held that a substantial question exists
where an appellant has claimed that the sentencing court considered improper
factors in placing the sentence in the aggravated range. See
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2 The Commonwealth argues that this issue has not been preserved for review
because Appellant did not raise a claim that there were no aggravating
circumstances surrounding the crime in his post-sentence motion filed with
the trial court. Commonwealth’s Brief at 4. Upon review of Appellant’s motion
for reconsideration of sentence, it appears that the Commonwealth is making
a hyper technical argument with regard to the framing of the issue.
Accordingly, we decline to conclude that the claim is waived.
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Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (“Based
on [the a]ppellant’s assertion that the sentencing court considered improper
factors in placing the sentence in the aggravated range, we conclude that [the
a]ppellant presents a substantial question on appeal.”). Therefore, insofar as
Appellant implies that the court imposed an aggravated-range sentence based
upon impermissible factors, a substantial question exists. As such, we will
review the merits of Appellant’s first sentencing claim.
Pertaining to his second issue, Appellant claims that the trial court’s
sentences were inappropriately harsh and excessive. Appellant’s Brief at 10-
11. We do not accept bald assertions of sentencing errors. Commonwealth
v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006) (citing Commonwealth
v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)). See also Commonwealth v.
Harvard, 64 A.3d 690, 701 (Pa. Super. 2013) (observing that a bald or
generic assertion that a sentence is excessive does not, by itself, raise a
substantial question justifying this Court’s review of the merits of the
underlying claim); Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa.
Super. 2007) (claiming a sentence is excessive or unreasonable does not raise
a substantial question). Accordingly, we are constrained to conclude that
Appellant has failed to present a substantial question for our review. Thus,
we decline to address appellant’s second sentencing issue.
Appellant asserts that, in fashioning his sentence, the sentencing court
improperly imposed an aggravated-range sentence. Appellant’s Brief at 11-
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13. Appellant claims the trial court improperly relied on the fact that he was
selling drugs for profit, which was considered in the Sentencing Guidelines.
Id. at 12. However, we discern no abuse of discretion on the part of the
sentencing court.
It is undisputed that sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006). In this context, an abuse of discretion is
not shown merely by an error in judgment. Id. Rather, an 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. Id.
The sentencing judge has broad discretion in determining the proper
penalty, and this Court accords the sentencing court great deference, as it is
the sentencing court that is in the best position to view a defendant’s
character, displays of remorse, defiance, or indifference and the overall effect
and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (quotations and citations omitted).3 When imposing a sentence, the
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3 The Walls Court instructed the following:
In making this “unreasonableness” inquiry, the General Assembly
has set forth four factors that an appellate court is to consider:
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sentencing court must consider “the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §
9721(b). As we have stated, “[A] court is required to consider the particular
circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,
the court should refer to the defendant’s prior criminal record, his age,
personal characteristics and his potential for rehabilitation.” Id.
Moreover, the Pennsylvania Supreme Court reiterated “the guidelines
have no binding effect, create no presumption in sentencing, and do not
predominate over other sentencing factors—they are advisory guideposts that
are valuable, may provide an essential starting point, and that must be
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(d) Review of the record—In reviewing the record the appellate
court shall have regard for:
(1) The nature of the circumstances of the offense and
the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe
the defendant, including any pre-sentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
Walls, 926 A.2d at 963.
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respected and considered; they recommend, however, rather than require a
particular sentence.” Commonwealth v. Perry, 32 A.3d 232, 240 (Pa. 2011)
(citation omitted).
Simply put, the sentencing judge must state his or her reasons for
the sentence imposed, a discourse on the court’s sentencing
philosophy . . . is not required. The sentencing judge must explain
its deviation from the guidelines if he or she chooses to sentence
outside the guidelines. . . . The sentencing court is not required
to state its reasons for sentencing within one guideline range
over another.
Commonwealth v. Hill, 629 A.2d 949, 953 (Pa. Super. 1993) (citations and
quotations omitted, emphases in original).
Further, “[t]he guidelines only include a prior conviction score and do
not take into account whether an offense is committed while the offender was
on probation, parole or some other form or type of supervised release.”
Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003). “This
is an extraneous factor that can be separately considered by the sentencing
court.” Id. (observing that the sentencing court may consider a defendant’s
probation/parole status at time of crime in fashioning sentence).
In addition, “[o]ur Supreme Court has determined that where the trial
court is informed by a pre-sentence report, it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that where
the court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing
Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).
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Our review of the record reflects that, at the time of Appellant’s
sentencing, the trial court had received and reviewed a presentence report.
N.T., 3/14/18, at 2-3, 7. Further, the trial court heard argument from
Appellant’s counsel, which included exceptions to the presentence report. Id.
at 2-4. The trial court then heard Appellant’s allocution. Id. at 4.
Immediately following Appellant’s allocution, the trial court had the
following interaction with Appellant:
THE COURT: [Appellant], saying that you’re concerned about your
wife and your kids, when you’re coming from New York to
Pennsylvania, and you have two toddlers and an infant in the car
with you to make a drug sale, I mean that hardly sounds like
concern for your children. I’m sure you may be aware, or you can
at least imagine how a drug deal can go bad, and it can turn into
a dangerous situation, correct?
[APPELLANT]: Correct.
THE COURT: You got two kids in the car. And to say, well, I
needed money so I’m selling drugs, I have more sympathy for
someone who has a habit and who needs to sell drugs in order to
address the banking needs. In your case, this is purely a financial
situation, and one in which you’re exposing two toddlers, an
infant, and you’re on New York State parole at the same time.
You indicated that you don’t have a drug problem. So I can only
conclude that you’re here for the sole purpose of making money
and you don’t mind if it’s at the expense of someone else. And I
note, when you listed your assets, your attorney referred to you[r]
home, but I also note among the financial assets are a 2013
Porsche and a 2015 Mercedes.
[APPELLANT]: Yes, sir.
N.T., 3/30/17, at 4-5.
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Also, at the time it imposed the judgment of sentence, the court offered
the following comments, thereby revealing that it had considered Appellant’s
presentence report:
In regard to the charge of possession of a controlled
substance ..., you’re to be incarcerated in a state correctional
system for a minimum period of time which shall be three years
to a maximum which shall be eight years. With regard to …
endangering the welfare of children, violating a duty of care, I’m
going to order that you be incarcerated for a minimum period of
one year to a maximum which shall be two, and they will be
consecutive to each other, so that it is an aggregate sentence, the
minimum four years, the maximum shall be ten years. I note that
the sentence on the endangering the welfare is in the standard
range, however, the sentence for the [possession with intent to
deliver conviction] is in the aggravated range. I’ve gone there
because of the fact that this is purely a financial enterprise on your
part. That you were not an addict. You have absolutely no ties
to Lackawanna County or this area, and you obviously came here
specifically to sell drugs. Accordingly, the minimum in that case
is in the aggravated range. . . .
I’ve taken into consideration the nature and gravity of the
offense, your own specific action in this matter, the rehabilitative
needs, which are minimal, since you indicated there is no drug
habit here and the entire contents of this [presentence]
investigation. . . .
Id. at 6-7.
The trial court further elaborated its reasoning for imposition of the
specific sentence upon Appellant in its written opinion, as follows:
Here, the court gave several reasons for the sentences
imposed, including that [Appellant ]had his three children in the
car with him while he conducted drug transactions, exposing them
to great danger. The court also considered that [Appellant] drove
here from New York for the sole purpose of selling drugs, and that
he was not selling drugs to support a drug habit but rather for
financial reasons. The court also considered that [Appellant] was
on New York State parole when he committed these crimes.
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Furthermore, the court stated that the sentence on the possession
with intent to deliver charge was in the aggravated range because
this was purely a financial enterprise on [Appellant’s] part, he was
not an addict, and he has absolutely no ties to Lackawanna County
and came here specifically to sell drugs. Contrary to [Appellant’s]
assertion, the court did not sentence him in the aggravated range
because of his prior record score. [Appellant] has not shown how
the sentences were not appropriate under the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process, and thus has not shown that the sentences were harsh
or excessive. [Appellant] has also failed to show that there were
not aggravating circumstances justifying a sentence in the
aggravated range.
Trial Court Opinion, 6/12/18, at 4.
We conclude that the reasons the trial judge offered for the sentence he
imposed were more than sufficient, and his consideration of the fact that
Appellant was on parole at the time he committed the present crimes was
made in conjunction with other factors. Also, because the trial court had been
fully informed and relied upon the presentence report, we conclude that the
trial court did not abuse its discretion in fashioning Appellant’s sentence.
Accordingly, Appellant’s claim that the trial court failed to consider the
appropriate factors in imposing a sentence within the aggravated range of the
sentencing guidelines lacks merit.
Finally, we have independently reviewed the record in order to
determine whether there are any non-frivolous issues present in this case that
Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.
Super. 2014). Having concluded that there are no meritorious issues, we
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grant Appellant’s counsel permission to withdraw, and we affirm the judgment
of sentence.
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2019
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