Com. v. Robinson, J. ( 2017 )

J-S05030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES JUMAH ROBINSON
Appellant No. 1216 MDA 2016
Appeal from the Judgment of Sentence March 3, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002523-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 13, 2017
Appellant, James Jumah Robinson, appeals from the judgment of
sentence entered on March 3, 2016, in the Court of Common Pleas of Berks
County. Additionally, Robinson’s court-appointed counsel, Abby L. Rigdon,
Esquire, has filed a petition 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 Robinson’s judgment of sentence and grant
counsel’s petition to withdraw.
This case returned to the trial court after an en banc panel of this
Court reversed Robinson’s conviction for receiving stolen property, vacated
his judgment of sentence, and remanded for resentencing on the remaining
____________________________________________

Retired Senior Judge assigned to the Superior Court.
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firearms conviction, 18 Pa.C.S.A. § 6106(a)(1). See Commonwealth v.
Robinson, 128 A.3d 261 (Pa. Super. 2015) (en banc). On remand, the trial
court resentenced Robinson to a period of imprisonment of 42 months to
seven years. Douglas J. Waltman, Esquire, filed a post-sentence motion on
Robinson’s behalf and in that motion sought to withdraw as counsel. The
trial court granted the motion to withdraw as counsel and appointed
Attorney Rigdon. The trial court later denied the post-sentence motion. And
this timely appeal followed.
Attorney Rigdon has complied with the mandated procedure for
withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating
Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594
(Pa. Super. 2010) (providing that counsel must inform client by letter of
rights to proceed once counsel moves to withdraw and append a copy of the
letter to the petition). Robinson has filed two letters in this Court in response
to counsel’s petition to withdraw.
Counsel has identified two issues in the Anders brief that Robinson
believes entitle him to relief: a challenge to the discretionary aspects of
sentencing and trial counsel’s ineffective assistance. We begin with the
latter.
Robinson’s letters to this Court detail his theories on trial counsel’s
ineffective assistance. See Letters, filed 11/21/16 and 12/5/16. This is
Robinson’s direct appeal. Apart from two limited exceptions not pertinent
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here, claims of ineffective assistance of counsel cannot be raised on direct
review. See Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).
Accordingly, Robinson cannot now raise allegations of trial counsel’s
ineffective assistance. The allegations must await collateral review.
The discretionary aspects of sentencing claim, as framed in the Rule
2119(f) statement, is that the sentence “is manifestly excessive and grossly
disproportionate to the crime charged….” Appellant’s Brief, at 5. “[I]ssues
challenging the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Commonwealth v. Shugars, 895 A.2d
1270, 1273-1274 (Pa. Super. 2006) (citation omitted). The post-sentence
motion did not challenge the sentence on this basis. See Post-Sentence
Motion to Vacate Sentence, filed 3/3/16, at ¶¶ 1-2.
Ordinarily, we would find this sentencing claim waived. See Shugars.
And would have further noted that the claim would not even have raised a
substantial question for our review. See Commonwealth v. Lutes, 793
A.2d 949, 964 (Pa. Super. 2002) (“[A] bald allegation that a sentence is
excessive does not raise a substantial question.”) But in light of counsel’s
petition to withdraw, we must address Robinson’s contention. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating
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that where counsel files an Anders brief, this Court will review discretionary
aspects of sentencing claims that were otherwise not properly preserved).
Sentencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias,
or ill will. It is more than just an error in judgment.
Commonwealth v. Downing, 990 A.2d 788, 792-793 (Pa. Super. 2010)
(citation omitted).
The trial court imposed a sentence within the standard range of the
sentencing guidelines. The standard range sentence is presumptively
reasonable. See, e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa.
Super. 2006). As the sentence was within the standard range, to succeed on
this claim, Robinson has to show that “the case involves circumstances
where the application of the guidelines would be clearly unreasonable[.]” 42
Pa.C.S.A. § 9781(c)(2). That is simply not the case here. The sentence is in
no way excessive. Thus, Robinson’s challenge to the discretionary aspects of
his sentence fails.
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.
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Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
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