Com. v. Severance, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMIE R. SEVERANCE
Appellant No. 1828 MDA 2014
Appeal from the Judgment of Sentence October 9, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001317-2014
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 21, 2015
Appellant Jamie R. Severance appeals from the judgment of sentence
following his conviction for driving under the influence of alcohol or
controlled substance, high rate of alcohol.1 After review, we affirm and
grant counsel’s petition to withdraw.
The relevant facts and procedural history of this appeal are as follows.
On May 15, 2013, Appellant was operating a motor vehicle while under the
influence of alcohol. N.T., 10/9/14, at 4. On October 9, 2014, Appellant
pled guilty to one count of driving under the influence of alcohol, high rate of
alcohol.2 The same day, the court sentenced Appellant to five years of
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1
75 Pa.C.S. § 3802(b).
2
A driving under the influence of alcohol, general impairment, count was
nolle prossed.
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intermediate punishment, the first 90 days as incarceration for which
Appellant received credit for time previously served.3 The court directed
Appellant to have a drug and alcohol evaluation, to refrain from frequenting
alcohol-serving establishments, and to complete the alcohol safe driving
school. Additionally, Appellant was ordered to undergo ignition interlock for
12 months and to pay a fine of $2,500.00 and the costs of prosecution, and
his license was suspended for 18 months.
On October 10, 2014, Appellant filed a petition for reconsideration of
sentence, which the court denied on October 14, 2014. On October 29,
2014, Appellant timely filed a notice of appeal. On October 30, 2014, the
court ordered Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on
November 5, 2014. On January 9, 2015, Appellant’s counsel filed a petition
for leave to withdraw along with an Anders brief.
As a preliminary matter, appellate counsel seeks to withdraw her
representation pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967) and Commonwealth v. Santiago, 978 A.2d
349 (Pa.2009). Prior to withdrawing as counsel on a direct appeal under
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3
Because Appellant received credit for time served, he was immediately
eligible for parole. The court also placed Appellant on a random alcohol and
drug testing system for the first 90 days of his parole.
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Anders, counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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. Counsel must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
appellant of his or her right to “(1) retain new counsel to pursue the appeal;
(2) proceed pro se on appeal; or (3) raise any points that the appellant
deems worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super.2007), appeal denied, 936 A.2d 40 (Pa.2007). Substantial
compliance with these requirements is sufficient. Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the
antecedent requirements have been met, this Court must then make an
independent evaluation of the record to determine whether the appeal is, in
fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246
(Pa.Super.2006).
Here, counsel filed a petition for leave to withdraw as counsel along
with an Anders brief and a letter advising Appellant of his right to obtain
new counsel or proceed pro se to raise any points he deems worthy of the
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court’s attention in addition to the ones raised in the Anders brief. The
petition states counsel determined there were no non-frivolous issues to be
raised on appeal,4 notified Appellant of the withdrawal request, supplied him
with a copy of the Anders brief, and sent him a letter explaining his right to
proceed pro se or with new, privately-retained counsel to raise any
additional points or arguments that Appellant believed had merit. In the
Anders brief, counsel provides a summary of the facts and procedural
history of the case with citations to the record, refers to evidence of record
that might arguably support the issue raised on appeal, provides citations to
relevant case law, and states her conclusion that the appeal is wholly
frivolous and his reasons therefor. See Anders Brief, at 5-13. Accordingly,
counsel has substantially complied with the requirements of Anders and
Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issues raised
in the Anders brief:
WHETHER THE SENTENCE IMPOSED WAS
INAPPROPRIATELY HARSH AND EXCESSIVE AND AN
ABUSE OF DISCRETION?
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4
Although the petition to withdraw does not state that counsel made an
extensive review of the record before determining Appellant had no issues of
arguable merit, she states in the Anders brief that she “made a
conscientious examination of the record and ultimately determined an
appeal would be wholly frivolous.” Anders Brief at 13.
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WHETHER THE COURT FAILED TO CONSIDER THAT THE
APPELLANT IS A PRODUCT OF PARTICULAR
CIRCUMSTANCES AND CONDITIONS OF ENVIRONMENT,
BUT THAT THESE MATTERS WERE NOT FULLY AND
COMPLETELY EXPRESSED AT THE TIME OF SENTENCING?
Anders Brief at 4.
In both of his issues, Appellant challenges the discretionary aspects of
his sentence. He claims that his sentence was excessively harsh and that
the court failed to consider mitigating factors, specifically Appellant’s
environment and alcohol problem. Appellant’s issues merit no relief.
Initially, Appellant has waived his claims by entering into a negotiated
guilty plea. See Commonwealth v. Lincoln, 72 A.3d 606, 609
(Pa.Super.2013) (“Pennsylvania law makes clear that by entering a guilty
plea, the defendant waives his right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity
of the plea.”).
Even if not waived, challenges to the discretionary aspects of
sentencing do not entitle a petitioner to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can
address such a discretionary challenge, an appellant must comply with the
following requirements:
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)
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whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Id.
Presently, Appellant filed a timely notice of appeal and a post-sentence
motion.5 Further, Appellant’s brief includes a concise statement of reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of his sentence pursuant to Pa.R.A.P. 2119(f). See Anders Brief at 9-10.
We now must determine whether Appellant presents 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). 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.
Id. (internal citations omitted).
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5
In his petition for reconsideration of sentence, Appellant requests that the
court reconsider his sentence due to conditions of his environment, but he
does not specifically challenge the excessiveness of his sentence.
Nevertheless, in light of Counsel’s petition to withdraw, we will proceed to
address whether Appellant raises a substantial question. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super.2009) (observing
that Anders requires review of issues otherwise waived on appeal).
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“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
(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations
omitted).
Further,
when an excessiveness claim is raised in cases where the
sentence falls within the statutory limits, this Court is to
review each claim on a case-by-case basis to determine
whether a substantial question has been presented. The
Supreme Court explained that while we need not accept
bald allegations of excessiveness, where the appellant has
provided a plausible argument that a sentence is contrary
to the Sentencing Code or the fundamental norms
underlying the sentencing process, a substantial question
exists, requiring a grant of allowance of appeal of the
discretionary aspects of the sentence.
Commonwealth v. Simpson, 829 A.2d 334, 337 (Pa.Super.2003) (citation
omitted).
“[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa.Super.2013) (internal citation omitted).
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Accordingly, neither Appellant’s bald claim of excessiveness nor his
claim that the court failed to consider mitigating factors raises a substantial
question.6 See Simpson, supra; Disalvo, supra.
Because Appellant does not raise a substantial question, we need not
address whether the court abused its discretion in the imposition of its
sentence.
Further, after an independent review of the record, we agree with
Counsel that this appeal is wholly frivolous.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
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6
Moreover, Appellant’s claims are devoid of merit. His sentence of 5 years
of intermediate punishment which includes only 90 days’ incarceration was
not only well within the guidelines which provide for 90 days to 5 years’
incarceration, but the mandatory minimum for a third offense tier 2 DUI
offense. Further, the court imposed $2,500.00 in fines, which was well
below the $10,000.00 it could have imposed. Additionally, the court was
aware that this was Appellant’s third DUI offense. Appellant’s counsel stated
at sentencing: “I know that he wants to take responsibility for this. I know
he’s sorry for what he’s done. You know, I think that he would indicate that
he’s had some issues in the past and I think he’s willing to take control of
those issues.” N.T., 10/9/14, at 6. Counsel and the court then asked
Appellant if he would like to speak to the court. Appellant said, “I’d like to
thank – I am guilty, sir.” Id. Appellant had his opportunity to speak and he
cannot now claim that the court failed to consider anything Appellant did not
raise.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2015
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