Com. v. Miller, E. ( 2018 )


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  • J-S58024-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    EMMANUEL MILLER                            :
    :
    Appellant               :   No. 410 WDA 2018
    Appeal from the Judgment of Sentence February 9, 2018
    In the Court of Common Pleas of Crawford County Criminal Division at
    No(s): CP-20-CR-0000465-2017
    BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 16, 2018
    Emmanuel Miller (Appellant) appeals from the judgment of sentence
    imposed after he pled guilty to driving under the influence (DUI) and driving
    without a license.1 Appellant’s counsel, Emily M. Merski, Esquire (Counsel),
    seeks to withdraw from representation pursuant to Anders v. California, 
    386 U.S. 738
     (1967), and Commonwealth v. Santiago, 
    978 A.2d 349
    , 361 (Pa.
    2009). Upon review, we affirm Appellant’s judgment of sentence and grant
    Counsel’s petition to withdraw.
    The trial court recounted the factual and procedural history of this case
    as follows:
    [Appellant] entered a plea on [ ] November 6, 2017. The plea
    was to two counts[:] Count 4, [DUI], as a Tier III, first offense
    with a minor occupant in the vehicle and Count 5, Drivers Required
    to be Licensed. The violation section pled to by [Appellant] was
    ____________________________________________
    1   75 Pa.C.S.A. §§ 3802(d)(3), 1501(a).
    J-S58024-18
    3802(d)(3) for a combination of Alcohol and Controlled Substance
    or a Combination of Controlled Substances. The offense was
    graded as a misdemeanor of the first degree because at the time
    of the incident [Appellant] was operating a motor vehicle with a
    minor present while under the influence pursuant to 75 Pa.C.S.A.
    [§] 3804(C.1)(1). [Appellant’s] plea involved a Commonwealth
    Sentencing recommendation of a low-end standard range.
    A Guideline Form was prepared in advance of sentencing and
    [Appellant] underwent a drug and alcohol assessment as required
    and also a CRN evaluation. The Drug and Alcohol Assessment
    recommended a level of care and [Appellant] was to commence
    treatment on [November 22, 2017,] and it was then adjusted on
    [November 22, 2017] to start outpatient treatment. The Mortimer
    Filkins score on [Appellant’s] CRN was a 56 and [Appellant’s]
    Offense Gravity Score for the applicable DUI was a five.
    [Appellant’s] Prior Record Score was also a five.
    His prior record stemmed from a number of significant criminal
    offenses including a juvenile robbery for which he was adjudicated
    delinquent, multiple misdemeanors in Erie County as well as
    Escape as a felony and most recently a Firearms Not to be Carried
    Without License charge as a felony. A review of [Appellant’s]
    Guideline Report indicated that he had served a significant
    sentence as a result of a conviction in 2002 and a 36-72 month
    SCI sentence in 2011.
    At the time of [Appellant’s] sentencing, there were issues that
    suggested ongoing mental health and drug and alcohol issues and
    other issues including indications of instability in the community.
    [Appellant] had just completed his state sentence at the time he
    committed the offense before the Court. He was also operating a
    motor vehicle at the time without a valid license.
    Applying the Offense Gravity Score and prior record score of five,
    the applicable standard range was a minimum in the range of 12-
    18 months.
    Trial Court Opinion, 5/7/18, at 1-2.
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    J-S58024-18
    The trial court sentenced Appellant to 12 to 36 months of incarceration.
    Appellant filed a timely post-sentence motion which the trial court denied.
    Thereafter, Appellant filed this timely appeal.
    On appeal, Counsel has filed a petition for leave to withdraw as counsel
    in addition to an Anders brief. There are particular mandates that counsel
    seeking to withdraw pursuant to Anders must follow. These mandates and
    the significant protection they provide to an Anders appellant arise because
    a criminal defendant has a constitutional right to a direct appeal and to counsel
    on that appeal. Commonwealth v. Woods, 
    939 A.2d 896
    , 898 (Pa. Super.
    2007). We have summarized these requirements as follows:
    Direct appeal counsel seeking to withdraw under Anders must file
    a petition averring that, after a conscientious examination of the
    record, counsel finds the appeal to be wholly frivolous. Counsel
    must also file an Anders brief setting forth issues that might
    arguably support the appeal along with any other issues necessary
    for the effective appellate presentation thereof.
    Anders counsel must also provide a copy of the Anders petition
    and brief to the appellant, advising the appellant of the right to
    retain new counsel, proceed pro se or raise any additional points
    worthy of this Court’s attention.
    If counsel does not fulfill the aforesaid technical requirements of
    Anders, this Court will deny the petition to withdraw and remand
    the case with appropriate instructions (e.g., directing counsel
    either to comply with Anders or file an advocate’s brief on
    Appellant’s behalf).
    
    Id.
     (citations omitted).
    Additionally, there are requirements as to precisely what an Anders
    brief must contain:
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    J-S58024-18
    [T]he Anders brief that accompanies court-appointed counsel’s
    petition to withdraw … 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 349
    , 361 (Pa. 2009).         When faced with a purported
    Anders brief, we may not review the merits of the underlying issues without
    first deciding whether counsel has properly requested permission to withdraw.
    Commonwealth v. Wimbush, 
    951 A.2d 379
    , 382 (Pa. Super. 2008) (citation
    omitted).   If counsel has met these 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.” Santiago, 978 A.2d at 354 n.5.
    Instantly, we conclude that Counsel has complied with the requirements
    outlined above. Counsel has filed a petition with this Court stating that after
    reviewing the record, she finds this appeal to be wholly frivolous. Petition for
    Leave to Withdraw as Counsel, 7/24/18, at ¶ 3.            In conformance with
    Santiago, Counsel’s brief includes summaries of the facts and procedural
    history of the case, and discusses the issues she believes might arguably
    support Appellant’s appeal. See Anders Brief at 4-9. Counsel’s brief sets
    forth her conclusion that the appeal is frivolous and includes citation to
    relevant authority.   See id. at 9-10.   Finally, Counsel has attached to her
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    J-S58024-18
    petition to withdraw the letter that she sent to Appellant, which enclosed
    Counsel’s petition and Anders brief. Counsel’s letter advised Appellant of his
    right to proceed pro se or with private counsel and to raise any additional
    issues that he deems worthy of this Court’s consideration.
    Counsel’s Anders brief advances Appellant’s overarching argument
    challenging the discretionary aspects of Appellant’s sentence. We recognize:
    Sentencing is a matter vested in the sound discretion of the
    sentencing judge. The standard employed when reviewing the
    discretionary aspects of sentencing is very narrow. We may
    reverse only if the sentencing court abused its discretion or
    committed an error of law. A sentence will not be disturbed on
    appeal absent a manifest abuse of discretion. 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. We must accord
    the sentencing court’s decision great weight because it was in the
    best position to review the defendant’s character, defiance or
    indifference, and the overall effect and nature of the crime.
    Commonwealth v. Cook, 
    941 A.2d 7
    , 11-12 (Pa. Super. 2007) (internal
    quotations and citations omitted).
    “The right to appellate review of the discretionary aspects of a sentence
    is not absolute, and must be considered a petition for permission to appeal.”
    Commonwealth v. Buterbaugh, 
    91 A.3d 1247
    , 1265 (Pa. Super. 2014),
    appeal denied, 
    104 A.3d 1
     (Pa. 2014). “An appellant must satisfy a four-
    part test to invoke this Court’s jurisdiction when challenging the discretionary
    aspects of a sentence.”     
    Id.
       We conduct this four-part test to determine
    whether:
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    J-S58024-18
    (1) the appellant preserved the issue either by raising it at the
    time of sentencing or in a post[-]sentence motion; (2) the
    appellant filed a timely notice of appeal; (3) the appellant set forth
    a concise statement of reasons relied upon for the allowance of
    his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
    raises a substantial question for our review.
    Commonwealth v. Baker, 
    72 A.3d 652
    , 662 (Pa. Super. 2013) (citation
    omitted), appeal denied, 
    86 A.3d 231
     (Pa. 2014). “A defendant presents a
    substantial question when he sets forth a plausible argument that the
    sentence violates a provision of the sentencing code or is contrary to the
    fundamental norms of the sentencing process.” Commonwealth v. Dodge,
    
    77 A.3d 1263
    , 1268 (Pa. Super. 2013) (quotations and citations omitted),
    appeal denied, 
    91 A.3d 161
     (Pa. 2014).
    Here, Appellant has complied with the first three prongs of the
    discretionary aspect test to invoke our jurisdiction by raising his issue in a
    timely post-sentence motion, filing a timely notice of appeal, and including in
    his appellate brief a Rule 2119(f) concise statement. In addition, by asserting
    that his sentence beyond the standard range is unreasonable given the
    mitigating circumstances, he has raised a substantial question. See, e.g.,
    Commonwealth v. Felmlee, 
    828 A.2d 1105
    , 1107 (Pa. Super. 2003) (en
    banc) (stating that a substantial question is raised where an appellant alleges
    that the sentencing court imposed a sentence in the aggravated range without
    adequately considering mitigating circumstances).
    In his argument, Appellant recounts the procedural history of his case,
    and cites case law for general propositions relating to the discretionary aspects
    -6-
    J-S58024-18
    of sentencing. See Anders Brief at 8-9. With regard to the specifics of his
    claim, Appellant argues:
    Specifically, the Appellant argues that the court failed to consider
    the mitigating factors of the Appellant’s case. The Appellant
    contends that the trial court did not take into consideration the
    fact that he has significant mental health issues that he was
    currently treating in Crawford County with both therapy and
    medication management. The Appellant suffers from longtime
    various mental health diagnoses which significantly motivated the
    actions taken by the Appellant for the current conviction and those
    in the past. The Appellant respectfully argued to the trial court
    that his ability to continue with the services that he currently uses
    and trusts – and will utilize upon his parole – was only visible if
    the court imposed a county-length sentence.
    The Appellant argues that given the mitigating factors of his case
    his sentence is excessive.
    
    Id.
    The Commonwealth, in response, states that the trial court considered
    “all of the necessary factors” and acted within its discretion in imposing
    Appellant’s sentence. Commonwealth Brief at 13.
    We review a challenge to a sentence that falls outside of the guidelines
    mindful of the following:
    The sentencing guidelines are not mandatory, and sentencing
    courts retain “broad discretion in sentencing matters, and
    therefore, may sentence defendants outside the [g]uidelines.”
    [Commonwealth v. Mouzon, 
    571 Pa. 419
    , 
    812 A.2d 617
    , 620-
    21 (2002); see 42 Pa.C.S. §9721(b)] (citing Commonwealth v.
    Ellis, 
    700 A.2d 948
    , 958 (Pa.Super.1997)). “In every case where
    the court imposes a sentence ... outside the guidelines adopted
    by the Pennsylvania Commission on Sentencing ... the court shall
    provide a contemporaneous written statement of the reason or
    reasons for the deviation from the guidelines.” 42 Pa.C.S. §
    9721(b). However, “[t]his requirement is satisfied ‘when the judge
    states his reasons for the sentence on the record and in the
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    J-S58024-18
    defendant’s presence.’” Commonwealth v. Widmer, 
    446 Pa. Super. 408
    , 
    667 A.2d 215
    , 223 (1995), reversed on other
    grounds, 
    547 Pa. 137
    , 
    689 A.2d 211
     (1997). Consequently, all
    that a trial court must do to comply with the above procedural
    requirements is to state adequate reasons for the imposition of
    sentence on the record in open court. See Robinson, 931 A.2d
    at 26 (quoting Commonwealth v. Walls, 
    846 A.2d 152
    , 158
    (Pa.Super.2004), reversed on other grounds, 
    592 Pa. 557
    , 
    926 A.2d 957
     (2007)) (“If a court chooses to sentence a defendant
    outside of the sentencing guidelines, it should state on the record
    adequate reasons for the deviation.”).
    “When imposing sentence, a court is required to consider ‘the
    particular circumstances of the offense and the character of the
    defendant.’” Commonwealth v. McClendon, 
    403 Pa.Super. 467
    ,
    
    589 A.2d 706
    , 712–13           (1991) (en banc) (quoting
    Commonwealth v. Frazier, 
    347 Pa.Super. 64
    , 
    500 A.2d 158
    ,
    159 (1985)). “In considering these factors, the court should refer
    to the defendant’s prior criminal record, age, personal
    characteristics and potential for rehabilitation.” 
    Id.
    Commonwealth v. Antidormi, 
    84 A.3d 736
    , 760–61 (Pa. Super. 2014),
    appeal denied, 
    95 A.3d 275
     (Pa. 2014).
    Consistent with the foregoing, and upon review of the record, we agree
    with the Commonwealth that Appellant’s sentencing claim does not merit
    relief. The crux of Appellant’s argument – that the trial court disregarded
    mitigating factors – is not supported by the record.
    Contrary to Appellant’s argument, the record belies Appellant’s claim
    that the trial court failed to consider mitigating factors when it imposed
    Appellant’s sentence.   In addition to its commentary about other statutory
    considerations, the court addressed Appellant:
    . . . I understand where you are. I really do. And I’m pausing
    because I’m really trying to think of other options. But everything
    goes back to the same answer for me, and that is that the
    -8-
    J-S58024-18
    sentence that I’m going to impose here is the right one. I’ll
    explain it to you in a minute, okay? I don’t do it lightly. It’s not
    like I’m wishing to send you away for a long time. By definition,
    in the standard range, I’m at 12 months. That’s a long time.
    House arrest is always an option in certain cases, but it just
    doesn’t fit this case. I mean for a lot of reasons. And so then I’m
    looking at whether 12 months in a county facility makes sense
    where you’re not going to get any programming, you’re not going
    to get a halfway house upon release. You’re not going to get
    anything.
    And I really think that you have the wish to do better, right? And
    you have kind of the sense in your head of what you got to do to
    get there. You think you need to find a job. And I would tell you
    that while finding a job is a big deal to staying on the right path,
    finding an income stream, whether it’s a disability income stream
    or whatever is equally important. It’s hard to find work if you
    can’t get yourself cleaned up and show up for an interview on time
    and all those things. There is nothing wrong with getting some
    assistance when you need it to get yourself on stable footing, so
    then you can work from there. I agree with you. I don’t want you
    for 30 years to not be looking for work. But, you know, let’s get
    you squared and started, and I think part of that process will come
    from some programming that’s available upon release that the
    state has that we just don’t have in our county jail. It makes no
    sense to put you there.
    I also have a pretty firm starting point whenever I see someone
    that has a standard range state area and has been in state before
    that, generally speaking, the county does not serve any major
    deterrent type of effect from an incarceration standpoint. But,
    ultimately, what it comes down to is this: I think that the best
    chance for you to get stability and get on your feet right is to do
    the time and then come out with some programming that’s laid
    out well for you. And that’s not going to happen . . . with a local
    sentence.
    N.T., 1/30/18, at 10-12.
    Based on the foregoing, we find no merit to Appellant’s claims that the
    trial court abused its discretion by disregarding mitigating factors when it
    imposed Appellant’s sentence.    See, e.g., Felmlee, 
    supra
     (judgment of
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    J-S58024-18
    sentence in aggravated range affirmed where court noted mitigating factors
    and “carefully reviewed all the facts and made an intelligent decision as to
    sentencing”); cf. Commonwealth v. Hyland, 
    875 A.2d 1175
     (Pa. Super.
    2005) (judgment of sentence vacated where court “focused exclusively” on
    aggravating factors and “virtually ignored” mitigating factors such as
    appellant’s lack of prior criminal record, his age, his personal characteristics,
    and his life situation).     Accordingly, we affirm the judgment of sentence.2
    Judgment of sentence affirmed. Petition to withdraw granted. Motion
    denied.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/15/2018
    ____________________________________________
    2 On August 20, 2018, Appellant filed with this Court a pro se Application for
    Immediate Release, seeking to have this Court order his immediate release
    from incarceration. Appellant’s motion is denied.
    - 10 -