Com. v. Douglass, C. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHRISTOPHER DOUGLASS, : No. 729 WDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, November 1, 2016,
in the Court of Common Pleas of Venango County
Criminal Division at Nos. CP-61-CR-0000196-2016,
CP-61-CR-0000197-2016
BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 04, 2019
Christopher Douglass appeals from the November 1, 2016 judgment of
sentence of the Court of Common Pleas of Venango County after he pled guilty
to 21 counts of sexual abuse of children, possession of child pornography,
criminal use of a communication facility, and indecent assault of a person with
a mental disability.1 Appellant received an aggregate sentence of 45 months
to 35 years of imprisonment. Matthew C. Parson, Esq. (“Attorney Parson”),
has filed an application to withdraw, alleging that the appeal is frivolous,
1 18 Pa.C.S.A. §§ 6312(c), 6312(d), 7512(a), and 3126(a)(6), respectively.
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accompanied by an Anders brief.2 After careful review, we grant counsel’s
petition to withdraw and affirm the judgment of sentence.
The relevant factual background and procedural history as found by the
trial court is as follows:
On July 25, 2016, [appellant] entered into a
negotiated guilty plea in which the Commonwealth
nolle prossed the remaining counts at criminal
docket numbers 196-2016 and 197-2016 in exchange
for his pleading guilty to the following counts: at
196-20[1]6, Counts One through Twenty-one-
Distribution of Photos/Videos of Child Sex Acts, all
violations of 18 Pa.C.S.A. § 6312(c), Count
Twenty-two-Possession of Child Pornography, in
violation of 18 Pa.C.S.A. § 6312(d); and Count
Twenty-three-Criminal Use of a Communication
Facility, a violation of 18 Pa.C.S.A. § 7512(a). At
docket number 197-2016, [appellant] pled guilty to
Count Three-Indecent Assault/Person with Mental
Disability, in violation of 18 Pa.C.S.A. § 3126(a)(6).
On November 11, 2016, [appellant] was sentenced at
docket number 196-2016, at Counts One to
Twenty-one, to a term of incarceration of one (1) to
ten (10) years, at Count Twenty-two to a term of
incarceration of one (1) to ten (10) years, and at
Count Twenty-three to a term of incarceration of
nine (9) to (24) twenty-four months. That same day,
[appellant] was sentenced at Count Three of docket
number 197-2016 to a term of incarceration of
nine (9) months to five (5) years. In our November 1,
2016 Sentence Order[,] we indicated the following as
to the above-cited sentences:
The sentence imposed at C.R. 196-2016
on counts 1, 2, and 3 are intended to run
consecutive to each other. Counts 4
through 22 are intended to run concurrent
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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with each other and concurrent with the
sentence imposed at Count 3. The
sentence imposed at Count 23 is intended
to run concurrent with the sentence
imposed at Count 3. The sentence
imposed at C.R. 197-2016, Count 3, is
intended to run consecutive to the
sentence imposed at Count 3 of
C.R. 196-2016 for a total aggregate
sentence of three (3) years, nine (9)
months minimum to a maximum of
thirty-five (35) years.
11/1/2016 Sentencing Order.
On November 9, 2016, [appellant] filed a timely
post-sentence motion, which was subsequently
denied by this Court on November 17 of the same
year. On October 11, 2017, [appellant] filed a PCRA
petition with this Court and [Attorney Parson] was
appointed by Order dated October 16, 2017. On
April 16, 2018, a PCRA hearing was held, and on
April 17th, this Court ordered that [appellant’s]
appellate rights be reinstated. On April 26, 2018,
[appellant] filed his Notice of Appeal with the Superior
Court and thereafter received notice from this Court
directing compliance with Pa.R.A.P. 1925. [Appellant]
filed his Concise Statement on May 7, 2018.[3]
Trial court opinion, 5/17/18 at 1-2.
Appellant raises the following issue for this court’s review: “Whether
the Sentencing Court erred as a matter of law or abused its discretion when
the Sentencing Court ordered an excessive sentence[?]” (Appellant’s brief at
5.)
3The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on May 17,
2018.
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On July 9, 2018, Attorney Parson filed in this court a petition for leave
to withdraw as counsel, because he found the appeal to be
“wholly frivolous.” (Petition for leave to withdraw as counsel, 7/9/18 at 1,
¶ 3 (emphasis in original).) On July 9, 2018, Attorney Parson filed an Anders
brief. This court denied the petition to withdraw due to deficiencies in the
petition and Attorney Parson’s failure to comply with Anders as it was not
clear that he sent a complete brief to appellant.
When this court denied the petition to withdraw, we remanded the case
to the trial court with instruction to counsel to file either a compliant
Anders/Santiago brief and an accurate petition to withdraw as counsel or an
advocate’s brief within 30 days of the date of this court’s memorandum.
Attorney Parson filed a new petition for leave to withdraw as counsel and a
timely Anders brief on November 21, 2018.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v. Flowers,
113 A.3d 1246, 1247-1248 (Pa.Super. 2015).
These requirements 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). This
Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
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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 additional points
worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise requirements of an Anders brief:
[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 appeal is
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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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “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 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked the
existence of potentially non-frivolous issues.” Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Regarding the requirements of Anders, Attorney Parson has filed a
petition that avers that, after a conscientious examination of the record, he
finds the appeal to be wholly frivolous. He has also filed a brief that attempts
to set forth the issues that might arguably support the appeal. He identifies
the issue in the statement of questions involved in the brief as: “Whether the
Sentencing Court erred as a matter of law or abused its discretion when the
Sentencing Court ordered an excessive sentence[?]” (Anders brief at 5.) The
body of the argument section of the brief addresses the issue contained in the
statement of questions involved, so the issue set forth in the brief complies
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with Anders. A review of the record reveals that Attorney Parson complied
with the requirements of Anders concerning notification.4
With respect to the requirements of Santiago, Attorney Parson has
provided a summary of the procedural history and facts. He has also set forth
his conclusion that the appeal is frivolous. Attorney Parson reaches this
conclusion because the trial court imposition of standard range minimum
sentences and maximum sentences at the statutory limit does not constitute
an abuse of discretion.
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.” Santiago, 978 A.2d at 355 n.5. As Attorney Parson has fulfilled
the requirements of Santiago, we now turn to the merits of appellant’s
appeal.
The possible issue raised in the brief is that the trial court erred as a
matter of law or abused its discretion when it ordered an excessive sentence.
4 In Paragraph 3 of the petition to withdraw, Attorney Parson refers to the
sentence order of 45 months to 36 years. A review of the record reveals that
the Sentence Order filed on November 4, 2016, states that the aggregate
sentence is 3 years 9 months to 35 years as opposed to the 36 years listed in
the petition. (Sentence order, 11/4/16 at 3-4.) In addition, Attorney Parson
identifies appellant in the caption of the petition as “Chrisopher Douglas.”
(Petition for leave to withdraw as counsel, 11/19/18 at 1.) The record clearly
states that appellant’s name is “Christopher Douglass.” While these two
errors are not substantive, Attorney Parson should submit an accurate
petition.
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In reviewing the record, the trial court had the benefit of a pre-sentence
investigation report when it imposed the sentence on appellant. The trial court
imposed minimum sentences within the sentencing guidelines. The trial court
imposed statutory maximums. However, many of the counts ran concurrent
to one another such that the aggregate maximum sentence totaled 35 years.
The trial court explained the basis for the sentence: “My sentence is based
on the conduct. My sentence is based on the conduct since this has occurred,
the plea and everything that is in front of me and in considering everything
that is presented in the presentence investigation.” (Notes of testimony,
11/1/16 at 24.)
Attorney Parson states correctly that a discretionary aspect of
sentencing can only be overturned if the sentencing court abused its
discretion. See Commonwealth v. Raybuck, 915 A.2d 212 (Pa.Super.
2000).
We note that:
Sentencing is a matter vested in the sound discretion
of the trial court and the lower court’s judgment of
sentence will not be disturbed by an appellate court
absent an abuse of discretion. To constitute an abuse
of discretion, a sentence must either exceed the
statutory limits or be patently excessive. When
reviewing sentencing matters, we must accord the
sentencing court great weight as it is in the best
position to view the defendant’s character, displays of
remorse, defiance or indifference, and the overall
effect and nature of the crime.
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Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa.Super. 1990) (citations
omitted).
Here, the trial court explained its reasoning behind the sentence, the
sentence was within the standard range for minimum sentences, and no
sentence exceeded the statutory maximum. There is nothing the record that
suggests the sentence was either excessive or unreasonable.
Further, where a sentence is within the standard
range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.
See Commonwealth v. Cruz-Centeno, 447
Pa.Super. 98, 668 A.2d 536 (1995), appeal denied,
544 Pa. 653, 676 A.2d 1195 (1996) (stating
combination of PSI and standard range sentence,
absent more, cannot be considered excessive or
unreasonable).
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).
Attorney Parson is correct when he determined the issue on appeal was
frivolous. This court agrees with Attorney Parson that the trial court did not
commit a manifest abuse of discretion.
Additionally, our independent review of the entire record has not
disclosed any potentially non-frivolous issues. Consequently, we grant
counsel’s petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2019
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