Com. v. Ramsey, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARQUISE LAMAR RAMSEY :
:
Appellant : No. 1348 MDA 2018
Appeal from the Judgment of Sentence Entered July 18, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000620-2015
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 25, 2019
Appellant, Marquise Lamar Ramsey, appeals from the Judgment of
Sentence entered on July 18, 2018, in the Berks County Court of Common
Pleas following a hearing. He challenges the discretionary aspects of his
violation of probation (“VOP”) sentence. In addition, Appellant’s counsel has
filed an Anders1 Brief, together with a Petition to Withdraw as Counsel. After
careful review, we affirm Appellant’s Judgment of Sentence and grant
counsel’s Petition to Withdraw.
On August 20, 2015, Appellant entered an open guilty plea to a charge
of Prohibited Offensive Weapons2 and the court sentenced him to three years’
probation. While on probation, police arrested Appellant and, on November
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967).
2 18 Pa.C.S. § 908(a).
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* Former Justice specially assigned to the Superior Court.
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17, 2017, charged him in a new case with Persons Not to Possess Firearms,
Receiving Stolen Property, Possession of a Controlled Substance, and
Possession of Drug Paraphernalia. On July 6, 2018, Appellant pleaded guilty
to the Persons Not to Possess3 charge and the court sentenced him to 3 to 10
years’ incarceration.
On July 18, 2018, the trial court held a VOP hearing at which Appellant
admitted to violating his probation. The VOP court revoked Appellant’s
probation and sentenced Appellant to 6 months’ to 4 years’ incarceration. The
VOP court ordered Appellant to serve this VOP sentence consecutive to the 3-
to 10-year sentence imposed for the 2018 convictions.
On July 19, 2018, Appellant filed a Post-Sentence Motion challenging
the VOP court’s Order that he serve his VOP sentence consecutive, rather than
concurrent, to the sentence imposed on his new conviction.
On August 2, 2018, the trial court denied Appellant’s Motion. This timely
appeal followed. The trial court ordered Appellant to comply with Pa.R.A.P.
1925. Appellant’s counsel filed a Statement of Intent to File an
Anders/McClendon Brief pursuant to Rule 1925(c)(4). The trial court filed a
Rule 1925(a) Opinion.
On October 24, 2018, counsel filed the Anders Brief and Petition to
Withdraw as Counsel. Appellant did not file a pro se or counselled response
to either the Brief or the Petition.
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3 18 Pa.C.S. § 6105(a)(1).
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As a preliminary matter, we address counsel’s Petition to Withdraw.
“When presented with an Anders brief, this Court may not review the merits
of the underlying issues without first passing on the request to withdraw.”
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citation
omitted). In order for counsel to withdraw from an appeal pursuant to
Anders, our Supreme Court has determined that counsel must meet certain
requirements, including:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, counsel has complied with all of the requirements
of Anders as articulated in Santiago. Additionally, counsel confirms that he
sent Appellant a copy of the Anders Brief, as well as a letter explaining to
Appellant that he has the right to proceed pro se or the right to retain new
counsel. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super.
2005) (describing notice requirements). Counsel appended a copy of the
letter to his Petition to Withdraw.
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Because counsel has satisfied the above requirements, it is now this
Court’s duty to conduct an independent review of the record to discern if there
are any additional, non-frivolous issues overlooked by counsel and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.
See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (noting that Anders requires the reviewing court to “review ‘the case’
as presented in the entire record with consideration first of issues raised by
counsel.”).
We first address the issue raised by counsel in the Anders Brief:
Whether the sentencing court erred and abused its discretion
when it sentenced Appellant to a consecutive, rather than
concurrent, sentence for his probation violation?
Anders Brief at 6.
The issue presented in the Anders Brief challenges the discretionary
aspects of Appellant’s sentence. See Commonwealth v. Gonzalez-
Dejesus, 994 A.2d 595, 597-98 (Pa. Super. 2010) (explaining that a
challenge to the imposition of consecutive sentences implicates the
discretionary aspects of sentencing). A challenge to the discretionary aspects
of sentencing is not automatically reviewable as a matter of right.
Commonwealth v. Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001). Prior
to reaching the merits of a discretionary sentencing issue:
We 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
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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.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In the instant case, Appellant met the first three elements by filing a
timely Notice of Appeal, properly preserving the issue in a Post-Sentence
Motion to modify his sentence, and including a Statement of Reasons Relied
Upon for Allowance of Appeal pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f)
Statement”). As to whether Appellant has presented a substantial question,
we note:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
With regard to the imposition of consecutive sentences, this Court has
held:
A court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010)[.] Rather, the imposition of
consecutive rather than concurrent sentences will present a
substantial question in only “the most extreme circumstances,
such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of
imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365, 372
(Pa. Super. 2012)[(en banc)].
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[An appellant] may raise a substantial question where [s]he
receives consecutive sentences within the guideline ranges
if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness
due to the consecutive nature of a sentence will not raise a
substantial question.
Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)
(citation and quotation omitted, emphasis in original).
In the instant case, Appellant’s bald challenge to the imposition of a
consecutive sentence following the revocation of his probation does not raise
a substantial question permitting our review. Accordingly, we agree with
counsel and conclude that the issue raised in the Anders Brief is wholly
frivolous.
Furthermore, our independent review of the record, conducted in
accordance with Yorgey, supra, confirms counsel’s assertion that there are
no issues of merit to be considered by this Court and this appeal is, thus,
wholly frivolous. Thus, we grant counsel’s Application to Withdraw and affirm
Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed. Application to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2019
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