Commonwealth v. Bynum-Hamilton , 2016 Pa. Super. 39 ( 2016 )

J-S14044-16
2016 PA Super 39COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON MAURICE BYNUM-HAMILTON,
Appellant No. 1151 MDA 2015
Appeal from the Judgment of Sentence June 5, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002550-2013, CP-36-CR-0004371-
2009, CP-36-CR-0005240-2012, CP-36-CR-0005642-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Lancaster County by the Honorable Jeffrey D. Wright on
June 5, 2015, at which time Appellant was sentenced to an aggregate term
of seven years to fifteen years in prison following the revocation of his parole
and probation. In addition, Appellant's counsel has filed a petition to
withdraw his representation and a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth
v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After a careful review, we
grant counsel's petition to withdraw and affirm Appellant's judgment of
sentence.
*Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history herein are as follows: On
September 3, 2014, Appellant participated in a video parole/probation
violation hearing. Following its determination that Appellant had knowingly
and intelligently waived his right to be personally present and that he had
consented to the use of simultaneous audio/video two-way communication in
the proceeding, the trial court remarked that serious charges had been
brought against Appellant on July 27, 2014, in Chester County, including an
attempted homicide charge. N.T., 9/3/14, at 3-4.
Appellant’s Probation Officer1 testified that his period of supervision
with Appellant had begun on May 28, 2014, and that while Appellant
reported to his scheduled appointments on May 29th and June 11th, he failed
to report on July 2nd, July 10th, and July 16th. Id. at 5. Appellant tested
positive for marijuana and benzodiazepines on July 2nd, and he signed an
admission indicating he had ingested marijuana on or about May 27th. Id. at
5-6. Due to his past history of violations resulting from new charges, his
chronic drug use, and the aggravated nature of the pending charges in
Chester County, the Probation Officer recommended that the trial court
vacate Appellant’s current parole sentence, revoke his probation, and
commit him to a state prison. Id. at 6. The trial court informed Appellant
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1
The Probation Officer’s proper name does not appear in the hearing
transcript.
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he had an “absolute right” to make a statement, and Appellant twice
indicated he had nothing else to say. Id. at 5.
At the conclusion of the hearing, the trial court found Appellant to be
in violation of his probation and parole on Information: 4371 of 2009,
Counts 1 and 2; 5240 of 2012; 2550 of 2013; and 5642 of 2013, Count 2.
After ordering all of his probation and parole revoked, the trial court further
directed the Lancaster County Department of Probation and Parole to
prepare a Presentence Investigation (PSI) report and provide it to the court
within sixty days. The trial court also requested that the PSI report contain
an itemization of all time Appellant had spent incarcerated on each of the
dockets and counts at issue. Appellant declined the trial court’s offer for
him to discuss the matter in confidence with defense counsel. Id. at 6-7.
Appellant’s probation/parole violation sentencing hearing was held on
June 5, 2015. At the outset, Probation Officer Elizabeth Buckwalter
indicated that Defense Counsel Kathleen M. Morrison, Esquire, and Appellant
had signed a stipulation form on September 3, 2014, and Attorney Morrison
stated she had received the PSI report and reviewed it with Appellant two
days earlier in Lancaster County Prison. She represented that Appellant did
not have any questions about the PSI report or concerns regarding the
information contained therein. The sentencing court informed Appellant he
had an “absolute right” to make a statement regarding counsel’s assertions;
however, Appellant declined the opportunity to do so. N.T., 6/5/15, at 2.
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Attorney Morrison added that Appellant had been tried and sentenced
to five years to ten years in prison in Chester County;2 however, she
stressed the PSI report revealed Appellant suffered from significant mental
health issues from a young age and had been diagnosed with bipolar
disorder as a teenager. She requested that the sentencing court end county
supervision in light of the fact that Appellant would be on state supervision
for the next ten years. In the alternative, she urged the sentencing court to
run any state prison sentence it might impose upon Appellant concurrently
with the prison term he would be serving in Chester County. Id. at 3.
In response, the sentencing court indicated that any sentence it orders
must be consistent with the law which requires it to consider the gravity of
the offenses, the protection of the public, and Appellant’s rehabilitative
needs. Id. The sentencing court explained that it had contemplated the
nature of and circumstances surrounding the underlying offenses, the PSI
report, information provided by counsel, its independent observations and
Appellant’s history and conduct while on supervision. Id. at 4. The
sentencing court stressed that Appellant at age twenty-three showed
sufficient maturity and intelligence to comprehend the significance of his
actions, had worked just one day in his life, and had paid nothing toward the
fines and costs pending on Docket 4371 of 2009 for over two and one-half
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2
On February 10, 2015, Appellant was convicted of one count of aggravated
assault and sentenced to five years to ten years in a state prison.
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years or toward the other three dockets. Id. The sentencing court further
highlighted Appellant’s extensive criminal record including ten juvenile
adjudications one of which involved his being tried as an adult on Docket
4371 of 2009 for a theft of firearms and that he committed this crime while
still on court-ordered juvenile supervision.
Additionally, the sentencing court explained that since turning
eighteen, Appellant had garnered five additional convictions and the instant
matter was his fifth parole violation, four of which involved his being charged
with new crimes. In addition, while on adult supervision, Appellant failed to
follow through with court-mandated evaluations or treatments and instead
continued to use illegal drugs revealing “a myriad of rule violations, defiant
and noncompliant behavior.” Id. at 5. After detailing the above, the
sentencing court stated the following before handing down its
aforementioned sentence:
I have considered the extremely comprehensive and
detailed PSI, the character of [Appellant], arguments of his
counsel. In light of [Appellant’s] utter refusal or inability to
comply with the terms and conditions of probation or parole that
this Court has imposed upon him, total confinement is warranted
and, indeed, essential to vindicate the authority of the Court.
Conduct of [Appellant] indicates it is not just probable but
it appears to be absolutely certain he will commit more crimes if
given another sentence of probation or partial confinement.
Probation has proven to be an ineffective vehicle to
accomplish rehabilitation and an insufficient deterrent against
further antisocial behavior. Incarceration is warranted because a
lesser sentence would depreciate the seriousness of the
underlying crimes and his ongoing defiance of this Court and I
believe he is in need of treatment which can be most effectively
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provided by his commitment to an institution in a non-
community setting.
Id. at 5-6. The sentencing court proceeded to resentence Appellant as
follows:
On 4371 of 2009, 7 to 15 years, SCI, but credit for 1,489
days; on 5240 of 2012, two and a half to five years, SCI, credit
for 559 days; on 5642 of 2013, Count 2, two and a half to five
years, SCI, credit for 520 days; on 2550 of 2013, unexpired
balance of the max sentence but paroled immediately without
petition to the detainer of the state sentences.
This sentence is concurrent with the state sentence
received on Chester County Docket 2669 of 2014.
[Appellant] is to be made eligible for any drug and alcohol,
psychological, educational and/or vocational programs at his
assigned SCI, and a copy of the presentence investigation will be
delivered to his assigned SCI and made part of this record as
well.
Id. at 6.
Appellant filed a counselled post sentence motion on June 12, 2015,
and the sentencing court denied the motion on June 15, 2015. Appellant
filed a timely notice of appeal on July 8, 2015, and on that same day, the
sentencing court filed its Order pursuant to Pa.R.A.P. 1925. On July 29,
2015, appellate counsel filed his “Statement of Intent to File
Anders/McClendon Brief In Lieu of Statement of Errors Complained of on
Appeal pursuant to Pa.R.A.P. 1925(c)(4).” Anders v. California, 386 U.S.
738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In its
Answer filed on August 5, 2015, the Commonwealth indicated it would not
be filing a substantive response.
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In its Order of August 7, 2015, upon consideration of counsel’s having
filed pursuant to Pa.R.A.P. 1925(c)(4) a Statement of Intent to File
Anders/McClendon Brief in Lieu of Statement of Errors Complained of on
Appeal and the Commonwealth’s response thereto, the sentencing court
directed the Clerk of Courts to transmit the record to this Court.
Appellate counsel filed his petition for leave to withdraw as counsel
and Anders brief on November 16, 2015.3 We first consider that petition.
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. Goodwin, 928
A.2d 287, 290 (Pa. Super. 2007) (en banc). Before counsel is
permitted to withdraw, he or she must meet the following
requirements:
First, counsel must petition the court for leave to
withdraw and state that after making a conscientious
examination of the record, he has determined that the
appeal is frivolous; second, he must file a brief
referring to any issues in the record of arguable merit;
and third, he must furnish a copy of the brief to the
defendant and advise him of his right to retain new
counsel or to himself raise any additional points he
deems worthy of the Superior Court's attention.
Santiago, 602 Pa. at 178–79, 978 A.2d at 361.FN2
FN2. The requirements set forth in Santiago apply to cases
where the briefing notice was issued after August 25, 2009, the
date the Santiago opinion was filed. As the briefing notice in
this case was issued after Santiago was filed, its requirements
are applicable here.
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3
In response, on November 25, 2015, the Commonwealth informed this
Court it would not be filing a brief herein.
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Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012).
Herein, we have reviewed counsel’s petition for leave to withdraw,
counsel’s correspondence wherein he summarized the issues he believed
Appellant wished to raise on appeal and advised Appellant of his absolute
right to proceed pro se or with privately retained counsel, and the Anders
brief counsel prepared.4 These documents satisfy us that counsel has
complied with all of the foregoing requirements. We, therefore, turn to the
issues of arguable merit counsel presented in his Anders brief to make an
independent judgment as to whether the appeal is, in fact, wholly frivolous.
Santiago, supra.
Appellant first questions whether his aggregate sentence of seven
years to fifteen years’ incarceration was excessive. This issue concerns a
challenge to the discretionary aspects of Appellant’s sentence. A challenge
to the discretionary aspects of sentencing does not entitle an appellant to
review as of right. Commonwealth v. Allen, 24 A.3d 1058, 1064
(Pa.Super. 2011) 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)
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4
Appellant has not responded to the application to withdraw as counsel.
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whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f);5 and (4)
whether there is a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006).
Although counsel has not included the requisite Pa.R.A.P. 2119(f)
statement in his Anders brief herein, “[w]here counsel files an Anders
brief, this Court has reviewed the matter even absent a separate Pa.R.A.P.
2119(f) statement. Hence, we do not consider counsel's failure to submit a
Rule 2119(f) statement as precluding review of whether Appellant's issue is
frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super.
2015) (citations omitted). In addition, a determination of what constitutes a
substantial question must be evaluated on a case-by-case basis and such
question exists only when an appellant advances a colorable argument that
the sentencing judge's actions were either inconsistent with a specific
provision of the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process. Commonwealth v. Prisk, 13 A.3d 526,
533 (Pa.Super. 2011).
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5
In pertinent part, this Rule requires an appellant challenging the
discretionary aspects of his sentence to set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of the sentence; such statement shall immediately
precede the argument on the merits. Pa.R.A.P. 2119(f).
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Upon revoking one’s probation, a sentencing court may choose from
any of the sentencing options that existed at the time of the original
sentencing, including incarceration. 42 Pa.C.S.A. § 9771(b). However, the
imposition of total confinement upon revocation requires a finding that the
defendant has been convicted of another crime, his conduct indicates it is
likely he will commit another crime if he is not imprisoned, or such a
sentence is essential to vindicate the court’s authority of the court. 42
Pa.C.S.A. § 9771(c). Section 9721, which governs sentencing generally,
provides that in all cases where the court “resentences an offender following
revocation of probation ... the court shall make as a part of the record, and
disclose in open court at the time of sentencing, a statement of the reason
or reasons for the sentence imposed.” Id. Failure to comply with these
provisions “shall be grounds for vacating the sentence or resentence and
resentencing the defendant.” Id. Additionally, this Court has noted that the
reasons stated for a sentence imposed should reflect the sentencing court's
consideration of the criteria of the Sentencing Code, 42 Pa.C.S.A. § 9701 et
seq., the circumstances of the offense, and the character of the offender.
Commonwealth v. DeLuca, 418 A.2d 669, 670 (Pa.Super. 1980).
Upon our review of the sentencing transcript and as the above-quoted
language therefrom evinces, we find the sentencing court appropriately
detailed on the record its reasons for sentencing Appellant as it did. It had
the benefit of a detailed PSI report and heard defense counsel’s arguments.
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It considered Appellant’s bipolar diagnosis and juvenile adjudication history.
It found particularly troubling Appellant’s inability to abide by the terms and
conditions of his probation and parole in the past and the violent nature of
his crimes, especially those which led to the instant violation. Therefore, we
find no merit to any claim under these circumstances that Appellant’s
sentence was excessive.
Appellate counsel further directs this Court’s attention to the
sentencing court’s failure to advise Appellant of his appeal rights on the
record. Instead, it directed defense counsel to “please take an opportunity
to explain to your client his rights to appeal after today.” N.T., 6/5/15, at
7. A sentencing court must inform a defendant that an appeal must be filed
within thirty days of the entry of its order. See generally Pa.R.Crim.P.
704(c) (dealing with a trial court's duty to inform the defendant of his post-
sentencing and appellate rights and the time within which such rights must
be exercised); See also Commonwealth v. Wright, 846 A.2d 730, 735
(Pa.Super. 2004). While the sentencing court failed to apprise Appellant of
these rights on the record, defense counsel indicated it would inform
Appellant thereof and, in fact, filed a timely post sentence motion and notice
of appeal on Appellant’s behalf. As such, the trial court’s failure to articulate
Appellant’s appellate rights on the record and request that defense counsel
do so clearly did not prejudice Appellant.
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Consequently, after an independent review of this appeal, we find
Appellant's issues to be frivolous, and we grant counsel's petition to
withdraw.
Petition to Withdraw Granted. Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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