Com. v. Fricker, P. ( 2019 )

J-S45005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
PAUL THOMAS FRICKER,
Appellant No. 560 EDA 2019
Appeal from the Judgment of Sentence Entered January 9, 2019
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004845-2010
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 07, 2019
Appellant, Paul Thomas Fricker, appeals from the judgment of sentence
of 6 to 36 months’ incarceration, followed by 2 years’ probation, imposed after
the court revoked a term of probation he was serving following his guilty plea
to criminal attempt to commit aggravated indecent assault. On appeal,
Appellant seeks to challenge the discretionary aspects of his sentence.
Additionally, his counsel, Patrick J. Connors, Esq., seeks to withdraw his
representation of Appellant pursuant to Anders v. California, 386 U.S. 738(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After
careful review, we affirm Appellant’s judgment of sentence and grant counsel’s
petition to withdraw.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant pled guilty to the above-stated offense on January 1, 2011.
Pursuant to the negotiated plea, he was sentenced to 2½ to 5 years’
incarceration, followed by 5 years’ probation. On January 9, 2019, the court
conducted a revocation of probation and resentencing hearing. There,
Appellant stipulated to having committed technical violations of the conditions
of his probation. N.T., 1/9/19, at 3. The court resentenced him to a term of
6 to 36 months’ incarceration, with a consecutive term of 2 years’ probation.
Appellant did not file a post-sentence motion, but he filed a timely notice
of appeal on February 7, 2019. The court ordered him to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal and, in response,
Attorney Connors filed a Rule 1925(c)(4) statement of his intent to file an
Anders brief and petition to withdraw. The court issued a Rule 1925(a)
opinion on March 11, 2019.
On June 14, 2019, Attorney Connors filed with this Court a petition to
withdraw and an Anders brief, discussing the following issue that Appellant
seeks to raise on appeal:
I) Whether the term of incarceratin [sic] imposed herein is harsh
and excessive under the circumstances due to the court’s decision
to render a state sentence prior to [Appellant’s] making any
statement[?]
Anders Brief at 3 (unnecessary capitalization omitted).
Attorney Connors concludes that this issue is frivolous, and that
Appellant has no other, non-frivolous claims he could pursue herein.
Accordingly,
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this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under 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 also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his 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, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
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In this case, Attorney Connors’ Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claim, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Connors also states in his petition to
withdraw that he has supplied Appellant with a copy of his Anders brief.
Additionally, he attached to his petition to withdraw a letter directed to
Appellant, in which he informed Appellant of the rights enumerated in
Nischan. Accordingly, counsel has complied with the technical requirements
for withdrawal. We will now independently review the record to determine if
Appellant’s issue is frivolous, and to ascertain if there are any other, non-
frivolous claims he could pursue on appeal.
Appellant essentially takes issue with a comment by the court at the
outset of the revocation/resentencing hearing. Specifically, after defense
counsel requested a “county sentence” of 6 to 23 months’ incarceration, the
court replied, “It is not going to be a county sentence. I’ll tell you that right
off the bat, it is not going to be county.” N.T. at 4, 5. Ultimately, the court
imposed a term of incarceration of 6 to 36 months’ imprisonment, ensuring
that Appellant will serve his incarceration at a state correctional institution.
Appellant now contends that the court’s
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[o]rdering a state term of incarceration [was] unfair and
unreasonable to [Appellant] because this determination was made
by the court prior to granting [Appellant] the opportunity to make
a statement on his own behalf expressing remorse for his actions.
Had the court given [Appellant] the chance to express himself with
his right of allocution prior to its determination that it would
impose state time, the sentence imposed may have been far more
lenient, as requested by [Appellant’s] attorney.
***
[A]lthough the court allowed [Appellant] to speak…, its
expression that it was imposing a state sentence “right off the bat”
indicates that [Appellant’s] opportunity for allocution was
meaningless.
Anders Brief at 10, 11.
This Court has held that, while the failure to grant a defendant the right
of allocution constitutes a legal error, such a claim is nevertheless waived if
not raised before the trial court. Commonwealth v. Jacobs, 900 A.2d 368,
377 (Pa. Super. 2006) (en banc). Here, Appellant did not raise before the
trial court at sentencing, or in a post-sentence motion, his argument that his
allocution was “meaningless” because the court had already decided the
sentence it was going to impose. Accordingly, that issue is waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”).
In any event, we would reject Appellant’s argument on the merits.
Initially, the court did permit Appellant to exercise his right to allocution, and
Appellant stated the following:
[Appellant]: I have had some time to reflect on this and I just like
I said I have really had time to think about this and I really want
to be a member of society again. I want to do what is right, get
a job, pay my taxes, do stuff like that. I want to be able to do
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what is right for the community for once, instead of just screwing
up.
N.T. at 5.
It is apparent that the court concluded that Appellant’s best chance at
becoming a productive member of society was to serve his sentence in state
prison, which has more programs to assist Appellant’s rehabilitation. See id.
at 6 (the court’s declaring that state prison has “a better treatment option,
that is the key”); id. at 7 (the court’s informing Appellant that state prison
was in his “best interest” because “[t]he state has better resources to help
you”). The court also heard from Appellant’s probation officer, who
recommended a state sentence. Id. at 7. After accepting the probation
officer’s recommendation and imposing Appellant’s sentence, the court ended
the proceeding with the following exchange with Appellant:
THE COURT: If you really want to get better you [have] got to
push for yourself.
[Appellant]: And[,] believe it or not[,] that is actually what I have
been really contemplating in the last four months since I have
been here.
THE COURT: Well that is good.
[Appellant]: I am just tired of repeating the same mistakes. It is
time I grew up and put on the big boy pants.
THE COURT: All right, well good luck to you. We really hope you
take advantage of it.
Id. at 10. As Attorney Connors observes, “[t]he court’s conversation with
[Appellant] during the sentencing hearing indicates that the imposition of his
sentence was not above the recommendation of the Board of Probation and
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Parole and was not made with any partiality, prejudice, bias or ill-will.”
Anders Brief at 11-12.
In light of the record as a whole, we would agree with Attorney Connors.
Therefore, even had Appellant preserved this claim for our review, we would
conclude that the court did not abuse its sentencing discretion. See
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (“When
considering the merits of a discretionary aspects of sentencing claim, we
analyze the sentencing court’s decision under an abuse of discretion
standard.”) (citation omitted). As such, we affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/19
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