Com. v. Stewart, J., Jr. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES ALLEN STEWART, JR.,
Appellant No. 1332 MDA 2015
Appeal from the Judgment of Sentence July 21, 2015
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000234-2007
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 29, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Adams County, which imposed a probation revocation
sentence—Appellant’s third on the underlying offense of Conspiracy to
Commit Burglary—of one to three years’ incarceration. Appellant contends
that the sentence was excessive and represents an abuse of the court’s
sentencing discretion. In addition, Appellant's counsel seeks to withdraw
from representation pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon
review, we affirm judgment of sentence and grant counsel's petition to
withdraw.
In 2007, Appellant entered a negotiated guilty plea to Conspiracy to
Commit Burglary, and the court sentenced him to serve three months to 23
months in the Adams County Adult Correctional Complex. For his first
*Former Justice specially assigned to the Superior Court.
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revocation of probation occurring on December 27, 2012, he was sentenced
to serve 36 months of Intermediate Punishment, with six months in a
restrictive setting and the remainder on probation. For his second
revocation occurring on June 27, 2013, Appellant again acknowledged his
violations and received a revocation sentence of 36 months of Intermediate
Punishment, with six months in the re-entry facility, three months on house
arrest, and the remainder on probation.
For this, his third revocation occurring on July 21, 2015, Appellant
acknowledged missing one scheduled appointment with the Probation
Office.1 The court accepted Appellant’s acknowledgement of having missed
at least one appointment and proceeded with sentencing. N.T. at 5. The
Commonwealth’s recommendation was no less than one-and-one-half to
three years’ incarceration. N.T. at 2, 5. As noted, supra, the court imposed
a revocation sentence of one to three years’ incarceration in a state
correction institution. Appellant timely filed this direct appeal.
As a preliminary matter, we address counsel's petition to withdraw.
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (quoting
Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997)) (“When
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1
The probation officer alleged Appellant had missed a total of six
appointments with York County Probation and Adams County Probation over
a span of 15 months. Just one month prior to missing his final two
appointments, Appellant had signed a written warning, dated May 8, 2015,
agreeing to attend all scheduled office appointments. N.T., 7/21/15, at 4-5;
C.R. #82 “Motion for Revocation,” dated June 26, 2015.
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faced with a purported Anders brief, this Court may not review the merits of
the underlying issues without first passing on the request to withdraw.”).
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). By contrast, if counsel's petition and
brief satisfy Anders, we will then undertake our own review of
the appeal to determine if it is wholly frivolous. If the appeal is
frivolous, we will grant the withdrawal petition and affirm the
judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate's brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has expounded further upon the
requirements of Anders:
in the Anders brief that accompanies court-appointed counsel's
petition to withdraw, counsel 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
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on point that have led to the conclusion that the appeal is
frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Our examination of counsel's petition to withdraw and his Anders brief
leads us to conclude that counsel has substantially complied with the above
requirements.2 Once “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.’” Commonwealth v. Flowers, 113 A.3d
1246, 1248 (Pa.Super. 2015) (quoting Santiago, 978 A.2d at 354 n. 5).
In his brief, Appellant's counsel states one issue that might arguably
support an appeal: “Did the trial court err in sentencing the Appellant to
serve no less than one (1) nor more than three (3) years in a state
correctional institution for his third revocation of sentence imposed for his
conviction of Criminal Conspiracy to Commit Burglary [18 Pa.C.S.A. §
903(a)(1)]” Anders brief at 4. This issue implicates the discretionary
aspects of Appellant's sentence, which is reviewable by this Court in the
revocation setting. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super.
2013) (en banc).
Where an appellant challenges the discretionary aspects of a sentence,
there is no automatic right to appeal, and an appellant's appeal should be
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2
Appellant has not responded to counsel’s petition to withdraw.
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considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 163 (Pa.Super. 2007). As we observed in Commonwealth
v. Moury, 992 A.2d 162 (Pa.Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction by satisfying a
four-part test:
[W]e 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
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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super.
2006)).
Moreover, our standard of review pertaining to revocation sentences is
as follows:
In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed
on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913
(Pa.Super. 2000). . . . Once probation has been revoked, a
sentence of total confinement may be imposed if any of the
following conditions exist: (1) the defendant has been convicted
of another crime; or (2) the conduct of the defendant indicates
that it is likely that he will commit another crime if he is not
imprisoned; or, (3) such a sentence is essential to vindicate the
authority of court. 42 Pa.C.S.A. § 9771(c); Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).
Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa.Super. 2006).
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Instantly, it appears that Appellant has waived his discretionary
aspects of sentencing claim for failing to preserve it at sentencing or in a
post-sentence motion pursuant to Rule 720. See Commonwealth v.
Shugars, 895 A.2d 1270, 1273–74 (Pa.Super. 2006) (quoting
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005) (“[I]ssues
challenging the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.”).
Assuming arguendo that the issue is preserved, however, we conclude
that Appellant is not entitled to relief. The Anders brief includes a Rule
2119(f) statement, wherein Appellant claims that his one to three year
revocation sentence—his third revocation sentence—for his conviction of
Criminal Conspiracy to Commit Burglary was “excessive” and a product of
the court’s “abuse of discretion.” Anders brief at 16.
“The determination of whether a substantial question exists must be
determined on a case-by-case basis.” Commonwealth v. Hartman, 908
A.2d 316, 320 (Pa.Super. 2006) (citation omitted). This Court has explained
that: “[a] substantial question exists where an 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.” Id.
(quoting Commonwealth v. Koren, 646 A.2d 1205, 1208 (Pa.Super.
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1994)). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Commonwealth v. Goggins, 748
A.2d 721, 726 (Pa.Super. 2000) (en banc) (emphasis in original).
A claim of a harsh or excessive sentence can, at times, raise a
substantial question. See Commonwealth v. Kalichak, 943 A.2d 285, 292
(Pa.Super. 2008). However, this is not such a case, as the Anders brief
baldly asserts that Appellant’s sentence is “excessive” without providing any
reason to support the assertion. Such a bald assertion of sentence
excessiveness does not raise a substantial question. See Commonwealth
v. Trippett, 932 A.2d 188 (Pa.Super. 2007). Nevertheless, our review of
the record reveals no indication that Appellant’s sentence was excessive or
disproportionate to his violations. The court acknowledged that this was
Appellant’s third revocation of probation and that he served county jail time
and house arrest in his prior two revocation sentences. To the probation
officer’s report citing a string of missed appointments, Appellant provided
excuses and explanations to all except one. In this respect , the court was
in the best position to evaluate Appellant’s character, demeanor, and
whether he exhibited a defiant or indifferent attitude. The underlying
offense of Conspiracy to Commit burglary, moreover, carried a possible
maximum sentence of twenty years’ incarceration.
Based on this record, we discern no indication that the court based its
sentence on partiality, prejudice, bias or ill will. The court was familiar with
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Appellant’s history, and reasonably determined that a sentence of
incarceration at this point was necessary to vindicate the authority of the
court. Accordingly, there is no basis upon which to conclude that the
sentence was excessive or disproportionate. Appellant’s issue challenging
the discretionary aspects of his sentence is, therefore, wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2016
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