Com. v. Krolick, R. ( 2014 )

J-S58032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT KROLICK
Appellant No. 365 WDA 2014
Appeal from the Judgment of Sentence February 5, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000344-2009
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT KROLICK
Appellant No. 366 WDA 2014
Appeal from the Judgment of Sentence February 5, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000345-2009
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 04, 2014
Appellant, Robert Krolick, appeals from the judgment of sentence
entered in the Jefferson County Court of Common Pleas, following revocation
_________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58032-14
The relevant facts and procedural history of this appeal are as follows.
On October 7, 2009, Appellant pled guilty to multiple offenses at separate
docket numbers. At No. 344 of 2009, Appellant pled guilty to delivery of a
controlled substance. The court accepted the plea and sentenced Appellant
to five (5) months to two (2) years less one (1) day of imprisonment,
followed by three (3) years plus one (1) day of probation. At No. 345 of
2009, Appellant pled guilty to theft by deception. The court accepted the
plea and sentenced Appellant to tw
Appellant subsequently violated the terms of his probation. The court
conducted a revocation hearing on May 5, 2010. At the conclusion of the
hearing, the court revoked probation at both docket numbers. At No. 344 of
2009, the court re-
intermediate punishment. At No. 345 of 2009, the court re-sentenced
at No. 344 of 2009.
Appellant again violated the terms of his probation. The court
conducted a revocation hearing on December 15, 2010. At the conclusion of
the hearing, the court revoked both the intermediate punishment and the
probation sentences. At No. 344 of 2009, the court re-sentenced Appellant
unrelated docket number. At No. 345 of 2009, the court re-sentenced
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imposed at No. 344 of 2009.
Appellant subsequently violated his probation after pleading guilty to
new offenses. The court conducted a revocation hearing on February 5,
2014. At the conclusion of the hearing, the court revoked all probation. At
No. 344 of 2009, the court re-sentenced Appellant to six (6) to fifteen (15)
-sentenced Appellant
court ordered both sentences to run consecutive to another sentence at an
unrelated docket number. Appellant timely filed a post-sentence motion on
Correctional Institution constitute an extraordinarily long period of
incarceration, and are e -
Sentence Motion, filed 2/14/14, at 2). On February 19, 2014, the court
denied the post-sentence motion.
Appellant timely filed a notice of appeal on March 4, 2014. On March
6, 2014, the court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed a Rule 1925(b) statement on March 21, 2014.
As a preliminary matter, appellate counsel seeks to withdraw his
representation 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). Anders and Santiago require counsel to: 1)
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petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007).
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[1]
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
____________________________________________
1
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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* * *
Under Anders, the right to counsel is vindicated by
at
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
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
peal
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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw
representation. The petition states counsel reviewed the record and all
correspondence with Appellant, and counsel concluded the appeal would be
wholly frivolous. Counsel also supplied Appellant with a copy of the
withd
proceed pro se or with new privately retained counsel to raise any additional
Anders
brief, counsel provides a summary of the facts and procedural history of the
case. Counsel refers to facts in the record that might arguably support the
issue raised on appeal and offers citations to relevant law. The brief also
frivolous. Thus,
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counsel has substantially complied with the requirements of Anders and
Santiago.
As Appellant has filed neither a pro se brief nor a counseled brief with
new privately retained counsel, we review this appeal on the basis of the
issue raised in the Anders brief:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
-LEVEL
PROBATION AND RE-SENTENCED HIM TO SERVE AN
AGGREGATED SENTENCE OF A MINIMUM SIX (6) YEARS
THREE (3) DAYS TO A MAXIMUM OF SEVENTEEN (17)
CORRECTIONAL
PROBATION.
(Anders Brief at 3).
On appeal, Appellant asserts the court imposed an unreasonable
sentence in light of the probation violations at issue. Further, Appellant
contends the court failed to provide adequate reasons to justify the
sentence. Appellant concludes the court abused its discretion by imposing
discretionary aspects of his sentence. See Commonwealth v. Lutes, 793
A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing).
When reviewing the outcome of a revocation hearing, this Court is
limited to determining the validity of the proceeding and the legality of the
judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d
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violation meriting revocation when it shows, by a preponderance of the
evidence, that the prob
his probation, and that probation has proven an ineffective rehabilitation tool
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super. 2007), appeal
denied
sentence of probation is that the defendant will not commit a further
Commonwealth v. Infante, 585 Pa. 408, 420, 888 A.2d 783,
790 (2005) (quoting Commonwealth v. Mallon, 406 A.2d 569, 571
(Pa.Super. 1979)).
Notwithstanding the stated scope of review suggesting only the
legality of a sentence is reviewable, an appellant may also challenge the
discretionary aspects of a sentence imposed following revocation.
Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). Challenges to
the discretionary aspects of sentencing do not entitle an appellant to an
appeal as of right. Id. at 912. Prior to reaching the merits of a
discretionary sentencing issue:
[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
(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).
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
decision to exceptional Commonwealth v. Williams, 562 A.2d
1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original) (internal
quotation marks omitted).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
the
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were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
Sierra, supra at 912-13. A claim that a sentence is
Rule 2119(f) statement sufficiently articulates the manner in which the
sentence imposed violates a specific provision of the Sentencing Code or the
norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d
at 627. A bald assertion of excessiveness does not raise a substantial
question. Commonwealth v. Trippett, 932 A.2d 188 (Pa.Super. 2007).
Instantly, Appellant does not identify a specific provision of the
Sentencing Code or a fundamental norm underlying the sentencing process
that the court violated in imposing the latest revocation sentence. Absent
substantial question. See id.
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sentence motion did not include this claim. Appellant also failed to raise the
claim at the revocation hearing. Instead, Appellant asserts the claim for the
first time on appeal. Thus, the claim is waived. See Mann, supra.
Even if Appellant had properly preserved the claim, he would not be
entitled to relief. At the time of re-sentencing, the court noted that
Appellant had pled guilty to the new offenses of possession of drug
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paraphernalia and forgery. Thereafter, the court made the following on-the-
record statement:
boot camp and other things, that you had a job and not
only came down with a drug paraphernalia charge but then
you got involved in forgery, I had it set for a maximum
sentence, which would be approximately nine and a half
years to 17 years.
So then after the assistant district attorney was saying
that she thought she would give you some consideration, I
separate sets of charges, because of the amount of time
that it should go to no violations. I think you need some
more serious time.
(See N.T. Revocation Hearing, 2/5/14, at 5.) In its opinion, the court
elaborated on its reasons for the sentence imposed:
Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of total
makes it likely that he will commit another crime if he is
not imprisoned or to vindicate the authority of the court.
As the record reflects, both reasons were implicated in this
case. [Appellant] had already been given the benefit of
boot camp and other rehabilitative measures and had
proven that they were ineffective to curb his criminal
kind of conduct for which he was already on probation.
Accordingly, more exacting consequences were both
warranted and appropriate under the circumstances, and
as the record reflects, the [c]ourt adequately considered
all relevant circumstances prior to imposing sentence.
(See Trial Court Opinion, filed March 25, 2014, at 1-2.)
Here, the court emphasized that prior, less severe, sentences had
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support the sentence imposed. See Commonwealth v. Malovich, 903
A.2d 1247, 1253 (Pa.Super. 2
sentencing philosophy is not required; rather, record as whole must reflect
of offender). Accordingly, we affirm the judgment of sentence and grant
Judgment of sentence affirmed; petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
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