Com. v. Dershem, Jr., M. ( 2014 )

J-S35036-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL WAYNE DERSHEM, JR., :
:
Appellant : No.(s) 2291- 2294 MDA 2013
Appeal from the Judgment of Sentence October 10, 2013,
in the Court of Common Pleas of Union County
Criminal Division at No(s): CP-60-CR-0000010-2013,
CP-60-CR-0000070-2011, CP-60-CR-0000071-2011,
CP-60-CR-0000074-2011
BEFORE: DONOHUE, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 17, 2014
Michael Wayne Dershem, Jr. (Appellant), appeals from the judgments
intermediate punishment sentence.
a petition to withdraw and a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). ithdraw and affirm the
judgments of sentence.
As a result of several convictions, Appellant was participating in an
intermediate punishment program. On June 25, 2013, the Commonwealth
al
court held a hearing on October 10, 2013. At that hearing, Appellant
* Retired Senior Judge assigned to the Superior Court.
J-S35036-14
admitted to violating conditions of his intermediate punishment program.
to an aggregate term of incarceration of 5 to 12 years.
Appellant timely filed a post-sentence motion to modify his sentence.
After holding a hearing on that motion, the trial court denied it. Appellant
timely filed a notice of appeal. The trial court directed Appellant to comply
with Pa.R.A.P. 1925(b), and Appellant timely filed a Pa.R.A.P. 1925(b)
statement.1
withdraw as counsel pursuant to Anders and Santiago, supra.
counsel had failed to
comply with the requirements of Santiago
withdraw and remanded this case with instructions for counsel to file either
Anders petition and brief. On July 17, 2014,
counsel timely filed a second Anders brief and petition to withdraw as
counsel. Attached to this petition was a certificate of service indicating that
counsel had served Appellant with a copy of his new petition to withdraw on
July 17, 2014.
1
On December 13, 2013, the trial court entered a scheduling order wherein
not comply with Pa.R.A.P. 1925(b)(2) because it allowed Appellant only 10
days to file a statement of errors complained of on appeal, instead of a
minimum of 21 days to file such a statement.
Appellant filed his Pa.R.A.P. 1925(b) statement on January 7, 2014,
he
time period allowed by Pa.R.A.P. 1925(b)(2). We, therefore, conclude that
Appellant timely filed his Pa.R.A.P. 1925(b) statement.
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As we previously stated,
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
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
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we hold that in the Anders brief that accompanies
court-
(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 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.
When faced with a purported Anders brief, we may not review the
merits of the underlying issues without first deciding whether counsel has
requested properly permission to withdraw. Commonwealth v. Wimbush,
951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted). If counsel has met
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to make a full examination of the proceedings and make an independent
Santiago, 978 A.2d at 354 n.5.
We conclude that counsel has complied with the requirements outlined
above. Counsel has filed a petition with this Court stating that after
reviewing the record, he finds this appeal to be wholly frivolous. Second
Petition to Withdraw as Counsel, 7/17/2014, at 1. Counsel has filed a brief
which includes summaries of the facts and procedural history of the case and
sets forth one issue that he believes might arguably support an appeal.
Second Anders Brief at 15-19. at
the appeal is frivolous and includes citation to relevant authority. Id. at 16.
Finally, counsel has attached to his petition the letter that he sent to
Appellant, which enclosed Anders brief and
advised Appellant of his right to proceed pro se or with private counsel and
to raise any additional issues that he deems worthy of this Co
consideration.
We therefore proceed to an independent review of the record and the
issue that counsel stated arguably supports an appeal. The sole issue
presented by counsel in the second Anders brief is a challenge to the
Anders Brief at 16-
19.
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Preliminarily, we note that the rules for resentencing a defendant
following the revocation of an intermediate punishment sentence are
analogous to that applicable to re-sentencing following probation revocation
court [are] the same as the alternatives available at the time of initial
Thus, in evaluating revocation of an
intermediate punishment sentence, this Court applies the same standard it
applies when reviewing a sentence imposed after probation revocation. See
Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013).
It is well-established that
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005)
(quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)).
A criminal defendant does not have an absolute right to challenge the
discretionary aspects of his sentence on appeal. See Commonwealth v.
Bishop, 831 A.2d 656, 660 (Pa. Super. 2003). Before this Court will
consider such a claim, two preliminary requirements must be met:
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First, the appellant must set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of his sentence.
[Pa.R.A.P. 2119(f)]. Second, he must show that there is a
substantial question that the sentence imposed is not
appropriate under the Sentencing Code. [42 Pa.C.S. § 9781(b)].
Id. (citations omitted).
determined on a case-by- Commonwealth v. Hartman, 908
A.2d 316, 320 (Pa. Super. 2006) (citation omitted). This Court has
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the Id.
(quoting Commonwealth v. Koren, 646 A.2d 1205, 1208-1209 (Pa. Super.
1994)). Finally, we note that issues challenging the discretionary aspects of
sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Commonwealth
v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003). Absent such efforts, an
objection to a discretionary aspect of a sentence is waived. Id.
Instantly, Appellant filed a post-sentence motion challenging the
discretionary aspects of his sentence, and counsel has included in his
Anders brief a Rule 2119(f) statement. The remaining question, therefore,
is whether Appellant has raised a substantial question for our review.
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In his Anders brief, counsel argues that, in imposing the five-to-
twelve-year term of incarceration, the sentencing court failed to consider the
required by 42 Pa.C.S. § 9725. Second Anders Brief at 15, 16-17.
Additionally, Appellant contends that the trial court failed to consider the
sentence. Id. at 16-17.
We begin by noting that sentencing guidelines do not apply to
Commonwealth
v. Coolbaugh
following a revocation of [intermediate punishment], the trial court is limited
only by the maximum sentence that it could have imposed originally at the
Commonwealth v.
MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) (citation omitted).
Accordingly, we find that this issue does not raise a substantial question for
our review.
However, this Court has recently reiterated that arguments that the
sentencing court altogether failed to consider relevant sentencing factors
does present a substantial question. Commonwealth v. Dodge, 77 A.3d
1263, 1272 n. 8 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).
Although Appellant presents a substantial question, no relief is due as
the record belies his claim. Prior to sentencing, the trial court heard evidence
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and alcohol issues, his remorsefulness about the
underlying violations that resulted in his removal from the drug court
-11.
The trial court noted that it had the opportunity to review the pre-
sentence investigation report prior to sentencing. Id.
sentencing judge had the benefit of a presentence investigation report, it will
be presumed that he or she was aware of the relevant information regarding
the defendant's character and weighed those considerations along with
Commonwealth v. Boyer, 856 A.2d 149, 154
(Pa. Super. 2004). Nonetheless, after hearing from the district attorney,
defense counsel, and Appel
The derogatory comments about a judge [which, along
with his repeated violation of the GPS monitoring conditions,
destruction of the GPS monitoring device, failure to appear for
scheduled counsel sessions, use of synthetic marijuana, and use
drug court program and revocation of his intermediate
punishment sentence,] will not factor into my sentence at all. If
that became a factor for a judge to consider in imposing
sentence, there would be a lot of attorneys that would have to
squirm. I understand from the treatment court perspective it is
a different situation because of the approach. In criminal court
As far as revising the treatment court program, that is not
for me to decide. The decision has been made by the treatment
court team. It is not my place to second guess their decision. If
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they would have wanted to reconsider it, they would have done
that in their proceedings. So that is not for me to decide.
***
The first issue to
mitigating issue. While I would acknowledge that he is a young
man of 20, the criminal record he has managed to compile in his
short history is --
implies positive things but
It shows an inability of [Appellant] to follow rules. He then has -
- was placed on a consent decree in 2006 for a variety of crimes
but the fines weren
the year 2007, theft; in 2008 felony criminal trespass, placed in
a variety of treatment facilities, Susquehanna House, I saw
something else in here, Bethesda, the Be Challenged Program,
the Clancy Alternative education and Day Treatment Program.
And then in 2010, possession of marijuana and then he just
continued with his behaviors in 2011.
the
county level that can be provided to address his deviant
behavior.
The [c]ourt would then note that he was given the
opportunity on February 27th of 2013 to participate in one of the
best programs that the [c]ourt is -- o
address addiction issues.
to cooperate and be treated. He was placed in the [drug court]
program in February 27th
year or not, but within five, at most six days, was his first
and then it was just constant. I think he holds the record for the
most violations in the shortest period of time in treatment court.
There is nothing that the county has to offer [Appellant].
this [c]ourt cannot ignore his substantial criminal history; and
-- I
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offense. My understanding is that that would be an offense
gravity score of 10.
I do now.
Yes, an offense gravity score of 10, the prior record score
of 5, the standard range is 5 years.
You have accumulated a prior record score of 5 before you
even hit 21 years old, and you have shown absolutely no
redeeming behaviors or qualities which would earn you any
leniency from this [c]ourt.
Id. at 14-16.2
2
The court reiterated the reasoning behind its sentence at the November 4,
is sentence stating,
fashioning the sentence. The [c]ourt would note that it could
have imposed an eight-and-a-half to, I think, close to thirty year
sentence.
The -- and I think I went over these on the initial
eligibility because of his behavior dating back a decade.
***
pt the representations that the age warrants a
lesser sentence. He has a history of noncompliance. He was
given the opportunity of the 17th
Court which bends over backwards to help people, takes into
consideration their relap
The sentence imposed by the [c]ourt, while the [c]ourt is
not bound by the guideline range in a revocation, was directly in
the standard range [of the suggested sentencing guidelines for
the underlying offenses]. It was not excessive, it was not harsh.
Other than his age, there was not one mitigating factor that
would warrant going out of the standard range in this case. If
anything, it could be argued that the [c]ourt could have gone
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Our review of the record demonstrates that the trial court considered
the limited mitigating evidence presented by Appellant in fashioning his
sentence. Additionally, the court considered the history, character, and
condition of Appellant and the gravity of the underlying offenses. Finally, in
deciding to sentence Appellant to a term of total confinement, it is clear the
trial court determined that, because Appellant has proven his inability to
meet the requirements of county-based treatment and services, correctional
treatment is warranted. Id. Accordingly, we find no abuse of discretion.
Judgments of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
into the aggravated range because of his pitiful performance in
treatment court.
been placed in.
N.T., 11/4/2013, at 6-7.
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