Com. v. Dugan, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANIEL JUSTIN DUGAN
Appellant No. 1284 WDA 2013
Appeal from the Judgment of Sentence June 26, 2013
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001503-2005,
CP-25-CR-0001508-2005
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 18, 2014
Appellant, Daniel Justin Dugan, appeals from the judgment of sentence
entered on June 26, 2013, in the Court of Common Pleas of Erie County.
Dugan’s appointed counsel, Emily Mosco Merski, Esquire, seeks to withdraw,
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). We
affirm the judgment of sentence and grant counsel’s petition to withdraw.
On July 5, 2005, Dugan entered into a guilty plea at Docket No. 1503
of 2005 to one count of burglary1 in violation of 18 PA.CONS.STAT.ANN. §
3502(a) and at Docket No. 1508 of 2005 to one count of corruption of
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1
Dugan, along with his co-defendant, burglarized Plantscape Greenhouse,
Dugan’s former employer, stealing a safe and removing the money
contained therein.
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minors2 in violation of 18 PA.CONS.STAT.ANN. § 6301(a)(1). The trial court
sentenced Dugan on July 25, 2005, to serve a period of 11½ to 23 months’
imprisonment at Docket No. 1503 of 2005 to be served consecutive to a
period of incarceration of 2 to 4 years’ imprisonment and to a five-year
probationary period at Docket No. 1508 of 2005. Dugan’s probation was
subsequently revoked and on October 26, 2011, he was resentenced.
Dugan’s probation was revoked, for a third time on June 26, 2013. That
same day, the trial court resentenced Dugan to his original sentence, 11½ to
23 months’ imprisonment at Docket No. 1503 of 2005 to be served
consecutive to a period of 2 to 4 years’ imprisonment and to a five-year
probationary period at Docket No. 1508 of 2005. Counsel filed a timely
motion to modify and reduce sentence, which was subsequently denied. A
timely appeal followed.
On appeal Dugan raises the following issue for our review:
Whether the Appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Pennsylvania Sentencing Code?
Anders Brief, at 3.
Preliminarily, we note that Attorney Merski has petitioned to withdraw
and has submitted an Anders brief in support thereof contending that
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2
Dugan was engaged in sexual relations with a fifteen-year-old female for a
period of seven months during which time the two smoked marijuana and
consumed alcoholic beverages.
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Dugan’s appeal is frivolous. Our Supreme Court has articulated the
procedure to be followed when court-appointed counsel seeks to withdraw
from representing an appellant on direct appeal:
[I]n 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
arguably believes 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.
Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361
(2009).
We note that Attorney Merski has complied with all of the
requirements of Anders as articulated in Santiago.3 Additionally, Attorney
Merski confirms that she sent a copy of the Anders brief to Dugan as well as
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3
Three attorneys have entered their appearance in this matter—all from the
public defender’s office. The last of them to enter her appearance, on July
8, 2014, is Nicole Denise Sloan, Esquire. Attorney Merski filed the brief;
hers is the only name on the brief. It is unclear from the record why
multiple attorneys from the public defender’s office have entered their
appearances. After Attorney Sloan’s entry of appearance, Attorney Merski
filed a second motion to withdraw indicating that “an appearance was
entered by Assistant Public Defendant Nicole Sloane”; therefore, “[Dugan]
will continue to be adequately represented should the instant application be
granted.” Petition for Leave to Withdraw As Counsel, 7/14/14, at ¶¶ 2-3.
This second motion is moot. As discussed in detail below, we agree that the
issue raised on appeal is frivolous and grant the initial motion to withdraw as
counsel.
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a letter explaining that he has the right to proceed pro se or the right to
retain new counsel. A copy of the letter is appended to the petition, as
required by this Court’s decision in Commonwealth v. Millisock, 873 A.2d
748 (Pa. Super. 2005), in which we held that “to facilitate appellate review,
… counsel must attach as an exhibit to the petition to withdraw filed with this
Court a copy of the letter sent to counsel’s client giving notice of the client’s
rights.” Id., at 749 (emphasis in original). See also Commonwealth v.
Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (noting Santiago “did not
abrogate the notice requirements set forth in Millisock”). As such, we will
proceed to examine the issue set forth in the Anders brief, which Dugan
believes to be of arguable merit. We agree that the issue presented is
frivolous.
“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. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013) (citation
omitted), appeal denied 81 A.3d 75 (2013). Appellate review “is limited to
determining the validity of the probation revocation proceedings and the
authority of the sentencing court to consider the same sentencing
alternatives that it had at the time of the initial sentencing.” 42
PA.CONS.STAT.ANN. § 9771(b); Commonwealth v. Gheen, 688 A.2d 1206,
1207-1208 (1997) (the scope of review in an appeal following a sentence
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imposed after probation revocation is limited to the validity of the revocation
proceedings and the legality of the judgment of sentence).
Dugan argues that his sentence was excessive and the trial court failed
to consider the factors enumerated in Section 9721(b) of the Sentencing
Code. Such claims are considered a challenge to the discretionary aspects of
his sentence.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274
(Pa. Super. 2004). When challenging the discretionary aspects of the
sentence imposed, an appellant must present a substantial question as to
the inappropriateness of the sentence. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be met before we
will review the challenge on its merits.” McAfee, 849 A.2d at 274. “First, an
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 a
sentence.” Id. “Second, the appellant must show that there is a substantial
question that the sentence imposed is not appropriate under the Sentenicng
Code.” Id. That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at
365. We examine an appellant’s Rule 2119(f) statement to determine
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whether a substantial question exists. See id. “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.” Id.
In the present case, Dugan’s appellate brief contains the requisite Rule
2119(f) concise statement, and, as such, is in technical compliance with the
requirements to challenge the discretionary aspects of a sentence. Dugan
argues in his Rule 2119(f) statement that a substantial question exists that
his sentence was excessive by referring to the guideline ranges. But the
sentencing guidelines do not apply to sentences imposed after the
revocation of probation. See, e.g., Commonwealth v. Williams, 69 A.3d
735, 741 (Pa. Super. 2013). Stripped of the analysis of the guideline
ranges, Dugan’s excessive sentence argument is little more than a bald
assertion that fails to raise a substantial question. See, e.g.,
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 164 (Pa. Super. 2007).
Dugan also maintains that the trial court failed to consider certain factors set
forth in 42 PA.CONS.STAT.ANN. § 9721(b). This sets forth a substantial
question for our review. See Commonwealth v. Dodge, 77 A.3d 1263,
1272 n.8 (Pa. Super. 2013). Accordingly, we proceed to examine the merits
of this claim. The record reveals that the trial court carefully considered the
factors set forth in section 9721(b).
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The imposition of sentence is vested in the discretion of the trial court,
and should not be disturbed on appeal for a mere error of judgment but only
for an abuse of discretion showing that sentence was manifestly
unreasonable. See Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d
957, 961 (2007). In accordance with section 9721(b), “the court shall follow
the general principle that the sentence imposed should call for confinement
that is consistent with the protection of the public, the gravity of the offense
as it relates to the impact on the life of the victim and on the community,
and the rehabilitative needs of the defendant.” 42 PA.CONS.STAT.ANN. §
9721(b).
Importantly, however, in Walls our Supreme Court made clear that
this Court’s statutory authority is limited to determining whether the trial
court failed to consider the factors set forth in section 9721(b). See id. at
567-568, 926 A.2d at 963. If the trial court considered each of the section
9721(b) factors, this Court must show a high degree of deference to the trial
court’s sentencing determinations based upon those considerations, largely
because the trial court is “in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the individual
circumstances before it.” Id. at 565, 926 A.2d at 961.
At the sentencing hearing following Dugan’s third revocation of
probation, the trial court considered the gravity of the offense as well as
Dugan’s rehabilitative needs when imposing sentence.
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I’ve read the original presentence report, I’ve read the
revocation summary for today, I’ve read the revocation
summary for October 26th of 2011, I’ve read the revocation
summary from February 24th of 2009. I’m the one who imposed
the sentence originally in this case, and at that time you were
relatively young and you had no prior criminal record.
But as pointed out by the officer preparing the presentence
report, it indicated that Mr. Dugan has certainly made a
remarkable entrance into the criminal justice system. The
burglary of the Subway shop involved the defendant kicking in
the side door of the shop, and once inside stealing money from
that business. The burglary at the greenhouse involved the
defendant taking advantage of his former employer and stealing
cash in a safe from that business. And finally, the defendant
provided alcohol and marijuana to a 15-year-old girl and
engaged in sexual relations with her over an extended period of
time. These activities do not speak well of the defendant or his
character.
Now, I understand - - and this is back in 2005 when the
sentence was, and I kept it all at the county level at that point
and you were given any and all treatment you needed, even if it
wasn’t Court ordered. And that was in 2005. I look at the
revocation summary from the first time you come back in 2009,
and I think the Commonwealth said it best; you can put all these
next to each other, the revocation summaries, and they are all
the same. Clearly in your mind you don’t think you’ve done
anything wrong or criminal and you need to abide by any of the
terms of your supervision or you need treatment for anything,
because you thumb your nose consistently at it. And the concern
I have is that your lack of progress tells me that you continue to
pose a risk to this community.
N.T., Probation Revocation, 6/26/13, at 25-27.
It is apparent that the trial court carefully considered the section
9721(b) factors, particularly the gravity of the offense and Dugan’s
rehabilitative needs when imposing its sentence—the factors Dugan claims
were not considered.
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After examining the issue contained in the Anders brief and after
undertaking our own independent review of the record, we concur with
counsel’s assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw filed on December
23, 2013, is granted. Petition to withdraw filed on July 14, 2014, is
dismissed as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2014
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