Com. v. Allabaugh, S. ( 2014 )

J-S56035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN EARL ALLABAUGH,
Appellant No. 24 MDA 2014
Appeal from the Judgment of Sentence November 25, 2013
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0000536-2013
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 26, 2014
Appellant, Steven Earl Allabaugh, appeals from the judgment of
sentence entered following his guilty plea to statutory sexual assault and
withdraw under Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the
appeal is wholly frivolous. We affirm the judgment of sentence and grant
On July 2, 2013, Appellant entered an open guilty plea to one count
each of unlawful contact with a minor, incest, and statutory sexual assault. 1
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*
Retired Senior Judge assigned to the Superior Court.
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(See Guilty Plea, 7/02/12, at unnumbered page 1). The offenses involved
his fourteen-year-old half-sister. Following receipt and review of a pre-
sentence investigation report (PSI), on November 25, 2013, the sentencing
court sentenced Appellant to a term of incarceration of not less than sixty-
six months nor more than 132 months on the first count, to be followed by
an aggregate consecutive term of probation of eight years on the remaining
counts with credit for time served. (See N.T. Sentencing, 11/25/13, at 10-
11). Further, the parties stipulated that Appellant met the criteria for a
sexually violent predator. (See id. at 2-3).
On December 4, 2013, Appellant filed a motion to modify sentence,
which the trial court denied on that same date. The instant, timely appeal
followed. On December 31, 2013, the trial court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Following the withdrawal of trial counsel and the appointment of
new counsel, appellate counsel filed a statement of errors complained of on
appeal on March 20, 2014. See Pa.R.A.P. 1925(b). On April 17, 2014, the
trial court filed an opinion. See Pa.R.A.P. 1925(a). On July 8, 2014, counsel
filed a petition to withdraw and an Anders brief.
On appeal, counsel in the Anders brief raises the following question
for our review:
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(Footnote Continued)
1
18 Pa. C.S.A. §§ 6318(a)(1), 4302(b)(2), and 3122(a)(1), respectively.
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Whether the [t]rial [c]ourt abused its discretion in
sentencing the Appellant[?]
(Anders Brief, at 1).
-appointed counsel has petitioned for permission to
withdraw and has submitted an Anders brief, which is procedurally proper
for counsel seeking to withdraw on direct appeal. See Anders, supra.Court-appointed counsel who seeks to withdraw from representing an
appellant on direct appeal on the basis that the appeal is frivolous 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
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, supra at 361. When we receive an Anders brief, we first rule on
the petition to withdraw and then review the merits of the underlying issues.
See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).
Anders
record to
Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).
In the instant matter, counsel has substantially complied with all the
requirements of Anders and Santiago. Specifically, he has petitioned this
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unnumbered page 1). In addition, after his review of the record, counsel
filed a brief with this Court that provides a summary of the procedural
history and facts with citations to the record, refers to any facts or legal
theories that arguably support the appeal, and explains why he believes the
appeal is frivolous. (See Anders Brief, at 3-7). Lastly, he has attached, as
an exhibit to his petition to withdraw, a copy of the letter sent to Appellant
giving notice of his rights, and including a copy of the Anders brief and the
petition. See Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.
2005). Appellant did not respond. Because counsel has substantially
complied with the dictates of Anders, Santiago, and Millisock, we will
examine the issue set forth in the Anders brief that counsel believes has
arguable merit. See Garang, supra at 240-41.
On appeal, the Anders brief challenges the discretionary aspects of his
sentence.2 The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
challenges the discretionary aspects of the sentence imposed, he must
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2
We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. (See Motion to Modify and Reduce Sentence, 12/04/13); see
also McAfee, infra at 275.
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Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
determine whether a substantial question exists. See Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000), appeal denied, 759 A.2d
920 (Pa. 2000) reasons for which the
appeal is sought, in contrast to the facts underlying the appeal, which are
Id. (emphases in
original).
The Anders brief in the present case does not contain a Rule 2119(f)
statement. Rule 2119(f) statement does not
automatically waive
from reaching the merits of the claim when the Commonwealth lodges an
Commonwealth v. Roser,
914 A.2d 447, 457 (Pa. Super. 2006), appeal denied, 927 A.2d 624 (Pa.
2007) (citation omitted). Because the Commonwealth has not objected to
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(See
Appellant claims that his sentence was unreasonable and excessive.
(See Anders Brief, at 6). However, Appellant concedes that his sentence
was in the standard range of the Sentencing Guidelines. (See id.).
A claim that a sentence was excessive and unreasonable can raise a
substantial question. See Commonwealth v. Mouzon, 812 A.2d 617, 627
(Pa. 2002). However,
[w]hen imposing a sentence, a court is required to
consider the particular circumstances of the offense and the
character of the defendant. . . . Where the sentencing court had
assume the sentencing court was aware of relevant information
considerations along with mitigating statutory factors. Further,
where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the
Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (some
internal quotation marks and citations omitted). Here, the sentencing court
stated that it had reviewed the PSI. (See N.T. Sentencing, 11/25/13, at
10). The sentencing court then sentenced Appellant in the standard range;
thus, under our caselaw, the sentence is not excessive or unreasonable.
See Moury, supra; see also Commonwealth v. Cruz-Centeno, 668 A.2d
536, 545-46 (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996)
(stating combination of PSI and standard range sentence, absent more,
cannot be considered excessive or unreasonable). Therefore, Appellant has
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not raised a substantial question that his sentence was excessive and
unreasonable, and we decline to address this issue.
conducted an independent review of the record as required by Anders and
Santiago and finds that no non-frivolous issues exist.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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