Com. v. Peters, M. ( 2014 )

J-S56034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARISA PETERS,
Appellant No. 599 MDA 2014
Appeal from the Judgment of Sentence March 19, 2014
in the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0002534-2013
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 26, 2014
Appellant, Marisa Peters, appeals from the judgment of sentence
imposed following her entry of a guilty plea to theft by unlawful taking.1
Counsel for Appellant has petitioned to withdraw on the ground that
to withdraw and affirm the judgment of sentence.
On November 27, 2013, Appellant pleaded guilty to the above-stated
offense. In exchange for this plea, the Commonwealth nolle prossed the
remaining charges brought against Appellant, specifically, access device
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3921(a).
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fraud, receiving stolen property, and theft by deception.2 The charges stem
Pisano, by an ATM
her drug addiction. At the time Appellant made this withdrawal, she lived in
trial court, after considering a pre-sentence investigation (PSI) report and
hearing from Ms. Pisano and Appellant, sentenced Appellant to a term of not
less than three nor more than eleven and one-
sentence in the aggravated range.3 On March 24, 2014, the trial court
denied Ap See Order,
3/24/14); see also Pa.R.Crim.P. 720(A)(1). This timely appeal followed.4
On July 2, 2014, counsel for Appellant filed an Anders5 brief and a
petition to withdraw as counsel stating her belief that this appeal is
____________________________________________
2
18 Pa.C.S.A. §§ 4106(a)(1), 3925(a), and 3922(a)(1), respectively.
3
supervision in Lackawanna County for another theft charge. (See N.T.
Sentencing, 3/19/14, at 3). In that cas
probation and sentenced her to a term of not less than six nor more than
imposed in the instant case. (See id. at 7).
4
Pursuant to the trial
statement of errors on April 23, 2014. The court filed a Rule 1925(a)
opinion on June 10, 2014. See Pa.R.A.P. 1925.
5
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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meritless. (See Petition to Withdraw as Counsel, 7/02/14, at unnumbered
enclosing a copy of the Anders brief, informing her of the petition to
withdraw and advising her of her right to retain new counsel or proceed with
the appeal pro se. (See Letter from Donna M. De Vita, Esq. to Appellant,
7/02/14, at unnumbered page 1). Appellant has not responded.
[I]n the Anders
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
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.
Santiago, supra at 361.
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
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 to either comply with Anders or file an
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
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Commonwealth , 957 A.2d 1265, 1266 (Pa. Super. 2008)
(citations omitted).
In the instant case, counsel has complied with the Anders and
Santiago requirements. She has submitted a brief that summarizes the
case, (see Anders Brief, at 5-6); referred to anything that might arguably
support the appeal, (see id. at 7-12); and set forth her reasoning and
conclusion that the appeal is frivolous, (see id. at 12). See Santiago,
supra at 361. Counsel has filed a petition to withdraw, sent Appellant a
letter advising that she concluded that there are no non-frivolous issues,
provided her with a copy of the Anders brief, and notified her of her right to
retain new counsel or proceed pro se
satisfy the requirements of Anders and Santiago, we will undertake our
own review of the appeal to determine if it is wholly frivolous. See
, supra at 1266.
The Anders
Anders brief, at 4).
Appellant contends that the aggravated-range sentence is excessive because
her offense was non-violent and involved a small amount of money. (See
id. at 9, 11). Appellant asserts that, in imposing the sentence, the court did
not seriously consider her addiction issues or analyze whether she is a
danger to the community at large. (See id. at 11).
However,
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Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.
2011) (citation omitted).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved h[er] issue; (3) whether
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence [See Pa.R.A.P. 2119(f)]; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code. . . .
[I]f the appeal satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),
appeal denied, 81 A.3d 75 (Pa. 2013) (citations and quotation marks
omitted).
In the instant case, Appellant has complied with the first three
requirements because she filed a timely notice of appeal, preserved her
claim in a timely post-sentence motion, and the Anders brief contains a
Rule 2119(f) statement. (See Anders Brief, at 8-9). With respect to the
fourth requirement:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exits only when the appellant advances a
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).
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imposing an aggravated range sentence without consideration of mitigating
Commonwealth v. Felmlee,
828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (citation omitted); see
also Commonwealth v. Fullin, 892 A.2d 843, 849 (Pa. Super. 2006)
(concluding that appellant raised substantial question where he argued that,
in imposing aggravated-range sentence, court failed to consider his remorse
and efforts at rehabilitation).
to the discretionary aspects of her sentence on the merits.
Our standard of review is as follows:
Sentencing 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. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the
record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-
will.
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal
denied, 85 A.3d 481 (Pa. 2014) (citation omitted).
and can, on the appropriate record and for the appropriate reasons, consider
Commonwealth v. Hardy, 939 A.2d 974, 980 (Pa. Super. 2007) (citation
Absent a manifest abuse of discretion, such
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sent Commonwealth v. Stewart, 867 A.2d
589, 593 (Pa. Super. 2005) (citation omitted).
Here, at the sentencing hearing, the trial court heard from Ms. Pisano,
boyfriend to stay at her home for approximately three months. (See N.T.
Sentencing, 3/19/14, at 2). Ms. Pisano explained that she gave Appellant
and her family food, money, and a place to stay, and that she was
See id. at 2-3). Appellant expressed
remorse for her offense, advised the court that she took full responsibility for
her actions, and acknowledged that she needed help to overcome her drug
addiction. (See id. at 3, 5-6). Prior to imposing the sentence, the court
indicated that it had considered the PSI report, and it noted that Appellant
had been using drugs since she was fourteen years old. (See id. at 3, 5).
The court explained its rationale for the sentence to Appellant as follows:
supervisory sentences with you that did not involve incarceration
an
at a case where you would steal from your own grandmother,
that is really stooping pretty low. And your grandmother took
not only you in but the rest of your family.
* * *
The sentence imposed on the theft by unlawful taking
charge is in the aggravated range and that is because of the fact
that the victim was, in fact, a close family member, and that
charge was committed while you were on supervision with this
[c]ourt.
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. . . In fashioning this sentence, [the court] considered not only
the nature and gravity of the offense but your own rehabilitative
needs, your failures to adopt and adapt to the previous
supervisory sentences that were imposed and the entire
contents of this presentence file.
(Id. at 6, 8-9).
Thus, the record reflects that the trial court was fully informed of
consideration Ms. -court sentencing statements,
and that it comprehensively set forth its reasons for the aggravated-range
sentence. Further, where, as here, the court reviewed a PSI
assume the sentencing court was aware of relevant information regarding
Commonwealth v. Rhoades 8 A.3d 912,
919 (Pa. Super. 2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied,
132 S. Ct. 1746 (2012) (citation and internal quotation marks omitted).
Upon review, we conclude that the trial court did not abuse its
see Clarke, supra at 1287, and
that the issue raised in the Anders brief is frivolous. Furthermore, after
independent review, we determine that there are no other non-frivolous
, supra at
1266.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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