Com. v. Page, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMAL LOUIS PAGE,
Appellant No. 1501 WDA 2015
Appeal from the Judgment of Sentence September 2, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000116-2015
BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 03, 2016
Appellant, Jamal Louis Page, appeals from the judgment of sentence
entered on September 2, 2015, in the Erie County Court of Common Pleas.
Appellate counsel has filed a petition seeking to withdraw her representation
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a
withdrawal from representation on direct appeal. After careful review, we
grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
Following a one-day jury trial, Appellant was convicted of one count of
possession of a firearm by a prohibited person. Appellant was sentenced on
September 2, 2015, to a period of thirty-six to seventy-two months of
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incarceration. Order, 9/2/15; N.T., 9/2/15, at 11-12. Appellant was
credited six days of incarceration. N.T., 9/2/15, at 12.
On September 9, 2015, Appellant filed a post-sentence motion for
reconsideration of his sentence. By order entered September 16, 2015, the
trial court denied Appellant’s post-sentence motion. Appellant filed a timely
notice of appeal on September 29, 2015. Also on that date, counsel filed a
statement of intent to file an Anders brief and withdraw as counsel pursuant
to Pa.R.A.P. 1925(c)(4). In response to counsel’s statement, the trial court
issued an opinion stating that, based on counsel’s statement of intent to file
an Anders brief, the court had no issues to address as none had been
raised. Trial Court Opinion, 10/1/15.
On November 2, 2015, Attorney Nicole Sloane, who had perfected
Appellant’s appeal in this matter, filed a petition to withdraw as counsel
because Assistant Public Defender Emily Mosco Merski had entered her
appearance on Appellant’s behalf. On November 6, 2015, this Court issued
an order granting Attorney Sloane’s request to withdraw as counsel, noting
that Attorney Merski had entered her appearance on Appellant’s behalf.
Order, 1501 WDA 2015, 11/6/15. Attorney Merski subsequently filed her
Anders brief and petition to withdraw on February 2, 2016.
Before we address the issue that Appellant’s counsel raised on appeal,
we must resolve appellate counsel’s request to withdraw. Commonwealth
v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are
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procedural and briefing requirements imposed upon an attorney who seeks
to withdraw on direct appeal. The procedural mandates are that counsel
must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within her petition
to withdraw, counsel averred that she conducted a conscientious
examination of the record, including all available transcripts, pleadings, and
other materials. Following that review, counsel concluded that the present
appeal is wholly frivolous. Counsel sent Appellant a copy of the Anders
brief and the petition to withdraw, as well as a letter advising Appellant that
he could represent himself or that he could retain private counsel to
represent him. A copy of that letter was attached to counsel’s petition to
withdraw.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in 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 believes arguably
supports the appeal; (3) set forth counsel’s conclusion that the
appeal is frivolous; and (4) state counsel’s reasons for
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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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
We are satisfied that counsel has met the requirements set forth in
Santiago. Counsel’s brief sets forth the factual and procedural history of
this case, cites to the record, and refers to an issue that counsel arguably
believes supports the appeal. Anders Brief at 4-8. Further, the brief
includes counsel’s conclusion that the appeal is frivolous, and it contains
pertinent case authority and counsel’s reasons for concluding that the appeal
is frivolous. Id. at 7-8. Accordingly, we address the following issue raised
in the Anders brief:
Whether the appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Sentencing Code?
Anders Brief at 3.
In the argument portion of the Anders brief, counsel asserts that the
trial court abused its discretion in sentencing Appellant to a lengthy term of
incarceration given the mitigating factors of this case. Anders Brief at 6.
Specifically, counsel claims that during Appellant’s sentencing hearing, a
letter from Dr. Hogue of Northshore Neurosciences was presented. Id. at 6.
The letter contained the professional opinion of Dr. Hogue who offered a
medical explanation for Appellant’s behavior. Id. at 6. Furthermore,
Appellant apologized to the court, to his family and the victims, and took
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responsibility for his actions. Id. at 7. Thus, counsel is purporting to
present a challenge to the discretionary aspects of Appellant’s sentence.
We note that “[t]he right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107
A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155,
163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[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.
[708]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)). The determination of whether there is a substantial question
is made on a case-by-case basis, and this Court will grant the appeal only
when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
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Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912–
913 (Pa. Super. 2000).
Herein, the first three requirements of the four-part test are met:
Appellant filed a timely appeal, raised the challenges in a post-sentence
motion, and included in his Anders brief the necessary separate concise
statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
In his Pa.R.A.P. 2119(f) statement, Appellant asserts that he was
sentenced to serve thirty-six to seventy-two months of incarceration.
Anders Brief at 5. Appellant contends that with an offense gravity score of
ten and a prior record score of four, the standard minimum range for
possession of firearm by a prohibited person is thirty-six to forty-eight
months of incarceration. Id. at 4. Appellant acknowledges that his
sentence is within the standard sentencing range. Id. at 5. Appellant
argues, however that the sentence violates the sentencing code because,
despite the court sentencing him within the guidelines, the case involves
circumstances where application of the guidelines was unreasonable. Id. at
5. Appellant avers that the sentencing court is required to consider factors
outlined in 42 Pa.C.S. § 9721(b) and failed to do so here. Id. at 5.
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“[T]his Court has held that an excessive sentence claim-in conjunction
with an assertion that the court failed to consider mitigating factors-raises a
substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014) (citation omitted). Because Appellant has presented a
substantial question, we proceed with our analysis.
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. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.
Super. 2006). In this context, an abuse of discretion is not shown merely by
an error in judgment. Id. 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. Id.Furthermore, the “[s]entencing court has broad discretion in choosing
the range of permissible confinements which best suits a particular
defendant and the circumstances surrounding his crime.” Commonwealth
v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004) (quoting Commonwealth
v. Moore, 617 A.2d 8, 12 (1992)). Discretion is limited, however, by 42
Pa.C.S.§ 9721(b), which provides that a sentencing court must formulate a
sentence individualized to that particular case and that particular defendant.
Id.
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Section 9721(b) provides: “[t]he 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 ...” Boyer, 856 A.2d at 153 (citing 42
Pa.C.S.A. § 9721(b)). Furthermore,
[i]n imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigative 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 mitigating statutory factors.
Boyer, 856 A.2d at 154. Additionally, “where a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.” Moury, 992 A.2d at 171.
Instantly, Appellant’s sentence falls within the strictures of our
sentencing guidelines. The conviction carried an offense gravity score of
ten, and Appellant had a prior record score of four. As such, the standard
guideline sentence for that offense was forty-eight to sixty months of
incarceration, plus or minus twelve months for aggravating or mitigating
circumstances. 204 Pa.Code 303.16(a). Accordingly, Appellant’s sentence
of thirty-six to seventy-two months was in the mitigated range of the
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sentencing guidelines. He, therefore, must demonstrate that the application
of those guidelines would be clearly unreasonable. 42 Pa.C.S. § 9781(c)(2).
As noted, Appellant submits that the sentencing court abused its
discretion in sentencing him to such a lengthy period of incarceration given
the mitigating factors of his case. To this end, Appellant argues that the
sentencing court disregarded evidence regarding a medical explanation for
Appellant’s behavior, the fact that Appellant apologized to the court, to his
family and victims, and took responsibility for his actions. Appellant’s Brief
at 6-7.
The sentencing court’s statements prior to imposing sentence belie
Appellant’s allegation that the court failed to consider this information.
Despite Appellant’s assertions to the contrary, the sentencing court was
aware of his background. The court heard testimony from Appellant’s father
and from Appellant himself. N.T., 9/2/15, at 7-9. Additionally, the court
had the benefit of a presentence investigation report and considered all of
the mitigating information contained therein. Id. at 10. In sentencing
Appellant, the trial court presented the following explanation:
All right. The [c]ourt has considered the Pennsylvania
Sentencing Code, the presentence report, and the Pennsylvania
guidelines on sentencing. The [c]ourt has also considered the
statements of counsel, [Appellant], and the attorney for the
Commonwealth.
The [c]ourt has considered [Appellant’s] age, background,
character, and rehabilitative needs, the nature, circumstances,
and seriousness of the offense and the protection of the
community.
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***
The [c]ourt will order the following sentence, and I’ll give
[Appellant] every consideration by giving a sentence from the
low end of the mitigated range of the sentencing guidelines. He
is ordered to pay the costs of prosecution. No fine will be
imposed. He will be ordered incarcerated, a minimum period of
which will be 36 months, a maximum of which will be 72
months. [Appellant] will receive credit for time served in the
amount of six days.
N.T., 9/2/15, at 10-12.
The court imposed a low-end mitigated range sentence as a result of
Appellant’s conviction. The gist of Appellant’s argument is not that the court
failed to consider the pertinent sentencing factors, but rather that the court
weighed those factors in a manner inconsistent with his wishes. Accordingly,
we conclude that the record supports the sentencing court’s reasoning and
that its decision conforms to the applicable law. The sentence imposed was
at the low end of the mitigated range of the sentencing guidelines, and the
record reflects that the court carefully considered all of the evidence
presented at the sentencing hearing. As such, we discern no abuse of
discretion, nor can we conclude that the sentencing court arrived at a
manifestly unreasonable decision. Boyer, 856 A.2d at 153.
Finally, we have independently reviewed the record in order to
determine whether there are any non-frivolous issues present in this case.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having
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concluded that there are no meritorious issues, we grant Appellant’s counsel
permission to withdraw and affirm the judgment of sentence.
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2016
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