Com. v. Porter, D. ( 2019 )

J-S14027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD PORTER :
:
Appellant : No. 274 EDA 2018
Appeal from the Judgment of Sentence August 10, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004047-2011
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 10, 2019
Appellant Donald Porter appeals from the judgment of sentence entered
after the trial court resentenced him for his conviction of robbery—threat of
immediate serious injury.1 Appellant’s counsel has filed a petition to withdraw
and an Anders/Santiago2 brief. We affirm and grant the petition to
withdraw.
The facts underlying Appellant’s convictions are well known to the
parties and need not be restated in detail in this appeal. Briefly, on July 9,
2010, at approximately 3:00 a.m., Appellant approached the victim as the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3701(a)(1)(ii).
2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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victim was walking through a playground. Appellant pointed a gun at the
victim and ordered him to “give it up.” When the victim asked what he was
supposed to give up, Appellant demanded money. The victim attempted to
grab the gun from Appellant’s hands. The gun fired during the struggle and
the victim was struck in his left thumb, third, fourth, and fifth fingers. The
victim underwent surgery to repair the ligaments in his hand, but his hand
lost some of its functions.
Appellant was charged with robbery, as well as possession of a firearm
prohibited, firearms not to be carried without a license, carrying firearms in
public in Philadelphia, and possessing an instrument of crime.3 A jury found
Appellant guilty of the foregoing offenses. On June 14, 2013, the trial court
sentenced Appellant to an aggregate term of twelve to twenty-four years’
imprisonment. Specifically, the court sentenced Appellant to a mandatory
minimum sentence of five to ten years’ incarceration for robbery based on 42
Pa.C.S. § 9712 (sentences for offenses committed with firearms). The court
also imposed consecutive sentences of four to eight years’ incarceration for
persons not to possess firearms and three to six years’ incarceration for
carrying a firearm without a license. The trial court imposed no further penalty
for carrying a firearm in Philadelphia or possessing an instrument of crime.
Appellant filed a direct appeal challenging the discretionary aspects of
his sentence, arguing, in part, that the aggregate sentence was manifestly
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3 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108, and 907(a), respectively.
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excessive. This Court affirmed Appellant’s judgment of sentence on August
19, 2014. See Commonwealth v. Porter, 2324 EDA 2013 (Pa. Super. filed
Aug. 19, 2014) (unpublished mem.). The Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on January 7, 2015. See
Commonwealth v. Porter, 106 A.3d 725 (Pa. 2015).
Appellant filed a Post Conviction Relief Act4 (PCRA) petition on December
17, 2015, asserting that the mandatory minimum sentence for his robbery
conviction was illegal under Alleyne v. United States, 570 U.S. 99 (2013)
and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). The
PCRA court appointed counsel, who filed an amended PCRA petition on
November 15, 2016. The Commonwealth agreed that Appellant should be
resentenced, and the trial court resentenced Appellant for robbery on August
10, 2017.
At the resentencing hearing, the trial court again imposed a sentence of
five to ten years’ imprisonment for robbery. The court reasoned:
The only issue before the [c]ourt was resentencing on the robbery
charge, because as you pointed out very intelligently, that that
sentence had to be vacated and had to be resentenced because of
the changes with the [Alleyne] case. So we’re here really on that.
So in imposing a sentence, the [c]ourt takes into account -- aside
from everything everyone said, the [c]ourt takes into account
everything that was said at the time of the trial, the time of the
sentencing in the past[, which included a presentence
investigation (PSI)]. The [c]ourt takes into account the need to
protect the community, the gravity of the offense’s impacts upon
the victim, and your rehabilitation needs. And the [c]ourt
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4 42 Pa.C.S. §§ 9541-9546.
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appreciates everything that has been said about you being a
changed person, etcetera. And that it’s helpful to always move in
the direction of being a model citizen in society. And it looks like
you’re working in doing that.
Obviously, with the opportunity to resentence on robbery, the
[c]ourt has a wide range. The [c]ourt could go below the sentence
or the mandatory ranges, as [Appellant’s counsel] really would--
and your family and yourself would like the [c]ourt to do.
Otherwise, you wouldn’t be here. The [c]ourt can give the same
sentence, because it’s right within the standard range or the
[c]ourt can apply the deadly weapon possessed guideline which is
even higher than the sentence the [c]ourt had imposed. The
[c]ourt has free range to do any of those three things. [5]
So I know the Commonwealth has not asked for the [c]ourt to
impose the deadly weapon possessed [enhancement]. They
haven’t asked directly, but I think a fair reading of the argument
of [the Commonwealth] is they’ve--they’ve really asked implicitly.
So and the [c]ourt appreciates that, but balancing that implicit
request is the fact--is all the work that you’ve done . . . . So when
I consider everything, there’s no need to make any changes at all
with the sentence.
So in considering all of the factors the [c]ourt has mentioned, the
[c]ourt will impose a sentence in the standard range of five to 10
years on the robbery. That will run consecutive to the four to eight
years on the 6105 charge, the three to six years on the 6106
charge. So the total sentence will remain as it was before of 12 to
24 years.
Sentencing Hr’g, 8/10/17, at 28-30.
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5 At the resentencing hearing, Appellant’s counsel represented that the
standard range minimum sentence applicable to the robbery charge was forty-
eight to sixty months, plus or minus twelve months. N.T., 8/10/17, at 7; see
also Sentencing Guidelines, 6th ed. revised (eff. Dec. 5, 2008) (Guidelines).
The deadly weapon possessed enhancement called for a minimum sentence
between fifty-seven and sixty-nine months. See N.T., 8/10/17, at 8. The
Commonwealth noted that the deadly weapon used enhancement could also
apply. Id.; see also Guidelines (indicating that the deadly weapon used
enhancement called of a minimum sentence between sixty-six and seventy-
eight months).
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Appellant filed a post-sentence motion asserting that the sentence was
excessive.6 See Post-Sentence Mot., 8/10/17, at 3. Appellant’s post-
sentence motion was denied by operation of law on January 16, 2018.
Appellant’s counsel filed the instant direct appeal on January 19, 2018.
The trial court entered an order requiring Appellant to file a Pa.R.A.P. 1925(b)
statement within twenty-one days. Counsel filed a statement pursuant to
Pa.R.A.P. 1925(c)(4) indicating his intent to file an Anders brief in lieu of a
statement of matters complained of on appeal. The trial court did not file an
opinion pursuant to Pa.R.A.P. 1925(a).7
On appeal, Appellant’s counsel has filed a petition to withdraw and an
Anders/Santiago brief. We note that we may not review the merits of the
underlying issues without first examining counsel’s petition to withdraw.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). Counsel must comply with the technical requirements for petitioning
to withdraw by (1) filing a petition for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has determined
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6 Specifically, in his post-sentence motion, Appellant suggested that the
sentence was excessive “in recognition of his age, mental health disabilities,
rehabilitation to date, completion of programs offered to him at his facility,
maturation since his arrest, continued familial support, and nearly
unblemished record over the past seven and one-half years in correctional
facilities.” See Post-Sentence Mot., 8/10/17, at 3.
7Where counsel files a Rule 1925(c)(4) statement of intent to file an Anders
brief, “a trial court opinion is not necessary.” Commonwealth v. McBride,
957 A.2d 752, 758 (Pa. Super. 2008).
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that the appeal would be frivolous; (2) providing a copy of the brief to
Appellant; and (3) advising Appellant that he has the right to retain private
counsel, proceed pro se, or raise additional arguments that Appellant
considers worthy of the court’s attention. See Commonwealth v. Yorgey,
188 A.3d 1190, 1195-96 (Pa. Super. 2018) (en banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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 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, 978 A.2d at 361. Only after determining that counsel has satisfied
these technical requirements, may this Court “conduct an independent review
of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (citations and footnote omitted); accord Yorgey, 188 A.3d
at 1197.
Counsel has complied with the procedures for seeking withdrawal by
filing a petition to withdraw, sending Appellant a letter explaining his rights,
and supplying Appellant with a copy of the Anders/Santiago brief. See id.
at 1195-96. Moreover, counsel’s Anders/Santiago brief complies with the
requirements of Santiago. Counsel includes a summary of the relevant
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factual and procedural history, refers to the portions of the record that could
arguably support Appellant’s claim, and sets forth the conclusion that the
appeal is frivolous. Counsel explains his reasoning and supports his rationale
with citations to the record and pertinent legal authority. Thus, counsel has
complied with the technical requirements for withdrawal, see Santiago, 978
A.2d at 361, and we will independently review the record to determine if any
non-frivolous issues are raised. See Flowers, 113 A.3d at 1250.
Counsel identifies one issue in the Anders/Santiago brief, which
focuses on the discretionary aspects of Appellant’s sentence. Specifically,
counsel indicates that Appellant intends to argue that the court’s decision to
resentence him to the same sentence for robbery constituted an excessive
sentence. Anders/Santiago Brief at 35. Counsel notes that a prior panel
rejected similar arguments that the aggregate sentence was excessive. Id.
at 33. Appellant did not file a pro se response or a counseled response through
new counsel.8
An appeal challenging the discretionary aspects of sentencing is not an
appeal as of right. Commonwealth v. Bynum-Hamilton, 135 A.3d 179,
184 (Pa. Super. 2016). Appellant must meet the requirements that the appeal
was timely, the issues were preserved, and that his brief contains a concise
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8 This Court previously granted Appellant’s requests for extensions of time to
respond to the Ander/Santiago brief. In the most recent order, we directed
that Appellant file a response by April 10, 2019, and that no further extensions
would be granted absent a showing of extraordinary circumstances. See
Order, 3/11/19.
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statement of the reasons relied upon for allowance of appeal.
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006). An
appeal challenging the discretionary aspects of a sentence must also raise a
substantial question that the sentence imposed was not appropriate under the
Sentencing Code. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (citation omitted).
Instantly, Appellant has preserved his intended challenge to the
excessiveness of the sentence by filing a timely post-sentence motion and
filing a timely appeal. Additionally, the Anders/Santiago brief includes a
concise statement of the reasons relied upon for allowance of appeal. See
Pa.R.A.P. 2119(f). Therefore, we proceed to consider whether this appeal
raises a substantial question.
A substantial question “exists only when an appellant advances a
colorable argument that the sentencing judge’s actions were either
inconsistent with a specific provision of the Sentencing Code or contrary to
the fundamental norms underlying the sentencing process.” Bynum-
Hamilton, 135 A.3d at 184 (citation omitted). “Generally, a bald
excessiveness claim does not raise a substantial question.” Commonwealth
v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (citation omitted).
Following our review, we agree with counsel’s assessment that
Appellant’s intended issue is frivolous. A boilerplate claim that the trial court
imposed an excessive sentence does not raise a substantial question. See id.
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Even assuming the existence of a substantial question, this Court, as
noted by counsel, previously rejected Appellant’s prior challenge to the
identical aggregate sentence. Furthermore, our review of the record confirms
that the trial court expressly considered Appellant’s mitigating circumstances
and rehabilitative needs when resentencing Appellant to five to ten years’
imprisonment for robbery. See N.T. at 28-30. We see no further basis to
conclude that the sentence was clearly unreasonable.9 Therefore, Appellant’s
intended claim that the trial court abused its discretion when re-imposing a
five to ten year sentence of incarceration for robbery lacks support in the
record.
Accordingly, we agree with counsel’s assessment that the issue
identified for appeal is frivolous. Having independently reviewed the record,
we discern no other non-frivolous issues that have been preserved for review.
See Flowers, 113 A.3d at 1250.
Judgment of sentence affirmed. Petition to withdraw granted.
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9 Where a sentence is imposed within the guidelines, we may only reverse the
trial court if we find that the circumstances of the case rendered the
application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).
Our review of the reasonableness is based upon the factors contained in 42
Pa.C.S. § 9781(d), which include, among other things, “the nature and
circumstances of the offense and the history and characteristics of the
defendant.” 42 Pa.C.S. § 9781(d)(1). Reasonableness is also based upon the
trial court’s consideration of the general sentencing standards contained in 42
Pa.C.S. § 9721(b), including that the sentence imposed is consistent with the
protection of the public, the gravity of the offense, and the rehabilitative needs
of the defendant. See Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.
Super. 2013).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/19
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