Com. v. Ott, J. ( 2019 )

J -S41002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JERRY DOUGLAS OTT
Appellant : No. 594 MDA 2019
Appeal from the Judgment of Sentence Entered February 27, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000991-2018
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2019
Jerry Douglas Ott appeals from the judgment of sentence, entered in
the Court of Common Pleas of the 39th Judicial District, Franklin County
Branch, following his convictions by a jury for two counts of driving under the
influence ("DUI").1 Counsel has filed a brief pursuant to Anders and
Santiago,2 and a petition to withdraw. For the reasons that follow, we grant
counsel's petition to withdraw and affirm Ott's judgment of sentence.
On December 21, 2017, Ott was pulled over for having an expired
registration while driving on the 1700 block of Sollenberger Road in Hamilton
1 75 Pa.C.S.A. §§ 3802(d)(1) and (2) (controlled substance and impaired
ability, respectively).
2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
Retired Senior Judge assigned to the Superior Court.
J -S41002-19
Township, Franklin County. Field sobriety tests were performed at the scene
of the traffic stop, followed by a blood draw that revealed the presence of
morphine and codeine in Ott's system.3 Ott was subsequently charged with
two counts of DUI and proceeded to a trial before a jury which, on January 3,
2019, convicted him of both counts. On February 27, 2019, the trial court
sentenced Ott to 12 to 60 months' imprisonment. Post -sentence motions were
denied on March 14, 2019. Ott filed a timely appeal on April 12, 2019,
followed by a court -ordered concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Prior to reviewing Ott's claims, we must determine if counsel has
complied with the procedural requirements for withdrawal. An attorney
seeking to withdraw on appeal must comply with certain procedural and
briefing requirements. Specifically, 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 [appellant]; and 3) advise the [appellant] that
he or she has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the court's
attention.
3 The particular concentrations of morphine and codeine in Ott's blood
indicated that he had ingested heroin. See N.T. Trial, 1/3/19, at 84.
-2
J -S41002-19
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago stated
that an Anders brief 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 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.
Counsel also must provide the appellant with a copy of the Anders brief,
together with a letter that advises the appellant of his or her right to "(1)
retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)
raise any points that the appellant deems worthy of the [C]ourt's attention in
addition to the points raised by counsel in the Anders brief."
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation
omitted). Substantial compliance with these requirements is sufficient.
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).
Here, counsel has filed a petition to withdraw as counsel and an Anders
brief. In her petition, counsel states that, after a conscientious examination
of the record, she has determined that the appeal is wholly frivolous. Petition
to Withdraw, 5/30/19, at ¶ 6. Additionally, counsel states in her petition that
she mailed a copy of the Anders brief to Ott and a letter, which she attached
to the petition, advising him of his right to retain private counsel, represent
-3
J -S41002-19
himself on appeal, and/or raise any additional issues he believed the Court
should consider.4 See Letter from Casey S. Bogner, Esquire, to Ott, 5/30/19,
at 2. Finally, counsel's brief sets out two issues of arguable merit and,
pursuant to the dictates of Santiago, explains why she believes the appeal to
be frivolous. Accordingly, counsel has substantially complied with the
requirements of Anders and Santiago. We now turn to our independent
review of the record and the claims raised by Ott.
Ott first claims that the trial court erred by allowing approximately 30
plainclothed cadets from the Pennsylvania Wildlife Conservation Commission
to be present in the courtroom audience during his trial. Ott asserts that the
presence of the cadets was prejudicial to him because "they appeared to be
present on behalf of the Commonwealth," which "created the impression for
the jury that the crime [Ott was] charged with committing [was] an incredibly
serious crime that demand[ed] the attention of a significant number of off -
duty law enforcement officials." Anders Brief, at 14. This claim is waived.
It is axiomatic that the absence of a contemporaneous objection results
in the waiver of the issue on appeal. Commonwealth v. Leaner, 202 A.3d
749, 771 (Pa. Super. 2019). See Pa.R.A.P. 302(a) ("Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.").
Here, at the outset of trial and prior to the jury entering the courtroom,
the court advised counsel as follows:
4 Ott has not filed a response to counsel's Anders brief.
- 4 -
J -S41002-19
THE COURT: All right. Then what we will do is go ahead and get
the jury and I am just going to advise the jury that we do have a
group of cadets from the Wildlife Conservation Academy observing
the trial process and that they should not be distracted by any of
you here in the courtroom but that you are all here as guests of
the [c]ourt.
N.T. Trial, 1/3/19, at 4.
After the members of the jury were sworn, the court informed them as
follows:
I wanted to let you know we have a full house here today. There
are cadets from the Pennsylvania Wildlife Conservation Academy
who are guests of the [c]ourt today observing the trial process.
So I'm happy to welcome the cadets here today as they learn
about what happens in the course of a trial.
So I have asked them to be very mindful and respectful of the fact
that the jury should not be distracted by them. So I wanted you
to know who they are and why they're here. And now you can
forget that they're here. Okay. And so I'm glad that the [c]ourt
can offer the opportunity to them as they go through their
academy.
Id. at 5.
At no time following either statement by the court did trial counsels
object to the presence of the cadets in the courtroom. Accordingly, any claim
that their presence prejudiced Ott in the eyes of the jury is waived on appeal.
Leaner, supra.
Secondly, Ott claims that his sentence of 12 to 60 months' incarceration
in a state correctional institution was manifestly unreasonable where "his time
would be more productive in the local county jail," where he could participate
5 Ott was not represented at trial by current counsel.
- 5 -
J -S41002-19
in drug, alcohol and mental health treatment and better care for his family.
Brief of Appellant, at 15-16.
Ott's claim implicates the discretionary aspects of his sentence. Such a
claim does not entitle an appellant to review as a matter of right.
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,
before this Court can address such a discretionary challenge, an appellant
must comply with the following requirements:
An appellant challenging the discretionary aspects of his sentence
must invoke this Court's jurisdiction by satisfying a four-part test:
(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. 720; (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.
Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011).
Here, Ott filed a post -sentence motion to reconsider sentence, followed
by a timely notice of appeal to this Court. He has also included in his brief a
concise statement of reasons relied upon for allowance of appeal with respect
to the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).
Accordingly, we must now determine whether he has raised a substantial
question that the sentence appealed from is not appropriate under the
Sentencing Code.
The determination of what constitutes a substantial question must be
evaluated on a case -by -case basis. Commonwealth v. Paul, 925 A.2d 825,
- 6 -
J -S41002-19
828 (Pa. Super. 2007). "A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge's actions were
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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(citation and quotation marks omitted).
In the Rule 2119(f) statement included by counsel in her Anders brief,
counsel does not specify the particular claim Ott wished to raise. Rather,
counsel averred that, because Ott's sentence was squarely within the standard
range of the Sentencing Guidelines, Ott is unable to put forth a colorable
argument to warrant allowance of appeal. Although Ott's Rule 2119(f)
statement is defective, in cases where counsel files an Anders brief, this Court
has reviewed the matter even absent a separate Pa.R.A.P. 2119(f) statement.
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).
Accordingly, we do not consider the defect in counsel's Rule 2119(f) statement
as precluding review of whether Ott's issue is frivolous.6
Ott claims he has
significant medical issues that will be exacerbated by a length[y]
prison sentence, that a lengthy prison sentence will cause him to
lose his social security disability income and in turn lose his home
where his pregnant daughter is residing, and that, while his is
6 brief in this matter. "[I]n
We also note that the Commonwealth did not file a
the absence of any objection from the Commonwealth, we are empowered to
review claims that otherwise fail to comply with Rule 2119(f)."
Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006).
-7
J -S41002-19
incarcerated, he is unable to participate in outpatient drug and
alcohol . or mental health treatment[.]
. .
Anders Brief, at 16. He asserts that "a local sentence would have better
afforded him the ability to care for himself and his family and comply with his
treatment obligations" and, thus, his state sentence was "manifestly
unreasonable." Id.
This Court has previously held that a bald claim of excessiveness,
combined with an assertion that the court failed to properly consider the
defendant's personal circumstances, does not raise a substantial question
entitling a petitioner to review of his claim. Commonwealth v. Coolbaugh,
770 A.2d 788, 793 (Pa. Super. 2001) (claim that the court did not consider
his personal life situation of having drug problem does not raise substantial
question). See also Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa.
Super. 1999) (argument that court did not adequately consider defendant's
personal life situation as grandmother who had to provide care for small child
did not raise substantial question so as to permit appellate review of
discretionary aspects of sentence). Accordingly, Ott fails to raise a substantial
question and we decline to review the merits of his claim.
Judgment of sentence affirmed. Petition to withdraw granted.
-8
J -S41002-19
Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 08/12/2019
-9