Com. v. Ferst, V. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VINCENT FERST
Appellant No. 1007 EDA 2016
Appeal from the Judgment of Sentence dated March 21, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0605551-2002
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 30, 2017
Appellant Vincent Ferst appeals from the judgment of sentence
imposed on March 21, 2013, following a remand by this Court for
resentencing. With this appeal, Appellant’s counsel has filed a petition to
withdraw and an Anders1 brief, stating that the appeal is wholly frivolous.
For the reasons that follow, we affirm Appellant’s judgment of sentence and
grant counsel’s petition to withdraw.
In 2003, Appellant was convicted by a jury of two counts of robbery,
one count of aggravated assault, and one count of criminal conspiracy. 2 The
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* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
218 Pa.C.S. §§ 3701(a)(1), 2702(a)(1), and 903, respectively. Appellant
was simultaneously convicted of related charges on four other docket
(Footnote Continued Next Page)
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court imposed mandatory minimum sentences of five to ten years’
incarceration on both robbery counts, pursuant to 42 Pa.C.S. § 9712(a).3
Appellant also received sentences of two to five years’ incarceration for
aggravated assault and thirty months to five years’ incarceration for criminal
conspiracy. Each of these four sentences were to be run consecutively.4
Appellant filed a post-sentence motion requesting new counsel, which was
denied by operation of law. In 2007, after Appellant’s appellate rights were
twice reinstated nunc pro tunc via PCRA5 petitions, we affirmed Appellant’s
judgment of sentence. See Commonwealth v. Ferst, No. 1577 EDA 2006,
935 A.2d 10 (Pa. Super. Aug. 10, 2007), appeal denied, 940 A.2d 362 (Pa.
(Footnote Continued) _______________________
numbers: on docket numbers CP-51-CR-0605562-2002, CP-51-CR-1005471-
2002, CP-51-CR-0605541-2002, and CP-51-CR-0605532-2002, Appellant
was convicted of four counts of robbery, four counts of conspiracy, one
count of aggravated assault, one count of robbery of a motor vehicle (18
Pa.C.S. § 3702), one count of possessing an instrument of crime (18 Pa.C.S.
§ 907(a)), and one count of attempted robbery of a motor vehicle (18
Pa.C.S. § 901). Appellant was acquitted of the charges he faced under
docket number CP-51-CR-1005461-2002.
3 This statute provided mandatory sentences for offenses committed with
firearms.
4 Appellant’s full sentence across all docket numbers and charges
aggregated to forty-four and one-half to ninety-four years’ imprisonment.
5 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
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2007).6 The Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on December 20, 2007.7
In 2008, Appellant filed a timely pro se PCRA petition, which was
amended by counsel in 2011.8 On November 18, 2011, the PCRA court
dismissed the petition.9 On appeal from that dismissal, we found merit in
Appellant’s claim that his trial counsel was ineffective for failing to appeal
the mandatory minimum sentences imposed on the robbery charges.10 We
therefore affirmed the order dismissing the PCRA petition in part, reversed in
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6 The first PCRA petition resulted in a nunc pro tunc appeal, which we
dismissed for counsel’s failure to file a brief.
7 Appellant’s first direct appeal did not address the length of Appellant’s
sentences.
8 Appellant’s PCRA petition challenged trial counsel’s ineffectiveness on
several bases: his absence during pretrial proceedings, his failure to request
severance from the co-defendant, his failure to challenge the sufficiency of
the evidence on some of the charges, his failure to object during sentencing
upon the court’s consideration of impermissible factors, and his failure to
challenge an unlawful mandatory sentence.
9 The court granted the portion of the petition that raised issues under
another docket number, CP-51-CR-0605562; in that case, the PCRA court
determined that that there was insufficient evidence to sustain convictions
for two counts of robbery and one count of criminal conspiracy, and it
vacated the sentences for those offenses.
10 In between Appellant’s original sentencing in 2003 and the conclusion of
his direct review in December 2007, the Pennsylvania Supreme Court had
decided that the mandatory sentencing enhancement of 42 Pa.C.S. §
9712(a) does not apply to an unarmed co-conspirator. See Commonwealth
v. Dickson, 918 A.2d 95 (Pa. 2007).
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part, and remanded for “limited resentencing.” See Commonwealth v.
Ferst, No. 184 EDA 2012, 64 A.3d 32 (Pa. Super. Dec. 21, 2012).
Appellant was resentenced on March 21, 2013. The sentences for each
robbery charge were each reduced from five to ten years’ to four to eight
years’ incarceration, to run concurrently to the previously imposed sentences
for aggravated assault and criminal conspiracy.
Appellant filed a direct appeal on March 30, 2016, after again having
his appellate rights reinstated nunc pro tunc via a PCRA petition. On July 25,
2016, Appellant’s appointed counsel filed a brief with this Court in which he
claimed Appellant’s appeal was wholly frivolous, and requested leave to
withdraw as counsel.11
In an unpublished memorandum of March 20, 2017, we explained that
counsel’s request did not meet the notice requirements for a request to
withdraw accompanying an Anders brief, as counsel had not informed
Appellant of his right to proceed pro se in his appeal. See Commonwealth
v. Ferst, No. 1007 EDA 2016, 2017 WL 1050415 (Pa. Super. Mar. 20, 2017)
(unpublished memorandum). We therefore denied counsel’s petition to
withdraw and ordered counsel to file a new Anders brief and petition to
withdraw; while retaining jurisdiction, we allowed Appellant time to
thereafter file a pro se brief, if desired; and we allowed the Commonwealth
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11 The trial court did not issue a 1925(a) opinion due to counsel’s stated
intent to file an Anders brief.
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time to respond. On March 30, 2017, Appellant’s counsel filed a new Anders
brief and application to withdraw. On June 16, 2017, Appellant filed a pro se
brief on his own behalf.12 The Commonwealth did not respond.13
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d
379, 382 (Pa. Super. 2008) (citation omitted). We set forth the Anders
requirements in Commonwealth v. Orellana, 86 A.3d 877 (Pa. Super.
2014):
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in [Commonwealth v.]
Santiago[, 978 A.2d 349 (Pa. 2009)]. The 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
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12In the interim, Appellant filed a motion for an extension of time, and a
motion to filed a reduced number of copies, both of which were granted.
13 On July 27, 2017, a week after its original deadline to file a response, the
Commonwealth requested an extension of time. We granted the motion and
allowed the Commonwealth until September 21, 2017, to respond, but no
response was filed by that deadline.
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point that have led to the conclusion that the appeal is
frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a
letter that advises the client of his 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
court’s attention in addition to the points raised by counsel in the
Anders brief.”
Orellana, 86 A.3d at 879-80 (brackets and some citations omitted).
We conclude, as we did with counsel’s previously filed brief in this
case, that it complies with the requirements as outlined in Santiago.
Orellana, 86 A.3d at 879-80. Counsel provided a procedural and factual
summary of the case. Anders Br., 3/30/17, at 8-9. The Anders brief states
that “the only possible issue for direct appeal would be the discretionary
aspect of the sentence,” and refers to the portion of the record where
Appellant was resentenced. Id. at 12. Counsel makes abundantly clear that
he believes any such claim would lack merit. Id. at 12-14.14 Counsel states
that Appellant communicated to him that Appellant “believes that he needs
to appeal every step of his case.” Id. at 12.
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14 Counsel provides the following reasons: the sentences received were in
the lower half of the guidelines sentence range; the sentences run
concurrently, which is an improvement over the previous consecutive
sentence; the claim is waived because Appellant failed to preserve it at the
time of sentencing or in a post-sentence motion; and an appeal regarding
the discretionary aspect of a sentence must raise a substantial question
(citing 42 Pa.C.S. § 9781(b), and Pa.R.A.P. 2119(f)).
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We also find that Appellant’s counsel has now complied with the
necessary notice requirements in conjunction with his petition to withdraw.
Orellana, 86 A.3d at 879-80. Appellant’s counsel attached to his petition to
withdraw a copy of a letter sent to Appellant, dated March 29, 2017, in
which counsel advises Appellant of the above rights, including his right to
proceed with the appeal pro se, and indicates that he has provided Appellant
with a copy of the Anders brief.
Having concluded that counsel has satisfied the above requirements, it
is now our duty to conduct our own review to determine “whether the appeal
is, in fact, wholly frivolous” and to discern “if there are any additional, non-
frivolous issues overlooked by counsel.” See Commonwealth v. Goodwin,
928 A.2d 287, 291 (Pa. Super. 2007) (en banc); Commonwealth v.
Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015). We consider not only the
Anders brief filed by counsel, “but also any pro se appellate brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.), appeal
denied, 936 A.2d 40 (Pa. 2007).
In his pro se brief, Appellant raises one issue for our review: “Is
Appellant entitled to be resentenced under the dictates of Alleyne v. United
States, 133 S. Ct. 2151 (2013) where his sentences were consolidated?”
Appellant’s Brief at 4.
Generally, a challenge to the application of a mandatory
minimum sentence is a non-waivable challenge to the legality of
the sentence. Issues relating to the legality of a sentence are
questions of law, as are claims raising a court's interpretation of
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a statute. Our standard of review over such questions is de novo
and our scope of review is plenary.
Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super.) (citations
omitted), appeal denied, 955 A.2d 356 (Pa. 2008).
Appellant argues that the mandatory minimum sentences he received
on his other docket numbers have been rendered illegal by Alleyne.
Appellant’s Brief at 7.15 Appellant claims that those cases are on direct
appeal due to his 2013 resentencing in the instant, related case. Id. at 7-8.
Appellant also maintains that a court has unending jurisdiction to correct
illegally imposed sentences. Id. at 8.
“Alleyne held that any fact that, by law, increases the penalty for a
crime must be treated as an element of the offense, submitted to a jury,
rather than a judge, and found beyond a reasonable doubt.”
Commonwealth v. Washington, 142 A.3d 810, 812 (Pa. 2016). “The
effect was to invalidate a range of Pennsylvania sentencing statutes
predicating mandatory minimum penalties upon non-elemental facts and
requiring such facts to be determined by a preponderance of the evidence at
sentencing.” Id. A challenge that a sentence is illegal because it is based
upon a statute which has been rendered unconstitutional by Alleyne may be
raised at any point during a direct appeal. See Commonwealth v. Barnes,
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15 For example, Appellant complains that he received a five to ten years’
mandatory minimum sentence of incarceration for robbery of a motor vehicle
at CP-51-CR-0605541-2002.
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151 A.3d 121, 126-27 (Pa. 2016) (applying Alleyne because an appellant
should receive the benefit of a new rule of law announced while a direct
appeal is pending).
After careful review, we conclude that Appellant is not entitled to
relief. In 2013, following remand by this Court, Appellant was resentenced
on the instant docket number alone, and his mandatory minimum sentences
were removed.16 We do not agree with Appellant’s assertion that the limited
resentencing in 2013 on the instant docket number implicates the 2003
sentences Appellant received on other docket numbers. Nor are those
other cases before us on appeal.
Moreover, we have previously rejected the argument that a mandatory
minimum sentence imposed prior to the issuance of Alleyne is an illegal
sentence. See Washington, 142 A.3d at 814 (stating that although
Alleyne announced a new rule of law which implicates the legality of
mandatory minimum sentences, “a new rule of law does not automatically
render final, pre-existing sentences illegal. A finding of illegality, concerning
such sentences, may be premised on such a rule only to the degree that the
new rule applies retrospectively”); Commonwealth v. Ciccone, 152 A.3d
1004, 1007 (Pa. Super. 2016) (en banc) (rejecting the position “that a
mandatory sentencing statute rendered illegal by Alleyne is void ab initio
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16 We note the new sentences Appellant received were shorter in length,
within the standard range of the sentencing guidelines, and set to run
concurrently.
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thereby rendering any sentence imposed thereunder invalid”), appeal
denied, No. 27 MAL 2017, 2017 WL 2424725 (Pa. June 5, 2017).
Based on the foregoing, we agree with appellate counsel that the
sentencing issue raised by Appellant lacks merit. In addition, we have
reviewed the certified record consistent with Flowers, 113 A.3d at 1250,
and have discovered no additional arguably meritorious issues. Therefore,
we grant appellate counsel’s petition to withdraw and affirm the trial court’s
judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2017
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