Com. v. Burbage, O. ( 2015 )


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  • J-S70005-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    OLIVER MERVIN BURBAGE,
    Appellant                   No. 3053 EDA 2014
    Appeal from the Judgment of Sentence September 22, 2014
    in the Court of Common Pleas of Delaware County
    Criminal Division at No.: CP-23-CR-0005041-2012
    BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                            FILED DECEMBER 04, 2015
    Appellant, Oliver Mervin Burbage, appeals from the judgment of
    sentence imposed on September 22, 2014, following his resentencing after a
    jury conviction of escape.1          Appellant’s counsel has filed a brief and a
    petition to withdraw under Anders v. California, 
    386 U.S. 738
    (1967), and
    Commonwealth v. Santiago, 
    978 A.2d 349
    (Pa. 2009), alleging that the
    appeal is wholly frivolous.       We affirm the judgment of sentence and grant
    counsel’s petition to withdraw.
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    18 Pa.C.S.A. § 5121.
    J-S70005-15
    We take the underlying facts and procedural history in this matter
    from this Court’s previous decision on direct appeal and our review of the
    certified record.
    This case involves an incident that occurred on June 22,
    2011, on the 800 block of McDowell Avenue, in Chester,
    Delaware County.      Pennsylvania State Trooper Robert Kirby
    testified that at approximately 11:00 a.m. that morning, he had
    conducted an interview regarding a separate matter in nearby
    Eddystone. Trooper Kirby was aware that a felony warrant
    [dated June 15, 2011] had been issued by Bucks County for
    Burbage’s arrest. Trooper Kirby was also familiar with Burbage
    based upon prior investigations of other criminal activity in which
    Trooper Kirby had met Burbage face-to-face. At approximately
    11:30 a.m., Trooper Kirby finished his interview in Eddystone
    and decided to drive by 835 McDowell Avenue, the address
    where Burbage’s girlfriend was believed to reside.
    Trooper Kirby testified that as he approached 835
    McDowell Avenue, he spotted Burbage in the front yard and a
    four-year-old boy on the porch. Trooper Kirby stopped his
    unmarked patrol car approximately 50 feet from Burbage, exited
    the vehicle with his police baton, and walked toward Burbage.
    Trooper Kirby was not in full uniform, but he was wearing his
    badge in plain view on his belt. Once Trooper Kirby was within
    20 to 25 feet of Burbage, he declared, “State Police, get on the
    ground, you’re under arrest.”      He yelled several times for
    Burbage to get on the ground.          Instead of obeying the
    commands, Burbage stared at Trooper Kirby and took a stance
    as if he might draw a weapon. In response, Trooper Kirby drew
    his firearm and pointed it in Burbage’s direction. Burbage then
    fled from Trooper Kirby and entered the residence at 835
    McDowell Avenue.
    Trooper Kirby indicated that he was not assisted by any
    other police officers, and since the four-year-old boy was
    unattended on the porch, he called 911 to obtain backup before
    entering the residence.     The residences on this block are
    connected row houses, preventing easy access to the rear of the
    homes from the front. Once additional officers arrived, Trooper
    Kirby entered the house and found the boy’s parents, but
    Burbage had already exited the house. Although Trooper Kirby
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    did not successfully detain Burbage, officers eventually took
    Burbage into custody on August 8, 2011.
    *     *     *
    The aforementioned testimony was presented at a one-day
    jury trial on January 29, 2013, after which the jury convicted
    Burbage of the offense of escape. On March 21, 2013, [after
    review of the Pre-Sentence Investigation Report (PSI)] the court
    sentenced him to three to six years’ incarceration [to be served
    consecutively to any other sentence Appellant was then serving],
    with credit for time served. . . .
    (Commonwealth          v.   Burbage,   No.       1219   WDA   2014,   unpublished
    memorandum at *1-*3 (Pa. Super. filed June 3, 2014) (record citations and
    footnotes omitted)).
    At sentencing, by agreement of the parties, the trial court gave
    Appellant credit for time served from August 8, 2011 through March 21,
    2013. (See Trial Court Opinion, 11/12/14, at 1).              On April 17, 2013,
    Appellant filed a timely notice of appeal. While the appeal was pending, the
    trial court received notice from the Department of Corrections (DOC) stating
    that the credit for time served was improper because DOC had already
    credited that time against a sentence from another county.             (See N.T.
    Resentencing, 9/22/14, at 4-5).        On October 9, 2013, without notice to
    Appellant and without a hearing, the trial court amended the sentence,
    stripping Appellant of credit for time served. (See Notice of Appeal,
    11/06/13, at unnumbered page 1; Commonwealth v. Burbage, No. 3072
    EDA 2013, unpublished memorandum *3 (Pa. Super. filed August 11, 2014)
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    (Burbage II)).          Appellant filed a second timely appeal, challenging the
    legality of the resentencing.
    On June 3, 2014, this Court affirmed the original judgment of
    sentence.     Appellant did not seek leave to appeal to the Pennsylvania
    Supreme Court. On August 11, 2014, this Court reversed the judgment of
    sentence and remanded for a new sentencing hearing. (See Burbage 
    II, supra
    at *11).
    On September 22, 2014, the trial court held a new sentencing hearing.
    The court sentenced Appellant to a term of incarceration of not less than
    three nor more than six years of incarceration less fifteen days credit for
    time served. (See N.T. Resentencing, 9/22/14, at 9). Thus, the sentence
    was identical to the original sentence with the exception of the amount of
    credit for time served. The instant, timely appeal followed. On October 23,
    2014, the trial court ordered Appellant to file a concise statement of errors
    complained of on appeal. See Pa.R.A.P. 1925(b). On November 6, 2014,
    counsel filed a statement of intent to file an Anders2 brief. See Pa.R.A.P.
    1925(c)(4). On November 12, 2014, the trial court filed an opinion.        See
    Pa.R.A.P. 1925(a).
    On appeal, the Anders brief raises the following question for our
    review:
    ____________________________________________
    2
    See 
    Anders, supra
    ; see also, Commonwealth v. McClendon, 
    434 A.2d 1185
    (Pa. 1981).
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    Was the sentence imposed on [Appellant] harsh and
    excessive under the circumstances?
    (Anders Brief, at 3).
    Appellant’s counsel has petitioned for permission to withdraw and has
    submitted an Anders brief, which is procedurally proper for counsel seeking
    to withdraw on direct appeal. See 
    Anders, supra
    at 744. Court-appointed
    counsel who seeks to withdraw from representing an appellant on direct
    appeal on the basis that the appeal is frivolous 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, supra at 361. When we receive an Anders brief, we first rule on
    the petition to withdraw and then review the merits of the underlying issues.
    See Commonwealth v. Garang, 
    9 A.3d 237
    , 240-41 (Pa. Super. 2010).
    In addition, “[p]art and parcel of Anders is our Court’s duty to review the
    record to insure no issues of arguable merit have been missed or misstated.”
    Commonwealth v. Vilsaint, 
    893 A.2d 753
    , 755 (Pa. Super. 2006).
    In the instant matter, counsel has substantially complied with all the
    requirements of Anders and Santiago. Specifically, he has petitioned this
    Court to withdraw because “counsel has found no issues to raise in this
    appeal and he believes this appeal to be wholly frivolous.” (Application to
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    Withdraw Appearance, 3/13/15, at unnumbered page 1). In addition, after
    his review of the record, counsel filed a brief with this Court that provides a
    summary of the procedural history and facts with citations to the record,
    refers to any facts or legal theories that arguably support the appeal, and
    explains why he believes the appeal is frivolous. (See Anders Brief, at 6-
    10).   Lastly, he has attached, as an exhibit to his petition to withdraw, a
    copy of the letter sent to Appellant giving notice of his rights, and including a
    copy of the Anders brief and the petition.       (See Application to Withdraw
    Appearance, 3/13/15, at unnumbered page 3); see also Commonwealth
    v. Millisock, 
    873 A.2d 748
    , 749 (Pa. Super. 2005). Appellant has not filed
    a response. Because counsel has substantially complied with the dictates of
    Anders, Santiago, and Millisock, we will examine the issues set forth in
    the Anders brief that counsel believes have arguable merit. See Garang,
    supra at 240-41.
    The Anders brief challenges the discretionary aspects of Appellant’s
    sentence, claiming that the sentence was harsh and excessive, the trial court
    failed to consider mitigating factors, and the trial court unreasonably
    imposed a consecutive sentence. (See Anders Brief, at 6-10). Preliminarily,
    we note, “[i]ssues challenging the discretionary aspects of sentence must be
    raised in a post-sentence motion or by presenting the claim to the trial court
    during the sentencing proceedings.     Absent such efforts, an objection to a
    discretionary aspect of a sentence is waived.” Commonwealth v. McAfee,
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    849 A.2d 270
    , 275 (Pa. Super. 2004), appeal denied, 
    860 A.2d 122
    (Pa.
    2004) (citations and quotations marks omitted).            Appellant neither raised
    any objections to the sentence at sentencing nor filed a post-sentence
    motion challenging the discretionary aspects of sentence.               Therefore, we
    would ordinarily find the claim waived. However, Anders requires that we
    review claims that we would ordinarily find waived. See Commonwealth v.
    Lilley, 
    978 A.2d 995
    , 998 (Pa. Super. 2009) (citations omitted). Thus, we
    will not find Appellant’s claim waived on this basis.
    The right to appeal the discretionary aspects of a sentence is not
    absolute. See McAfee, supra at 274. When an appellant challenges the
    discretionary aspects of the sentence imposed, he must present “a
    substantial   question    as    to   the   appropriateness   of   the    sentence[.]”
    Commonwealth v. Anderson, 
    830 A.2d 1013
    , 1017 (Pa. Super. 2003)
    (citations omitted).     An appellant must, pursuant to Pennsylvania Rule of
    Appellate Procedure 2119(f), articulate “a colorable argument that the
    sentence violates a particular provision of the Sentencing Code or is contrary
    to   the   fundamental         norms   underlying    the     sentencing     scheme.”
    Commonwealth v. Kimbrough, 
    872 A.2d 1244
    , 1263 (Pa. Super. 2005)
    (en banc), appeal denied, 
    887 A.2d 1240
    (Pa. 2005) (citation omitted). If
    an appellant’s Rule 2119(f) statement meets these prerequisites, we have
    found that a substantial question exists. See Commonwealth v. Goggins,
    
    748 A.2d 721
    , 727 (Pa. Super. 2000), appeal denied, 
    759 A.2d 920
    (Pa.
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    2000).   “Our inquiry must focus on the reasons for which the appeal is
    sought, in contrast to the facts underlying the appeal, which are necessary
    only to decide the appeal on the merits.” 
    Id. (emphases in
    original).
    We note that Appellant has not included a Rule 2119(f) statement in
    his brief. (See Anders 
    Brief, supra
    ). “A failure to include the Rule 2119(f)
    statement does not automatically waive an appellant’s argument; however,
    we are precluded from reaching the merits of the claim when [the appellee]
    lodges an objection to the omission of the statement.” Commonwealth v.
    Roser, 
    914 A.2d 447
    , 457 (Pa. Super. 2006), appeal denied, 
    927 A.2d 624
    (Pa. 2007) (citation omitted). Here, the Commonwealth did not file a brief
    and thus has not objected to the absence of the Rule 2119(f) statement,
    therefore, we can review Appellant’s claim.
    Our standard of review is settled.
    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. In this context, an
    abuse of discretion is not shown merely by an error in judgment.
    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.
    Commonwealth v. Gonzalez, 
    109 A.3d 711
    , 731 (Pa. Super. 2015)
    (citation omitted).
    Here, Appellant simply states, “[Appellant] was convicted of a crime so
    trivial that his sentence of three to six years’ incarceration to be served
    consecutively can be called draconian.”       (Anders Brief, at 6).   Appellant
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    argues that his escape attempt consisted of disobeying a police order to lie
    down; that he was apprehended within a matter of weeks of the incident; no
    one was harmed because of his action; there was no damage to property
    and, despite his lengthy criminal record, he was a contributing member of
    society. (See 
    id. at 6-7).
    We note that a bald claim of an excessive sentence does not generally
    raise a substantial question.   See Commonwealth v. Dodge, 
    77 A.3d 1263
    , 1269 (Pa. Super. 2013), appeal denied, 
    91 A.3d 161
    (Pa. 2014).
    However, this Court has held that a claim of excessiveness in conjunction
    with a claim that the sentencing court did not consider mitigating factors
    presents a substantial question.    See Gonzalez, supra at 731 (citing
    Dodge, supra at 1272); see also Commonwealth v. Zeigler, 
    112 A.3d 656
    , 662 (Pa. Super. 2015).      We will therefore address the merits of
    Appellant’s claim.
    In the instant matter, the sentencing court had the benefit of a PSI.
    (See N.T. Sentencing, 3/21/13, at 15). We have stated that:
    [w]hen imposing a sentence, a court is required to
    consider the particular circumstances of the offense and the
    character of the defendant. . . . Where the sentencing court had
    the benefit of a presentence investigation report [PSI], we can
    assume the sentencing court was aware of relevant information
    regarding the defendant’s character and weighed those
    considerations along with mitigating statutory factors. Further,
    where a sentence is within the standard range of the guidelines,
    Pennsylvania law views the sentence as appropriate under the
    Sentencing Code.
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    Commonwealth v. Moury, 
    992 A.2d 162
    , 171 (Pa. Super. 2010) (internal
    quotation marks and citations omitted). Here, the sentencing court stated
    that it had reviewed the PSI and imposed a sentence that was within the
    standard range of the guidelines. (See N.T. Sentencing, 3/21/13, at 15).
    Additionally, Appellant has not demonstrated that his sentence was
    manifestly excessive because the sentencing court failed to consider
    mitigating factors.    As discussed above, at sentencing, the trial court
    acknowledged the PSI, and considered the statements of counsel. (See 
    id. at 6,
    15). The trial court balanced this against Appellant’s lengthy criminal
    history dating back to 1986.     (See 
    id. at 15).
      The trial court thereafter
    imposed a standard range sentence. (See id.).
    Clearly, the gist of Appellant’s argument is not that the sentencing
    court did not consider the relevant sentencing factors, but rather that the
    court did not weigh them as much in his favor as he wished. (See Anders
    Brief, at 6-10). Our review of the record does not show that the sentencing
    court abused its discretion or that it entered a manifestly unreasonable
    sentence.   See Zeigler, supra at 662 (holding sentence not manifestly
    unreasonable where sentencing court considered PSI, details of crime, and
    explained reasons     for   sentence);   see also   Moury, supra at 171.
    Appellant’s claim lacks merit.
    Appellant also claims that the sentencing court unreasonably imposed
    a consecutive sentence.       (See Anders Brief, at 6).     Pennsylvania law
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    “affords the sentencing court discretion to impose its sentence concurrently
    or consecutively to other sentences being imposed at the same time or to
    sentences already imposed. Any challenge to the exercise of this discretion
    ordinarily does not raise a substantial question.” Commonwealth v. Pass,
    
    914 A.2d 442
    , 446–47 (Pa. Super. 2006) (citation omitted); see also
    Commonwealth v. Hoag, 
    665 A.2d 1212
    , 1214 (Pa. Super. 1995) (holding
    that appellant is not entitled to “volume discount” by having sentences run
    concurrently). But see Commonwealth v. Dodge, 
    957 A.2d 1198
    (Pa.
    Super. 2008), appeal denied, 
    980 A.2d 605
    (Pa. 2009) (imposition of
    standard range sentences consecutively on thirty-seven counts of theft-
    related offenses for aggregate sentence of 58½ to 124 years’ imprisonment
    constituted virtual life sentence and, thus, was so manifestly excessive as to
    raise substantial question).
    “Thus, in our view, the key to resolving the preliminary substantial
    question inquiry is whether the decision to sentence consecutively raises the
    aggregate sentence to, what appears upon its face to be, an excessive level
    in light of the criminal conduct at issue in the case.”   Commonwealth v.
    Mastromarino, 
    2 A.3d 581
    , 587 (Pa. Super. 2010), appeal denied, 
    14 A.3d 825
    (Pa. 2011). Here, Appellant makes no showing or claim that his case is
    similar to the virtual life sentence at issue in Dodge. Because he has not
    done so, his claim that the trial court unreasonably imposed a consecutive
    sentence does not raise a substantial question.
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    Appellant’s issues do not merit relief.       Further, this Court has
    conducted an independent review of the record as required by Anders and
    Santiago and finds that no non-frivolous issues exist.
    Judgment of sentence affirmed.         Petition to withdraw as counsel
    granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/4/2015
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