Com. v. Burbage, O. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
-2-
J-S70005-15
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)
-3-
J-S70005-15
(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).
-4-
J-S70005-15
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
-5-
J-S70005-15
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,
-6-
J-S70005-15
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.
-7-
J-S70005-15
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
-8-
J-S70005-15
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.
-9-
J-S70005-15
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
- 10 -
J-S70005-15
“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.
- 11 -
J-S70005-15
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
- 12 -