Com. v. Sappington, J. ( 2017 )

J-S79039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES KELLEY SAPPINGTON :
:
Appellant : No. 1622 EDA 2017
Appeal from the Judgment of Sentence April 18, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001932-2010
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 19, 2017
Appellant, James Kelley Sappington, appeals from the judgment of
sentence entered in the Delaware County Court of Common Pleas, following
revocation of his probation. We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows.
On May 27, 2010, Appellant entered a negotiated guilty plea to five counts
of child pornography, and one count each of dissemination of child
pornography and criminal use of a communication facility.1 The court
sentenced Appellant on September 9, 2010, to an aggregate term of twelve
(12) to twenty-four (24) months’ imprisonment for the child pornography
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1 18 Pa.C.S.A. §§ 6312(d); 6312(c); 7512(a), respectively.
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and dissemination convictions, plus five (5) years’ probation for the criminal
use of a communication facility conviction. Appellant subsequently violated
his probation. Following a violation of probation (“VOP”) hearing, the court
revoked Appellant’s probation, and resentenced him on November 20, 2012,
to nine (9) to twenty-four (24) months’ imprisonment, plus three (3) years’
probation, for the criminal use of a communication facility conviction.
On March 28, 2017, the court held another VOP hearing based on
allegations that Appellant had been in contact with minors, in violation of his
probation. Specifically, Appellant’s probation officer learned Appellant had
been having dinner at his parents’ house once a week for a period of four or
five months when his minor siblings were present, without approval from
Appellant’s probation officer. The court revoked Appellant’s probation on
this ground. The court resentenced Appellant on April 18, 2017, to nine (9)
to twenty-three (23) months’ imprisonment, plus two (2) years’ probation.
Appellant did not file a post-sentence motion. Appellant timely filed a notice
of appeal on May 4, 2017. On May 25, 2017, the court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Counsel subsequently filed a statement of intent to file
an Anders2 brief pursuant to Pa.R.A.P. 1925(c)(4).
As a preliminary matter, appellate counsel seeks to withdraw his
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2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967).
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representation pursuant to Anders and Commonwealth v. Santiago, 602
Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287 (Pa.Super. 2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[3] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
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3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition to withdraw representation.
The petition states counsel fully reviewed the record and concluded the
appeal would be wholly frivolous. Counsel indicates he notified Appellant of
the withdrawal request. Counsel also supplied Appellant with a copy of the
brief and a letter explaining Appellant’s right to proceed pro se or with new
privately retained counsel to raise any points Appellant believes have merit.
(See Letter to Appellant, dated October 3, 2017, at 1). In his Anders brief,
counsel provides a summary of the procedural history of the case. Counsel
refers to evidence in the record that may arguably support the issue raised
on appeal, and he provides citations to relevant law. The brief also provides
counsel’s reasons for his conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the requirements of
Anders and Santiago. See Wrecks, supra.
As Appellant has filed neither a pro se brief nor a counseled brief with
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new privately-retained counsel, we review this appeal based on the issue
raised in the Anders brief:
THE TRIAL COURT ERRED IN IMPOSING A SENTENCE OF
INCARCERATION ON [APPELLANT] FOR A NON-VIOLENT,
NON-HARMFUL VIOLATION OF HIS PROBATION FOR A
NON-VIOLENT OFFENSE.
(Anders Brief at 3).
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).
“In general, the imposition of a sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.”
Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).
Appellant argues the court’s sentence was “inappropriately severe”
given the nature of Appellant’s probation violation. Appellant asserts that
nothing in the record indicates Appellant had any sexual activity, physical
contact or interaction whatsoever with a minor, in connection with his
violation. Appellant claims the court could have imposed a more lenient
sentence. Appellant admits he violated his probation but insists the violation
is unrelated to his original child pornography offenses. As presented,
Appellant’s issue challenges the discretionary aspects of his sentence. See
Commonwealth v. Crump, 995 A.2d 1280 (Pa.Super. 2010), appeal
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denied, 608 Pa. 661, 13 A.3d 475 (2010) (explaining claim that court erred
by imposing sentence of total confinement for technical violations of
probation presents challenge to court’s sentencing discretion);
Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (explaining
claim that sentence is manifestly excessive challenges discretionary aspects
of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right. Commonwealth v. Sierra, 752 A.2d 910
(Pa.Super. 2000). An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal[;] (2)
whether the issue was properly preserved at sentencing or
in a motion to reconsider and modify sentence[;] (3)
whether appellant’s brief has a fatal defect[;] and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code[.]
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are waived if they are
not raised at the sentencing hearing or in a timely filed post-sentence
motion. Commonwealth v. Hartman, 908 A.2d 316 (Pa.Super. 2006).
See also Pa.R.Crim.P. 708(E) (stating motion to modify sentence imposed
after revocation shall be filed within 10 days of date of imposition).
Instantly, the court re-sentenced Appellant for his criminal use of a
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communication facility conviction on April 18, 2017. At the conclusion of the
re-sentencing proceeding, the court informed Appellant of his post-sentence
and appellate rights. Appellant made no objection to the discretionary
aspects of his sentence at the sentencing proceeding and did not file a post-
sentence motion.4 Thus, Appellant’s sentencing challenge is waived.5 See
Pa.R.Crim.P. 708(E); Hartman, supra. Following our independent
examination of the record, we conclude the appeal is frivolous and affirm the
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4 Appellant’s brief also fails to include the requisite concise statement of
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
Nevertheless, the Commonwealth did not object to this deficiency and due to
appellate counsel’s filing of an Anders brief, we can overlook this defect.
See Commonwealth v. Kiesel, 854 A.2d 530 (Pa.Super. 2004) (explaining
this Court may ignore appellant’s omission of Rule 2119(f) statement where
appellee does not object to appellant’s non-compliance). See also
Commonwealth v. Lilley, 978 A.2d 995 (Pa.Super. 2009) (addressing
discretionary aspects of sentencing claims in Anders brief despite counsel’s
non-compliance with Rule 2119(f)).
5 Moreover, even if Appellant had preserved his issue on appeal, it would
merit no relief. Appellant’s probation officer stated at the re-sentencing
hearing that Appellant had had contact with minors every weekend for four
or five months, without approval, even though Appellant was in treatment
and knew he was prohibited from contact with minors. Appellant could have
asked for supervised contact with his family members, but Appellant simply
chose not to do so. Appellant’s unsupervised and unauthorized visits with
his family, where his minor siblings were present, posed a risk to Appellant’s
family. Appellant’s probation officer learned of Appellant’s probation
violation because one of Appellant’s siblings reported it to a school
counselor. (See N.T. Re-sentencing Hearing, 4/18/17, at 5-8.) The
Commonwealth agreed with Appellant’s probation officer’s sentence
recommendation of nine (9) to twenty-three (23) months’ imprisonment
(with parole upon completion of a sex offenders’ treatment program), plus
two (2) years’ probation, and the court imposed the recommended sentence.
We see no reason to disrupt the court’s decision. See Hoover, supra.
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revocation sentence; we grant counsel’s petition to withdraw.6
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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6 The docket entries mistakenly list each of Appellant’s initial child
pornography sentences, imposed on September 9, 2010, as years of
imprisonment. The court sentenced Appellant on each of these offenses to
months of imprisonment. We direct the Clerk of Courts to fix this docketing
error.
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