Com. v. Lawson, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID HENRY LAWSON :
:
Appellant : No. 1346 MDA 2021
Appeal from the Judgment of Sentence Entered September 29, 2021
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000813-2021
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 14, 2022
Appellant, David Henry Lawson, appeals from the aggregate judgment
of sentence of 14 to 36 months’ incarceration imposed following his guilty plea
to default in required appearance and possession of a controlled substance.1
With this appeal, Appellant’s counsel has filed an application to withdraw as
counsel and an Anders brief.2 Upon review, we affirm the judgment of
sentence and grant counsel’s application to withdraw.
On April 27, 2021, officers of the Scranton Police Department and U.S.
Marshal’s Fugitive Task Force were conducting surveillance of Appellant at an
address in the City of Scranton based upon Appellant’s failure to maintain
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 5124(a); 35 P.S. § 780-113(a)(16).
2 See Anders v. California, 386 U.S. 738 (1967).
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contact with the Pennsylvania Parole Board. Officers made visual contact with
Appellant and another individual and approached them. During Appellant’s
arrest, a bag containing synthetic marijuana was discovered on his person.
On May 7, 2021, Appellant pled guilty to the above-stated charges. Prior
to entering the plea, Appellant completed a written plea colloquy and the trial
court entered into an on-the-record colloquy to determine whether his plea
was knowing, voluntary, and intelligent. During his colloquy, Appellant
admitted to his possession of synthetic marijuana and his failure to appear
before the Parole Board. At the conclusion of the hearing, the trial court
accepted Appellant’s plea and deferred sentencing for the completion of a pre-
sentence investigative report (“PSI”).
On August 3, 2021, the trial court sentenced Appellant to an aggregate
sentence of 14 to 36 months’ imprisonment in a state correctional facility,
consisting of 8 to 24 months on the default in required appearance charge and
6 to 12 months on the possession of a controlled substance charge. On August
12, 2021, Appellant filed a post-sentence motion. On September 29, 2021,
after a hearing, the trial court denied all of the requested relief, except the
court modified the sentence to indicate that Appellant was eligible for boot
camp and issued an amended sentencing order. Appellant thereafter filed a
timely notice of appeal.3
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3Appellant filed his concise statement of errors complained of on appeal on
November 23, 2021. The trial court filed its opinion on January 12, 2022.
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As stated above, counsel has filed an Anders brief and application to
withdraw as counsel in this Court. In her Anders brief, counsel identifies the
following issues:
Whether the sentences imposed on both offenses were
inappropriately excessive, harsh and an abuse of discretion since
(1) they fell in the high end of the standard guidelines ranges and
(2) since the trial court directed that they be served in a state
correctional facility rather than in a county incarceration facility.
Anders Brief at 4 (emphasis and unnecessary capitalization omitted).
Before this Court can consider the merits of this appeal, we must first
determine whether appellate counsel has satisfied all of the requirements that
court-appointed counsel must meet before leave to withdraw may be granted.
Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en
banc); Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)
(en banc).
To withdraw from representing a defendant on direct appeal on the basis
that the appeal is frivolous, counsel must (1) petition the court for leave to
withdraw stating that she has made a conscientious examination of the record
and has determined that the appeal would be frivolous; (2) file a sufficient
Anders brief; and (3) provide a copy of the Anders brief to the defendant
and advise the defendant of his right to retain new counsel or proceed pro se
and to raise any additional points that he deems worthy of the court’s
attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa.
Super. 2016); Goodwin, 928 A.2d at 290.
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An Anders brief must comply with all of the following requirements:
[T]he 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also
Dempster, 187 A.3d at 270. If counsel has satisfied the above requirements,
it is then this Court’s duty to conduct its own review of the trial court’s
proceedings and render an independent judgment as to whether the appeal is
wholly frivolous. Dempster, 187 A.3d at 271; Bynum-Hamilton, 135 A.3d
at 183.
In the application to withdraw, counsel indicated that she had engaged
in a thorough review of the record and determined that there are no non-
frivolous grounds for the appeal. Counsel sent a letter to Appellant advising
him of his right to retain new counsel or proceed pro se and raise any
additional issues he deemed worthy of this Court’s attention, and counsel
included with the letter a copy of the petition to withdraw and Anders brief.
Counsel’s Anders brief includes a summary of the relevant procedural and
factual background to this case and discusses the reasons upon which counsel
bases her conclusion that the appeal is frivolous, with citation to applicable
caselaw. Therefore, we conclude that counsel has adequately complied with
the procedural requirements for withdrawal.
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We therefore proceed to conduct an independent review to ascertain
whether the appeal is indeed wholly frivolous. We first consider the issues
raised by counsel in the Anders brief and determine whether they are in fact
frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.
2018) (en banc); Dempster, 187 A.3d at 272. In addition, if we find all of
those issues frivolous, we then proceed to conduct an examination of the
record to discern if there are any other issues of arguable merit overlooked by
counsel. Yorgey, 188 A.3d at 1197; Dempster, 187 A.3d at 271-72.
Counsel identifies two discretionary sentencing issues in her brief. First,
counsel asserts that Appellant believes that his sentences in the high end of
the standard guideline range were not warranted based upon his addiction
issues and the fact that his crimes were non-violent. Appellant also maintains
that the trial court abused its discretion by directing that his sentence be
served in a state correctional institution rather than a county facility.
A challenge to the discretionary aspect of a sentence is not appealable
as of right. Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa. Super.
2019) (en banc).
Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code[.]
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Id. (citation omitted).
Counsel has complied with the first three requirements by filing a timely
notice of appeal, preserving the issues raised on appeal in the post-sentence
motion, and including a Rule 2119(f) statement in the Anders brief.4
Therefore, we must proceed to determine whether the identified issues
present a substantial question that merits our review. A substantial question
is present where the appellant advances an argument that the sentence was
inconsistent with a specific provision of the Sentencing Code or contrary to
the fundamental norms underlying the sentencing process. Akhmedov, 216
A.3d at 328.
Appellant’s first issue regarding the excessiveness of his sentence in
light of Appellant’s addiction and the non-violent nature of the offense
presents a substantial question. See Commonwealth v. Caldwell, 117 A.3d
763, 769-70 (Pa. Super. 2015) (en banc) (argument that sentence was
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4 The Commonwealth argues that Appellant’s issues are waived because they
were not included in the post-sentence motion or Pa.R.A.P. 1925(b) concise
statement. We do not find grounds for waiver here. Rather, we conclude that
the arguments identified in the Anders brief were included in Appellant’s post-
sentence motion. See Petition for Reconsideration of Sentence, 8/12/21, ¶¶8-
16. Moreover, while Appellant’s concise statement only generically challenges
the excessiveness of the sentence and does not indicate the specific issues
identified on appeal, this Court will excuse a Pa.R.A.P. 1925 defect where
appellate counsel has filed an application to withdraw and Anders brief. See
Commonwealth v. Hernandez, 783 A.2d 784, 786-87 (Pa. Super. 2001)
(reviewing discretionary sentencing issue despite counsel’s failure to file a
court-ordered Pa.R.A.P. 1925(b) statement where appellate counsel had filed
application to withdraw and Anders required independent review of the
record); see also see also Commonwealth v. Cox, 231 A.3d 1011, 1016
(Pa. Super. 2020).
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excessive in conjunction with assertion that court failed to consider mitigating
factors raised a substantial question).
Our standard of review for challenges to the discretionary aspects of
sentencing is as follows:
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. Taylor, 277 A.3d 577, 592-93 (Pa. Super. 2022) (citation
omitted).
The record reflects that Appellant’s sentences of 8 to 24 months’
incarceration for default in required appearance and 6 to 12 months for
possession of a controlled substance were within the standard guideline
range.5 When the sentencing court has applied the sentencing guidelines
correctly and imposed a sentence within the sentencing guidelines, the
appellate court shall only vacate the sentence “where the application of the
guidelines would be clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). In
imposing a sentence of confinement, the sentencing court must consider “the
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5 On the default in required appearance offense, Appellant had a prior record
score of 5 and the offense gravity score for this charge was 2; therefore, the
standard range was 1 to 9 months. 204 Pa. Code §§ 303.15, 303.16(a). The
offense gravity score for the possession offense was 3, and the standard range
was 6 to 16 months. Id.-7-
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protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant” pursuant to Section 9721(b) of the Sentencing Code. 42
Pa.C.S. § 9721(b). However, where the court had the benefit of the review
of a PSI, we must presume that the court was aware of relevant information
regarding the defendant’s character and weighed those considerations against
the Section 9721(b) factors. See Commonwealth v. Knox, 165 A.3d 925,
930 (Pa. Super. 2017); Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa.
Super. 2006).
Here, the trial court had the benefit of a PSI and therefore was presumed
to have been aware of any mitigating factors when imposing Appellant’s
sentence. See N.T., 8/3/21, at 2. Moreover, at sentencing, Appellant
indicated his remorse and explained to the court that his actions related to his
mental health and substance abuse issues. Id. at 2-3. Therefore, the record
demonstrates that the trial court was aware of and considered all relevant
factors when imposing Appellant’s sentence. Any lingering question regarding
the individualization of Appellant’s sentence was extinguished upon the trial
court’s decision—following a hearing on Appellant’s motion for
reconsideration—to not reduce the length of Appellant’s sentence based upon
the fact that he had been granted prior opportunities of supervision and
rehabilitation and had failed to comply. See Order, 9/29/21. Accordingly, we
concur in counsel’s determination that an argument that his standard
guideline sentence was excessive would be frivolous.
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In the second issue raised in the Anders brief, Appellant contends that
his sentence constituted an abuse of discretion based upon the trial court’s
determination that it be served in a state, rather than a county, correctional
facility. Counsel notes that Appellant’s crimes were Level 3 offenses under
the sentencing guidelines and therefore the trial court was permitted to
impose a county sentence. See 204 Pa. Code § 303.11(b)(3). In light of this
discretion afforded by the guidelines, counsel asserts that this issue raises a
substantial question.
Our case law offers conflicting guidance as to whether this claim
presents a substantial question. In Commonwealth v. Brown, 982 A.2d
1017 (Pa. Super. 2009), the appellant argued that his sentence was
unreasonable because he was given “state time” for a non-violent
misdemeanor and he was non-confrontational during his plea and sentencing
hearing. Id. at 1020. We found that the appellant had not raised a substantial
question, as he offered “no colorable argument or authority for the notion”
that the non-violent nature of his offense and his non-confrontational nature
in court cannot result in a sentence to be served in a state correctional
institution. Id.By contrast, in Commonwealth v. Fullin, 892 A.2d 843 (Pa. Super.
2006), we found that a substantial question had been raised in a claim that
the trial court abused its discretion by ordering a one-to-three-year,
aggravated range sentence in a state correctional institution rather than a
county facility because the offense fell under Level 2 of the guidelines which
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allows for “confinement in a county facility, but not a state facility.” Id. at
845, 850 (citing 204 Pa. Code § 303.11(b)(2)). Appellant also cites our
decision in Commonwealth v. Stanlnaker, 545 A.2d 886 (Pa. Super. 1988),
wherein we held that the appellant had presented a substantial question by
arguing that the trial court abused its discretion by ordering him to serve a
sentence of two years to five years less one day in a state, not a county,
facility; we noted that “because of appellant’s age at the time of the offense,
the lack of any prior criminal history, and the relative harshness of a state as
opposed to a county sentence, a substantial question exists with respect to
the appropriateness of his sentence.” Id. at 887-89.
We conclude that Appellant’s claim in this matter does not raise a
substantial question. Under Section 9762 of the Sentencing Code, an offender
who receives a sentence with a maximum term of more than two years and
less than five years shall be committed to the Department of Corrections
unless three conditions are satisfied: (i) the administrator of the county
facility agrees to accept prisoners with two-to-five-year sentences, (ii) the
attorney for the Commonwealth consents to a county sentence, and (iii) the
sentencing court approves the sentence being served in the county facility.
42 Pa.C.S. § 9762(b)(2); see also Commonwealth v. Mefford, 863 A.2d
1206, 1209 (Pa. Super. 2004) (en banc) (“[T]he plain meaning of Section
9762 is that length of maximum sentence determines where a prisoner is
committed.”). Therefore, while the trial court had the discretion to sentence
Appellant to serve his sentence in the county facility, the trial court lacked any
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ability to do so absent the consent of the Commonwealth and the approval of
the administrator of the county facility. 42 Pa.C.S. § 9762(b)(2); Mefford,
863 A.2d at 1209. As the record is devoid of any indication of the
Commonwealth or the local administrator’s assent to a county sentence, the
order that Appellant serve his sentence in a state institution was not only not
contrary to a provision of the Sentencing Code but the Sentencing Code
required the trial court to impose a state sentence.
In any event, even if we were to reach the merits of this issue, we would
agree with appellate counsel that the issue is frivolous. The trial court had
discretion to impose a county sentence, but it was only permitted to exercise
its discretion upon the satisfaction of certain conditions that are not present
here. Moreover, as discussed above, the sentencing proceedings reveal that
the trial court appropriately considered the relevant sentencing factors and
Appellant’s history in determining the length and location of Appellant’s
sentence. In particular, the trial court noted that Appellant had been given
multiple prior opportunities of supervised release and rehabilitation of which
he had failed to take advantage. See Fullin, 892 A.2d at 852-53 (sentencing
court did not abuse discretion where sentence was appropriate under
Sentencing Code and court considered and balanced sentencing factors,
reviewed PSI, and ultimately concluded that seriousness of offense and lack
of remorse supported state, rather than county, sentence).
Based on the foregoing, we agree with counsel that the issues raised by
Appellant are wholly frivolous. In addition, we have reviewed the certified
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record and have discovered no additional non-frivolous issues. Therefore, we
grant counsel’s application to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2022
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