Com. v. Clarke, K. ( 2017 )

J-S62034-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN ANTHONY CLARKE, :
:
Appellant : No. 460 MDA 2017
Appeal from the Judgment of Sentence February 13, 2017
in the Court of Common Pleas of Berks County,
Criminal Division, at No(s): CP-06-CR-0002521-2014
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 23, 2017
Kevin Anthony Clarke (Appellant) appeals from his February 13, 2017
judgment of sentence to an aggregate one to three years’ imprisonment
following the revocation of his probation. Counsel has filed a petition to
withdraw and a brief pursuant to Anders v. California, 386 U.S. 738(1967). We affirm Appellant’s judgment of sentence and grant counsel’s
petition to withdraw.
On September 30, 2014, Appellant pled guilty to criminal trespass and
terroristic threats and was sentenced to less than two years of incarceration
followed by seven years’ probation.
Once paroled from his sentence of incarceration, Appellant
violated the terms of his probation because of a new arrest at
*Retired Senior Judge assigned to the Superior Court.
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CP-06-CR-0003249-2014. At the Gagnon II[1] hearing,
Appellant admitted the violations and proceeded informally.
Following the recommendations of the Commonwealth, []
Appellant was resentenced to not less than one (1) nor more
than three (3) years’ incarceration at the Bureau of Corrections.
Concurrent to this sentence, [for count three, terroristic threats],
Appellant was resentenced to not less than one (1) nor more
than three (3) years’ incarceration at the Bureau of Corrections.
Following sentencing, a timely post sentence motion was
filed. [The trial court] denied the motion on February 27, 2017.
Appellant then filed an appeal on March 13, 2017.
Subsequently, Appellant filed a concise statement of errors
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure.
Trial Court Opinion, 5/23/2017, at 1 (citation omitted).
In this Court, counsel filed both an Anders brief and a petition to
withdraw as counsel. Accordingly, the following principles guide our review.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Further, our Supreme Court has specified the following
requirements for the Anders brief:
[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.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.2 Thus, we now have the
responsibility “‘to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.
2015) (quoting Santiago, 978 A.2d at 354 n. 5).
2 Appellant has not filed a response to counsel’s petition to withdraw.
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In his Anders brief, counsel states the following question for this
Court’s review:
Whether Appellant’s sentence of 1 to 3 years in a state
correctional institution on two counts (concurrent) was
manifestly excessive, clearly unreasonable, and contrary to the
fundamental norms underlying the Sentencing Code, where the
court imposed a sentence that failed to fully account for
Appellant’s remorse and the nature of the probation violation?
Anders Brief at 9.
We consider this question mindful of the following. It is within this
Court’s scope of review to consider challenges to the discretionary aspects of
an appellant’s sentence in an appeal following a revocation of probation.
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)
The imposition of 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. An abuse
of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
In determining whether a sentence is manifestly
excessive, the appellate court must give great
weight to the sentencing court’s discretion, as he or
she is in the best position to measure factors such as
the nature of the crime, the defendant’s character,
and the defendant’s display of remorse, defiance, or
indifference.
Upon revoking probation, a sentencing court may choose
from any of the sentencing options that existed at the time of
the original sentencing, including incarceration. [U]pon
revocation [of probation] ... the trial court is limited only by the
maximum sentence that it could have imposed originally at the
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time of the probationary sentence. However, 42 Pa.C.S.[]
§ 9771(c) provides that once probation has been revoked, a
sentence of total confinement may only be imposed if any of the
following conditions exist[s]:
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is not
imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.
In addition, in all cases where the court resentences an
offender following revocation of probation ... the court shall
make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the
sentence imposed [and] [f]ailure to comply with these provisions
shall be grounds for vacating the sentence or resentence and
resentencing the defendant. A trial court need not undertake a
lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.
Commonwealth v. Colon, 102 A.3d at 1033, 1044 (Pa. Super. 2014)
(citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
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there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to modify sentence, and the Anders brief contains a
statement pursuant to Pa.R.A.P. 2119(f). We thus consider whether there is
a substantial question that Appellant’s sentence is inappropriate.
Appellant contends
that the [trial] court failed to state reasons [for imposing
Appellant’s sentence that] comport with the requirements under
42 Pa.C.S. § 9721(b). The [trial] court failed to follow the
general principle that the sentence imposed should call for
confinement that is consistent with the 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 [Appellant], thereby creating a sentence that offends the
fundamental norms underlying sentencing. The [trial] court’s
failure to give these factors their proper weight in deciding
Appellant’s sentence raises a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Anders Brief at 17. With respect to Appellant’s latter argument, Appellant
claims that the court did not “consider the requisite factors under 42
PA.C.S.[ ] § 9721(b), particularly the rehabilitative needs of Appellant[,]”
noting that he had expressed remorse and sought to stay out of jail to
maintain his employment and be there for his children. Appellant’s Brief at
19. Appellant also argues that the trial court did not “fully consider” the
applicable sentencing factors. Appellant is essentially requesting this Court
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to reweigh the factors in his favor, averring the trial court failed to give
“these factors proper weight.” Id. at 17. Such a claim does not raise a
substantial question for our review. “We cannot re-weigh the sentencing
factors and impose our judgment in the place of the sentencing court.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009).
Moreover, in this case, the trial court had the benefit of a presentence
investigation report and thus is presumed to have considered all relevant
information. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super.
2004). Additionally, the trial court had the opportunity to listen to
Appellant’s allocution, on the record, at the time of sentencing. N.T.,
2/13/2017, at 4.
Furthermore, the trial court did state reasons on the record for
sentencing Appellant to a term of total incarceration.3
The thing that is most troubling about this matter is in a very
short period of time after you are convicted at this docket you
did basically the exact same thing and were sentenced by Judge
Barrett for the same thing, terroristic threats. … And you know,
[Appellant], I believe in giving somebody a break and giving
somebody a second chance but your sheet goes back here
[seven] years. I mean you’ve got plenty of time and you got a
3
Under 42 Pa.C.S. § 9711(c), as cited supra, there are limitations on a
sentence of total confinement after the revocation of probation. A trial court
may impose a term of incarceration if it determines, inter alia, that a
defendant has been convicted of another crime. See 42 Pa.C.S.
§ 9711(c)(1). Here, Appellant admitted that he had been convicted of
another crime, prompting the revocation of his probation. See N.T.,
2/13/2017, at 2 (indicating that, when asked if Appellant acknowledged that
he was in violation of his probation because of a new arrest and conviction,
Appellant answered “yes.”).
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real mix of cases here[,] sexual assault, delivery of controlled
substances, criminal trespass. You show no signs of good faith
here that can be relied on.
Id. at 4-5.
Thus, we agree with counsel that Appellant’s issue regarding his
sentence is frivolous. Moreover, we have conducted “a full examination of
the proceedings” and conclude that “the appeal is in fact wholly frivolous.” 4
Flowers, 113 A.3d at 1248. Accordingly, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2017
4 We reviewed the record mindful of the fact that “the scope of review in an
appeal following a sentence imposed after probation revocation is limited to
the validity of the revocation proceedings and the legality of the sentence
imposed following revocation.” Commonwealth v. Infante, 888 A.2d 783,
790 (Pa. 2005)
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