Com. v. Williams, T. ( 2016 )

J-S13017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYMEEN WILLIAMS
Appellant No. 638 WDA 2015
Appeal from the Judgment of Sentence entered April 7, 2015
In the Court of Common Pleas of Erie County
Criminal Division at Nos: CP-25-CR-0002134-2014
CP-25-CR-0002508-2014
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 13, 2016
Appellant, Tymeen Williams, appeals from the judgment of sentence
the Court of Common Pleas of Erie County entered April 7, 2015. In the
brief filed by his counsel in accordance with Anders v. California, 386 U.S.
938 (1969), as refined by Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), Appellant contends his sentence is manifestly excessive. Specifically,
Appellant argues the sentencing court considered impermissible factors in
fashioning his sentence. His counsel concurrently filed a petition for leave to
withdraw. For the reasons explained below, we grant counsel’s petition for
leave to withdraw and affirm Appellant’s judgment of sentence.
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*
Former Justice specially assigned to the Superior Court.
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The trial court summarized the relevant background of the case as
follows:
On January 12, 2015, Appellant pled guilty to disarming a law
enforcement officer without lawful authority, firearms not to be
carried without license, and resisting arrest at [d]ocket [n]umber
2134 of 2014 and simple assault at [d]ocket [n]umber 2508 of
2014.
On April 7, 2015, [the trial court sentenced Appellant to an
aggregate term of incarceration of 58 months to 112 months.]
Appellant filed a [m]otion for [r]econsideraton of [s]entence on
April 9, 2015, which was denied by [o]rder dated April 9, 2015.
On April 17, 2015, Appellant filed a notice of appeal. On April
22, 2015, Appellant filed a [s]tatement of [m]atters
[c]omplained of on [a]ppeal[, challenging, inter alia, the
sentencing court’s reliance on impermissible factors in fashioning
his sentence].
Trial Court Opinion, 6/11/15, at 1-2 (footnote omitted).
We must address the request to withdraw before reviewing the merits
of Appellant’s issue. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005). As this Court recognized in Commonwealth v. Cartrette,
83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in Santiago
did not change the procedural requirements for requesting withdrawal from
representation.
Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous;
2) furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel
or raise additional arguments that the defendant deems worthy
of the court’s attention.
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Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.
Super. 2009)).
We conclude counsel has satisfied the procedural requirements set
forth in Anders.1 In the petition to withdraw, counsel explains her
conclusion, based on a review of the case, that there are no meritorious
issues to be raised on Appellant’s behalf and that proceeding with the case
would be frivolous. In addition, counsel furnished a copy of the appellate
brief to Appellant and advised Appellant of his right to retain new counsel or
act on his own behalf to raise additional arguments or points for this Court’s
consideration.
Having concluded counsel satisfied the procedural requirements of
Anders, we must ascertain whether the brief satisfied the substantive
mandates prescribed in Santiago. In Santiago, our Supreme Court
announced:
[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
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1
Although in her petition to withdraw, counsel stated that she was filing an
Anders/McClendon brief, the brief filed with this Court appropriately refers
to Santiago, requiring that counsel state the reasons for concluding the
appeal is frivolous, rather than comply with the standard set forth in
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), abrogated by
Santiago.
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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.
In the Anders brief, counsel has included a statement of the case that
includes a procedural history of the case. Counsel has satisfied the first
requirement.
The second required element of an Anders brief is reference to
anything in the record that counsel believes arguably supports the appeal.
Here, counsel suggests that the trial court relied on impermissible factors,
namely, “that . . . Appellant was in possession of a stolen firearm at the time
of his arrest.” Appellant’s Brief at 7. Appellant notes this circumstance was
not mentioned in the guilty plea. Counsel, therefore, has satisfied the
second Anders requirement.
Counsel also has satisfied the third element of Anders, stating her
conclusion that the appeal is frivolous. Id. at 8-9. Finally, counsel provided
her reasons for concluding the appeal is frivolous. Id. at 9. Thus, counsel
has satisfied the fourth and final element of the Anders test.
Having determined the procedural and substantive requirements of
Anders are satisfied, we must conduct our own independent review of the
record to determine if the issue identified in this appeal is, as counsel
asserts, wholly frivolous, or if there are any other meritorious issues present
in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)
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(“[T]he court—not counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so finds, it
may grant counsel’s request to withdraw.”).
As noted above, Appellant argues the trial court abused its discretion
by imposing a manifestly excessive sentence. Specifically, Appellant argues
the trial court relied on an impermissible factor, namely that he was in
possession of a stolen weapon at the time of his arrest. Appellant’s Brief at
8. As such, Appellant presents a challenge to the discretionary aspects of
his sentence. Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super.
2009).
In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this
Court reiterated:
Appellant is not entitled as of right to a review of such a
challenge. Our jurisdiction over a claim regarding the
discretionary aspects of sentence must be established as follows:
We conduct a four-part analysis to determine: (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 there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S. § 9781(b).
Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (internal quotation marks, citations and modifications
omitted)).
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A review of the record reveals that Appellant has satisfied the first
three elements of the test. We now turn to the fourth element, whether
there is a substantial question under 42 Pa.C.S.A. § 9781(b) that the
sentence appealed from is not appropriate.2 An allegation that the trial
court considered an impermissible sentencing factor raises a substantial
question. Commonwealth v. Matroni, 923 A.2d 444 (Pa. Super. 2007).
Thus, we will consider the merits of Appellant’s sentencing challenge.
Appellant failed to show that the sentencing court abused its discretion
in fashioning Appellant’s sentence.3 To this end, the trial court noted that
Appellant’s possession of a loaded, stolen firearm at the time of arrest was
mentioned in four separate instances during sentencing proceedings, yet
Appellant never challenged this statement. Trial Court Opinion, 6/11/15, at
2-4. The trial court also emphasized the circumstance complained of by
Appellant was included in the offense description of the Pre-Sentence
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2
“A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Johnson, G., 873 A.2d 704, 708 (Pa. Super.
2005).
3
“In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court’s decision under an abuse of discretion standard.
Additionally, this Court’s review of the discretionary aspects of a sentence is
confined by the statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).”
Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013)
(quotation marks and citations omitted).
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Investigation report (PSI). Appellant did not challenge the accuracy of the
PSI, despite the fact he had the opportunity to do so.
The trial court also noted that even if the circumstance was indeed not
accurate, the court’s reliance on such circumstance does not warrant a
finding of abuse of discretion. We agree. The sentencing court noted:
The [c]ourt considered Appellant’s age, work, education, and
personal history, and that the crimes were Appellant’s first non-
summary charges as an adult. The [c]ourt balanced these
factors with the serious nature of the crimes and that Appellant
has an extensive juvenile record, which includes three felony
adjudications. The [c]ourt also noted Appellant seemed to have
a recurring issue with anger management and substance abuse
issues. Appellant’s sentences were in the standard range of the
Sentencing Guidelines. Therefore, Appellant’s sentences were
justified absent consideration of possession of a stolen firearm
when arrested.
Trial Court Opinion, 2/5/15, at 4-5 (internal citations omitted).
In light of the foregoing, we conclude that the trial court did not abuse
its discretion in fashioning Appellant’s sentence, even if it relied on an
impermissible factor, because the sentencing court had independently valid
reasons supporting Appellant’s sentence. See Commonwealth v. Smith,
673 A.2d 893 (Pa. 1996) (where departure sentence was justified by
independently valid reasons, even though impermissible sentencing factor
also was employed in support, sentence must be affirmed);
Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa. Super. 2008) (“Even if
a sentencing court relies on a factor that should have not been considered,
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there is no abuse of discretion when the sentencing court has significant
other support for its departure from the sentencing guidelines.”).4
In summary, we agree with counsel that any challenge to the trial
court’s sentence is frivolous. Our independent review of the record does not
reveal any non-frivolous arguments available to Appellant. We therefore
affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Counsel’s petition for leave to
withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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4
As noted above, the sentencing court sentenced Appellant in the standard
range of the sentencing guidelines. As such, the instant matter is even less
assailable than Smith and Sheller.
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