Com. v. McClendon, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHACQAN MCCLENDON
Appellant No. 386 WDA 2015
Appeal from the Judgment of Sentence entered January 21, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0001969-2013
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 8, 2016
Appellant, Shacquan McClendon, appeals from the judgment of
sentence entered by the Court of Common Pleas of Erie County, following a
jury trial that convicted Appellant of robbery, recklessly endangering another
person (2 counts), and theft by unlawful taking.1 Appellant’s counsel filed a
petition to withdraw, alleging that no non-frivolous grounds exist for appeal,
and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
affirm the judgment of sentence and grant counsel’s petition to withdraw.
The trial court summarized the relevant background as follows.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701(a)(1)(ii), 18 Pa.C.S.A. § 2705 (2 counts), and 18
Pa.C.S.A. § 3921, respectively.
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On May 31, 2013, at approximately 9:00 p.m., victims
Chelsea Seyler and Ryan Droney [were] walking home from
Sanders Market, located on East 6th street in the city of Erie.
While they [were] walking westward on East 6th street, Appellant
walked past [sic] them from behind, turned around, and pointed
a black handgun at them. Appellant stood approximately one
foot away. Seyler immediately recognized Appellant as they
both graduated from East High School in 2012 and she knew him
from music class. Seyler and Appellant were also Facebook
friends. Although Appellant’s head was covered by his
sweatshirt’s hood, both Seyler and Droney could see Appellant’s
entire face.
With his gun pointed at the victims, Appellant told them to
empty their pockets. Appellant took a cellular phone from
Seyler, searched Droney’s pockets, and removed $20.00 from
his sweatshirt pocket. After a moment, Appellant gave the cell
phone back to Seyler, apologized to them both, and stated that,
“it’s been hard and tough times.” Appellant then fled the scene
and the victims walked back home.
Approximately 30 minutes after the robbery, the victims
called [the] police. Police arrived at their home and Seyler gave
them Appellant’s name as the assailant. Seyler also identified
Appellant during a police photo lineup on June 4, 2013.
On January 21, 2014, appellant’s jury trial commenced.
Both victims unequivocally identified Appellant as their assailant.
Although Appellant denied robbing the victims, he admitted that
he knew Seyler from school. Following testimony, the jury found
Appellant guilty of the foregoing offenses.
After trial, the Commonwealth filed its notice of intent
under 42 Pa.C.S.A. § 9712 (a), requesting imposition of a 5-year
mandatory minimum for robbery. On March 14, 2014, appellant
was sentenced to a mandatory minimum term of 5 to 10 years’
imprisonment at Count 1, robbery. The remaining counts
merged for sentencing purposes.
On March 24, 2014, Appellant filed a Motion To Reconsider
Sentence, which this [c]ourt denied on March 26, 2014.
Appellant filed a timely Notice of Appeal on April 21, 2014. In
response to this [c]ourt’s 1925(b) Order, Appellant filed a
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Statement of Matters Complained of on Appeal on June 12,
2014.
Trial Court Opinion, 7/7/14, at 1-2 (internal citations and footnotes omitted).
On January 21, 2015, a re-sentencing hearing was held following the
decision from this Court vacating Appellant’s prior sentence and remanding
for a new sentence in light of the Supreme Court’s decision in Alleyne v.
United States, 133 S.Ct. 2151 (2013). Commonwealth v. McClendon,
113 A.3d 348 (Pa. Super. 2014). Appellant was re-sentenced to an
aggregate of thirty-three to one-hundred twenty months of incarceration and
was credited for time served. Appellant filed a post-sentence motion on
January 30, 2015, which was denied. Appellant timely appealed. As
ordered, Appellant filed a Pa.R.A.P. 1925(b) statement, and Appellant’s
counsel simultaneously filed a statement of intent to file an Anders brief.
On August 31, 2015, Appellant’s counsel filed an Anders brief and a
petition for leave to withdraw as counsel. Counsel’s Anders brief raises the
following issue for our review: “Whether the appellant’s sentence is
manifestly excessive, clearly unreasonable and inconsistent with the
objectives of the Sentencing Code?” Anders/Santiago Brief at 3.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). In requesting a withdrawal, counsel must satisfy the
following procedural requirements: 1) petition the court for leave to
withdraw stating that, after making a conscientious examination of the
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record, counsel has determined that the appeal would be frivolous; 2)
provide a copy of the brief to the defendant; and 3) advise the defendant
that he or she has the right to retain private counsel, proceed pro se or raise
additional arguments that the defendant considers worthy of the court’s
attention. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).
Instantly, counsel’s petition to withdraw from representation provides
that counsel reviewed the record and concluded that the appeal is frivolous.
Furthermore, counsel notified Appellant that she was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
her Anders brief. Counsel also advised Appellant of his right to retain new
counsel, to proceed pro se, or to raise any additional points he deems
worthy of this Court’s attention. Accordingly, we conclude that counsel has
satisfied the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme 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.
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Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates
that she has complied with the briefing requirements of Santiago.
Once counsel has met her obligations, the reviewing court must fully
examine the proceedings and make an independent judgment as to whether
the appeal is, in fact, wholly frivolous. Santiago, 978 A.2d at 355 n.5.
Thus, we now turn to the merits of Appellant’s appeal.
Appellant argues that, although the trial court sentenced him within
the guidelines, it failed to consider the factors set out in 42
Pa.C.S.A. § 9721(b) and imposed a sentence that “is manifestly excessive,
clearly unreasonable and inconsistent with the objectives of the Pennsylvania
Sentencing Code.” Anders/Santiago Brief at 6. In support of this
contention, Appellant only contends that the trial court failed to take into
consideration the mitigating factors in his case, including Appellant’s young
age at the time of the offense, that Appellant was in his second year at
Mercyhurst University and majoring in Culinary Arts, that Appellant had no
prior record, and that Appellant apologized to the victims and returned the
property taken during the robbery. Id. at 6-7.
When reviewing a challenge to the trial court’s discretion, our standard
of review 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. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the
record discloses that the judgment exercised was manifestly
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unreasonable, or the result of partiality, prejudice, bias, or ill-
will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002), appeal denied, 64 A.3d 630 (Pa. 2003)).
An appellant’s right to appeal a discretionary aspect of sentence is not
absolute. Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.
2011).
Before we reach the merits of this [issue], we must engage in a
four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a [Pa.R.A.P. 2119(f)] concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of sentence; and (4)
whether the concise statement raises a substantial question that
the sentence is appropriate under the sentencing code. . . .
Finally, if the appeal satisfies each of these four requirements,
we will then proceed to decide the substantive merits of the
case.
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)
appeal denied, 109 A.3d 678 (Pa. 2015). Appellant has complied with the
first three of these requirements as he has filed a timely appeal, preserved
his issue through a post-sentence motion, and his brief includes a Rule
2119(f) statement. We ordinarily next would determine if Appellant’s Rule
2119(f) statement presents a substantial question for review. As explained
below, we need not resolve that question.
Even if Appellant had a raised a substantial question, he still cannot
obtain relief. Contrary to Appellant’s claim, our review of the transcript of
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the re-sentencing hearing indicates that the trial court did consider the
factors set forth in Section 9721(b) as well as the particular mitigating
circumstances that Appellant points out. See N.T. Sentencing, 1/21/15, 8-
9, 11, 14-16, 22-23. The trial court specifically stated the following at
Appellant’s re-sentencing hearing.
In this case I’ve considered the Pennsylvania Sentencing
Code and it’s [sic] various factors.
....
Initially the sentencing of the [c]ourt was 60 months to 10
years, but I make the following observations: The guidelines are
40 to 54 months. And normally I pick a sentence here at the
bottom end of the standard range because he has no prior
record. Pastor Sanders and his mother made a little headway
with me. There’s nothing mitigated, nothing at all about this
offense, okay, but I’m going to go below the standard range, the
bottom end of the standard range by a little bit because I do
think that his young man has rehabilitative potential and I don’t’
believe every individual is as bad as the worst thing they’ve ever
done. So I look at crimes but I sentence individuals.
....
So here I am going to impose a sentence . . . of 33 months at
the bottom end, which is seven months below the minimum of
the guidelines. Not as low as I might have gone. Not as high as
I was going to go when I came out here. But the people that
have, participated and I’ve come down on that number, simply
because I think he has rehabilitative potential. . . . I can’t go
any lower than that. To impose less of a sentence would be to
diminish the seriousness of what you did.
N.T. Sentencing, 1/21/15, at 26-28. Accordingly, Appellant’s argument that
the trial court failed to consider his mitigating circumstances fails. We
therefore agree with counsel that the issue Appellant seeks to litigate in this
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appeal is wholly frivolous. Further, we have reviewed the record and we do
not discern any non-frivolous issues that Appellant could have raised. As
such, 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: 3/8/2016
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