Com. v. Gamble, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
REGINALD JAMES GAMBLE
Appellant No. 402 MDA 2017
Appeal from the Judgment of Sentence February 6, 2017
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000772-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 18, 2017
Reginald James Gamble appeals from his judgment of sentence,
entered in the Court of Common Pleas of Adams County, following his
conviction for delivery of a controlled substance.1 Gamble’s counsel seeks to
withdraw pursuant to Anders v. California, 368 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
grant counsel’s petition to withdraw and affirm Gamble’s judgment of
sentence.
The trial court stated the facts of this case as follows:
On June 15, 2016[,] at approximately 7:30 P.M.[,]
Detective Wm. T. Hartlaub of the Conewago Township Police
Department met with a confidential informant (“C.I.”) at an
undisclosed location. C.I. advised that he/she spoke with Jamie
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1
35 P.S. § 780-113(30)(a).
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Smith that day via text message and that Smith stated that she
had marijuana and cocaine to sell. C.I. had previously met
Smith and had purchased directly from her in the past. On June
15, 2016, C.I. and Smith through text messages and telephone
calls made arrangements to meet at the Sunoco Station located
at 45 West Hanover Street in Bonneauville Borough, Adams
County, PA. Smith agreed to sell C.I. a quarter ounce of
marijuana for $120.00 and a half gram of cocaine for $150.00.
Prior to the hand[-]to[-]hand buy, Detective Hartlaub searched
C.I. and C.I.’s vehicle for any money and/or controlled substance
and failed to locate either. At approximately 8:00 P.M.[,] C.I.
pulled into the Sunoco Station parking lot with Detective Harlaub
as a passenger. Smith was driving her vehicle with an unknown
African-American male as her passenger. C.I. approached
Smith’s vehicle and handed Smith U.S. currency in exchange for
a knotted baggie of suspected marijuana and a knotted baggie of
suspected cocaine.
C.I. turned over the baggies to police, and police followed
Smith’s vehicle. Police conducted a traffic stop, and the
unknown male in Smith’s car was identified as [Gamble].
[Gamble] was searched incident to arrest, and police located a
black digital scale and over $200.00 in U.S. currency on his
person. Police located the photocopied currency provided to C.I.
for the exchange in the center console of Smith’s vehicle. Police
also located an eye lens contact case containing suspected
cocaine in Smith’s car. After being read her [Miranda2]
Warnings, Smith confessed that the marijuana was hers and that
the cocaine was [Gamble]’s. The substance in the baggie and
the eye lens contact case tested positive for the presence of
cocaine.
On December 5th, 2016, [Gamble] entered an open guilty
plea to Count 1, Delivery of a Controlled Substance, as an
ungraded felony. On February 6th, 2017, [Gamble] was
sentenced to serve no less than one (1) year nor more than
three (3) years in a State Correctional Institution subject to
standard conditions. Subsequently, on February 13, 2017,
[Gamble] filed a Motion for Reconsideration of Sentence. This
Court denied [Gambel]’s Motion for Reconsideration of Sentence
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2
Miranda v. Ariz., 384 U.S. 436 (1966).
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on February 15, 2017. [Gamble] filed his Notice of Appeal and
Concise Statement of Matters Complained of on Appeal on
February 28, 2017 and March 20, 2017 respectively.
Trial Court Opinion, 3/23/2017, at 1-2 (footnote removed). The trial court
issued its Pa.R.A.P. 1925(a) opinion on March 22, 2017. On May 30, 2017,
Gamble’s counsel filed a statement of intent to file an Anders brief pursuant
to Rule 1925(c)(4).
Counsel has filed a petition to withdraw pursuant to the requirements
set forth in Anders and Santiago. Our Supreme Court in Santiago 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; and (3) state counsel’s
reasons for concluding the appeal is frivolous.
Santiago, 978 A.2d at 361. Once Counsel has satisfied the procedural
requirements of Santiago, this Court engages in an independent evaluation
of the record to determine if the claims on appeal are wholly frivolous.
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).
Counsel’s brief satisfies the necessary procedural requirements. Her
brief provides “a summary of the procedural history and facts, with citations
to the record.” Santiago, 978 A.2d at 361; Brief of Appellant, at 7-8. She
further provides a review of the record, and raises the issue she believes
arguably supports an appeal. Santiago, 987 A.2d at 360; Brief of
Appellant, at 11-13. Counsel’s brief also states her conclusion that the claim
is frivolous, and she provides her reasoning for this conclusion. Santiago,
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978 A.2d at 360; Brief of Appellant, at 11, 13. Lastly, counsel notified
Gamble of her request to withdraw and provided him with a copy of the brief
and a letter explaining his right to retain new counsel or proceed pro se as to
any issues he believes might have merit. Counsel having satisfied the
procedural requirements for withdrawal, we must now examine Gamble’s
claim to determine if the claim is frivolous. Anders, 386 U.S. at 744;
Rojas, 874 A.2d at 639.
Gamble raises the following issue for our review:
Whether the Court abused its discretion in sentencing Defendant
to no less than one to no more than three [years’ incarceration]
instead of [sentencing] within the mitigated guideline range.
Brief of Appellant, at 6.
Gamble’s only claim is the trial court abused its discretion in not
sentencing him without considering his mitigating factors to sentence him
within the mitigated guidelines. Gamble’s claim involves a discretionary
aspect of his sentence. “It is well-settled that appeals of discretionary
aspects of a sentence are not reviewable as a matter of right.”
Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006).
Before a challenge to the discretionary aspects of a sentence will be heard
on the merits, an appellant must set forth in his brief a separate and concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. Pa.R.A.P. 2119(f). An appeal of the
discretionary aspects of a sentence will only be granted when there is a
substantial question that the sentence imposed was not appropriate under
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the Sentencing Code. 42 Pa.C.S. § 9781. Historically, this Court has found a
substantial question exists for the purposes of section 9781 when the
Pa.R.A.P. 2119(f) statement reveals a plausible argument that procedures
followed by the sentencing court were either inconsistent with a specific
provision of the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process. Commonwealth v. Goggins, 748 A.2d
721, 726 (Pa. Super. 2000) (en banc) (citations omitted).
Gamble has included the necessary Rule 2119(f) statement in his brief.
In his statement, Gamble argues that there was a substantial question that
the trial court abused its discretion in not considering his mitigating factors
at the time of sentencing. Brief of Appellant, at 11. We have consistently
held that a contention that the trial court did not adequately consider
mitigating circumstances does not raise a substantial question sufficient to
justify appellant review of the merits of such a claim. Commonwealth v.
Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006). Therefore, we find that
Gamble has not presented a substantial question for our review, and review
of the merits of his challenge to the discretionary aspects of his sentence is
unwarranted.
In conclusion, we find counsel has satisfied all procedural requirements
for withdrawal, and Gamble’s sentencing claim is frivolous.
Judgment of Sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2017
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