Com. v. Williams, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DESHAUNDRE JAMAL WILLIAMS :
:
Appellant : No. 1181 WDA 2019
Appeal from the Judgment of Sentence Entered June 18, 2019
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000019-2019
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY GANTMAN, P.J.E.: FILED JANUARY 17, 2020
Appellant, Deshaundre Jamal Williams, appeals from the judgment of
sentence entered in the Erie County Court of Common Pleas, following his
guilty plea to one count each of robbery and firearms not to be carried without
a license.1 We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows. On
November 22, 2018, Appellant struck Victim in the back of the head with a
handgun and stole Victim’s cell phone. Appellant entered a guilty plea to the
charged offenses on April 3, 2019. With the benefit of a pre-sentence
investigation (“PSI”) report, the court sentenced Appellant on June 18, 2019,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3701(a)(1)(iv) and 6106(a)(1), respectively.
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to an aggregate thirty-one (31) to sixty-two (62) months’ incarceration. On
June 25, 2019, Appellant timely filed a post-sentence motion, which the court
denied on July 9, 2019. Appellant timely filed a notice of appeal on August 6,
2019. On August 7, 2019, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
In lieu of a concise statement, counsel filed a Rule 1925(c)(4) statement on
August 12, 2019, of intent to file an Anders brief. On August 23, 2019,
counsel (a public defender) filed in this Court a petition to withdraw as counsel
because different counsel from the public defender’s office had entered an
appearance on Appellant’s behalf. This Court granted counsel’s petition on
August 27, 2019. On October 7, 2019, new counsel filed in this Court an
application to withdraw and an Anders brief.
As a preliminary matter, counsel seeks to withdraw representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
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978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d
266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the 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
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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.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel has filed a petition to withdraw. The
petition states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed on appeal pro se to raise any additional issues Appellant
deems worthy of this Court’s attention. In the Anders brief, counsel provides
a summary of the facts and procedural history of the case. Counsel’s
argument refers to relevant law that might arguably support Appellant’s
issues. Counsel further states the reasons for counsel’s conclusion that the
appeal is wholly frivolous. Therefore, counsel has substantially complied with
the technical requirements of Anders and Santiago.
Appellant has not responded to the Anders brief pro se or with newly-
retained private counsel. Counsel raises the following issue on Appellant’s
behalf:
WHETHER…APPELLANT’S SENTENCE IS MANIFESTLY
EXCESSIVE, CLEARLY UNREASONABLE AND INCONSISTENT
WITH THE OBJECTIVES OF THE SENTENCING CODE?
(Anders Brief at 3).
Appellant argues his sentence of 31 to 62 months’ incarceration is
excessive and an abuse of the court’s discretion. Appellant contends the
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objectives of 42 Pa.C.S.A. § 9721(b) of the Sentencing Code could have been
achieved without the imposition of such a lengthy sentence. Appellant further
avers the court failed to consider certain mitigating factors, such as (1)
Appellant’s young age at the time of the offense; (2) Appellant’s lack of any
significant criminal history; (3) Appellant’s guilty plea and acceptance of
responsibility for his crimes; and (4) the remorse Appellant expressed at the
sentencing hearing. As presented, Appellant’s claims challenge the
discretionary aspects of his sentence. See Commonwealth v. Lutes, 793
A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing); Commonwealth
v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.
653, 676 A.2d 1195 (1996) (explaining claim that court did not consider
mitigating factors challenges discretionary aspects of sentencing).2
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005)
(emphasis in original). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as
to sentencing, so he can challenge the discretionary aspects of his sentence.
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issue:
[W]e 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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial question
as to the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the reasons
relied upon for allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks
omitted).
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“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)).
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. Bald allegations of excessiveness, however, do not raise a substantial
question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,
a substantial question will be found “only where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the Sentencing
Code or a particular fundamental norm underlying the sentencing process….”
Id. Nevertheless, “[a]n allegation that a sentencing court ‘failed to consider’
or ‘did not adequately consider’ certain factors does not raise a substantial
question that the sentence was inappropriate.” Cruz-Centeno, supra at 545(quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995),
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appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also
Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining
allegation that sentencing court failed to consider specific mitigating factor
generally does not raise substantial question; claim that sentencing court
ignored appellant’s rehabilitative needs failed to raise substantial question).
“Where [PSI] reports exist, we shall continue to presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18
(1988).
A [PSI] report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly
that [sentencing courts] are under no compulsion to employ
checklists or any extended or systematic definitions of their
punishment procedure. Having been fully informed by the
pre-sentence report, the sentencing court’s discretion
should not be disturbed. This is particularly true, we repeat,
in those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.
Id. at 102, 546 A.2d at 18. See also Tirado, supra (explaining if sentencing
court has benefit of PSI, law presumes court was aware of relevant information
regarding appellant’s character and weighed those considerations along with
mitigating factors).
Instantly, Appellant has properly preserved his sentencing issue for
appeal. Nevertheless, Appellant’s bald allegation of excessiveness does not
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warrant review. See Mouzon, supra. Likewise, Appellant’s claim the
sentencing court failed to consider certain mitigating factors does not pose a
substantial question. See Berry, supra; Cruz-Centeno, supra. Moreover,
the court had the benefit of a PSI report. Therefore, we can presume the
court was aware of the relevant information regarding mitigating
circumstances. See Devers, supra; see also Tirado, supra. Thus,
Appellant is not entitled to relief on these grounds. Following an independent
review of the record, we agree with counsel that the appeal is wholly frivolous.
See Dempster, supra. Accordingly, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/17/2020
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