Com. v. Rang, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
CHASE M. RANG :
:
Appellant : No. 67 MDA 2019
Appeal from the Judgment of Sentence Entered April 18, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001229-2006
CP-54-CR-0001818-2009
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY BOWES, J.: FILED: MARCH 2, 2020
Chase M. Rang appeals from the judgment of sentence of one to two
years of incarceration followed by three years of probation that was imposed
following a probation revocation hearing and a successful motion for
reconsideration. Appellant’s counsel, Robert M. Reedy, Esquire, has filed a
petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We grant counsel’s petition to withdraw and affirm the judgment of sentence.
Appellant pled guilty to one count each of criminal trespass and criminal
conspiracy, along with five counts each of theft by unlawful taking and
receiving stolen property, and was sentenced to a term of imprisonment
followed by probation supervision. On February 20, 2018, Appellant
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appeared for a probation revocation hearing.1 At the conclusion of the
hearing, Appellant was resentenced to two to four years of incarceration
followed by one year of probation. Appellant, through counsel, filed a motion
to modify sentence, which was granted. On April 18, 2018, the court modified
Appellant’s sentence to one to two years of incarceration followed by three
years of probation.
A pro se “post-sentence motion appeal,” and request for a Grazier2
hearing followed. On May 24, 2018, after a hearing, the trial court granted
Appellant’s request to proceed pro se, allowed counsel to withdraw, instructed
the clerk of courts to insure that Appellant’s motion was correctly docketed as
a notice of appeal, and ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement. In its June 4, 2018 order, the trial court also noted that Appellant
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1Appellant stipulated to the violations alleged by the probation department
which included:
use of illegal controlled substances and fighting with probation
officers. State Parole/Probation Officer Ronald Thompson testified
to [Appellant’s] history of fighting with officers, use of illegal
controlled substances and failure to complete drug and alcohol
treatment and community service despite given opportunities to
do so. According to Officer Thompson, on the day of the incident
leading to the most recent revocation proceedings [Appellant]
admitted using heroin and marijuana and tested positive for such
use. Further, [Appellant] had resisted arrest. In addition,
[Appellant] also possessed illegal drugs that day which Officer
Thompson believed were heroin and methamphetamine.
Trial Court Opinion, 7/6/18, at 2 n. 1.
2 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
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had included the case caption for CP-54-CR-1818-20093 on his notice of
appeal, but had clarified that he only intended to challenge his conviction at
the 2006 case. Appellant filed a concise statement of errors complained of on
appeal, and on July 6, 2018, the trial court filed its opinion.
On September 17, 2018, we quashed Appellant’s direct appeal because
his notice of appeal was not timely filed. Appellant filed a pro se PCRA petition
seeking the reinstatement of his direct appeal rights, which was granted on
November 30, 2018.
On January 2, 2019, Appellant filed a pro se notice of appeal, again
including CP-54-CR-1818-2009 in his case caption. The trial court ordered
Appellant to file a new Pa.R.A.P. 1925(b) concise statement. In his statement,
Appellant again referenced the sentence imposed at the 2009 case, but only
to the extent necessary to challenge how his sentence imposed at this case
had been aggregated with the sentence previously imposed at the 2009 case.
He did not contest any aspect of the case listed at CP-54-CR-1818-2009.
On February 22, 2019, this Court issued a rule to show cause why the
appeal should not be quashed pursuant to Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), since Appellant filed one notice of appeal that included
two docket numbers. Appellant did not file a response to our rule to show
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3 The 2009 case was heard before a different judge and involved separate
statutory sexual assault and related charges. On May 10, 2010, that trial
court sentenced Appellant to serve two to four years of incarceration
consecutive to the sentence of incarceration Appellant was already serving at
the instant case. As a result of the consecutive sentence imposed, the
department of corrections aggregated Appellant’s two sentences.
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cause. On March 13, 2019, the trial court filed its opinion, in which it
acknowledged that Appellant had included CP-54-CR-1818-2009 and that it
was not the presiding judge in that case.
On May 24, 2019, Appellant filed an application requesting the
appointment of counsel to represent him on appeal. On June 11, 2019, the
trial court acceded to Appellant’s request and appointed aforementioned
counsel. In this Court, in lieu of an advocate’s brief, counsel filed an Anders
brief and a petition to withdraw. In the brief, counsel concluded that the
Walker decision required this Court to quash Appellant’s appeal because he
listed two docket numbers on his sole notice of appeal. Relying on
Commonwealth v. Sayles, 2019 WL 2353469 (Pa.Super. June 4,
2019)(unpublished memorandum at *3), we disagreed with Appellant’s
conclusion that Walker necessitated quashal, since Appellant’s contentions
concerned only the sentence imposed at CP-54-CR-1229-2006. Accordingly,
we denied counsel’s petition to withdraw and remanded with instructions for
counsel to either file an advocate’s brief or another Anders brief and petition
seeking to withdraw.
On January 14, 2020, counsel filed a second Anders brief.4 This filing
triggers specific requirements.
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
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4 On January 9, 2020, Appellant’s counsel filed an application for an extension
of time to file the appropriate brief. We grant Appellant’s motion and, as a
result, consider the Anders brief that he filed.
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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.
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.Super. 2007). Our
Supreme Court has also clarified portions of the Anders procedure:
[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 statues on point that have led
to the conclusion that the appeal is frivolous.
Santiago, supra at 361. If counsel has met these obligations, “it then
becomes the responsibility of the reviewing court to make a full examination
of the proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Id. at 354 n.5.
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. Counsel set forth the case history,
referred to two issues that arguably support the appeal, stated his conclusion
that the appeal is frivolous, and cited to controlling case law which supports
that conclusion. See Anders brief at 5-21. Additionally, counsel gave
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Appellant proper notice of his right to immediately proceed pro se or retain
another attorney.5 See Santiago, supra; Anders brief exhibit E, letter to
Appellant, 1/14/2020. Accordingly, we proceed to an examination of the
issues raised to discern if they are frivolous. Commonwealth v. Dempster,
187 A.3d 266, 273 (Pa.Super. 2018) (en banc).
Counsel identified two issues that arguably support this appeal: (1)
Appellant’s sentence is illegal, and (2) counsel was ineffective failing to file a
direct appeal. Anders brief at 5.6
First, we consider Appellant’s allegation that his sentence is illegal
because it exceeded the maximum sentence allowed by law. We do so mindful
that our standard of review regarding an issue relating to the legality of a
sentence is de novo, and our scope of review is plenary. Commonwealth v.
McKown, 79 A.3d 678, 691 (Pa.Super. 2013).
The revocation of probation places a defendant in the same position that
he was in at the time of his original sentencing. See Commonwealth v.
Wallace, 870 A.2d 838, 842-43 (Pa. 2005); see also 42 Pa.C.S. § 9771(b)
(“Upon revocation the sentencing alternatives available to the court shall be
the same as were available at the time of initial sentencing.”). While a
resentencing court in a probation revocation proceeding does not need to
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5 Appellant did not file a response to counsel’s petition.
6While phrased as three separate claims in his statement of issues, counsel
has actually only raised the two distinct issues detailed above.
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consult the sentencing guidelines, the sentence imposed must not exceed the
maximum term for which the defendant could be confined. Commonwealth
v. Crump, 995 A.2d 1280, 1285 (Pa.Super. 2010). This means that where
the sentencing court gives a new split sentence, the period of incarceration
combined with the term of probation cannot exceed the statutory maximum.
See 42 Pa.C.S. § 9754.
In this case, Appellant received a sentence of one to two years of
incarceration followed by three years of probation for his criminal trespass
conviction, a second-degree felony. The maximum sentence allowed by law
for a second-degree felony is ten years of imprisonment and a $25,000.00
fine. 18 Pa.C.S. § 1103. Therefore, Appellant’s sentence does not exceed the
statutory maximum, and his claim to the contrary is frivolous.
Second, Appellant wishes to attack his sentencing counsel’s failure to
file a requested direct appeal. However, Appellant has already successfully
litigated this issue through a PCRA petition, which resulted in the
reinstatement of his direct appeal rights nunc pro tunc, along with our receipt
and review of the Anders brief that is currently before us. Thus, the issue of
counsel’s failure to file a requested direct appeal is moot. Also, to the extent
Appellant wishes to challenge current counsel’s decision to file an Anders
brief, this is not the appropriate venue to do so. See Commonwealth v.
Holmes, 79 A.3d 562, 598 (Pa. 2013) (holding that, absent certain specified
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circumstances, claims of ineffective assistance of counsel should be deferred
to PCRA review). Accordingly, Appellant’s second claim is also devoid of merit.
Further, we have conducted a “full examination of the proceedings” and
determined that “the appeal is in fact wholly frivolous.”7 Commonwealth v.
Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since our review did not
disclose any other arguably meritorious claims, we grant counsel’s petition to
withdraw and affirm the judgment of sentence. Dempster, supra at 273.
Petition of Robert M. Reedy, Esquire, to withdraw as counsel is granted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:03/02/2020
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7 We undertook our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on
those subjects are apparent from the record before us.
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