Com. v. Ball, F. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FRANK BALL
Appellant No. 810 MDA 2019
Appeal from the Judgment of Sentence entered April 16, 201
In the Court of Common Pleas of Lackawanna County
Criminal Division at No: CP-35-CR-0000017-2016
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2020
Appellant, Frank Ball, appeals from the judgment of sentence imposed
on April 16, 2019 in the Court of Common Pleas of Lackawanna County
following revocation of his parole. Appellant claims the trial court abused its
discretion by imposing a sentence that was inappropriately harsh and
excessive. Appellant’s counsel has filed a petition to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967), and a brief in support. Upon
review, we grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
From our review of the record, including the trial court’s Rule 1925(a)
opinion, we discern the following factual and procedural background.
Following a July 17, 2015 incident, Appellant was charged with making
terroristic threats, stalking, and harassment on docket 16 CR 17. On
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December 2, 2015, he threatened his wife, saying he would blow his brains
out and not go alone. She obtained a protection from abuse order against
him.
On May 10, 2016, Appellant entered a guilty plea at 16 CR 17 to the
terroristic threats charge after signing a guilty plea colloquy that indicated,
inter alia, his awareness of the maximum penalty of five years’ imprisonment.
The court also conducted an on-the-record inquiry to confirm that Appellant
entered his guilty plea knowingly, voluntarily, and intelligently. The court
accepted the guilty plea and deferred sentencing pending completion of a pre-
sentence investigative report (“PSI”). On May 24, 2016, the court imposed a
five-year restrictive intermediate punishment (“RIP”) sentence with credit for
time served and placed Appellant on three months’ house arrest. Appellant,
who is a veteran, was ordered to continue treatment with the VA and the Vet
Center. The trial court admonished Appellant that he would face state
incarceration in the event of future violations. Appellant acknowledged his
understanding that he faced potential state incarceration.
Approximately three months later, while under supervision, Appellant
was charged with two counts of terroristic threats as well as harassment and
stalking, all stemming from posts on a Facebook page using an alias. He
entered a guilty plea at 16 CR 2118 to one count of terroristic threats and one
count of stalking. Again, he executed a guilty plea colloquy acknowledging
his awareness of the maximum penalty of ten years’ confinement. The court
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again conducted an inquiry on the record to establish that Appellant’s guilty
plea was entered knowingly, voluntarily, and intelligently. A violation petition
was filed regarding the 16 CR 17 charges and Appellant pled guilty to the
Gagnon1 violation. Sentencing was deferred pending a PSI and, on June 28,
2017, the trial court advised Appellant he was giving him one more chance.
Appellant’s original five-year sentence on 16 CR 17 was revoked and he was
resentenced to another five-year intermediate punishment (“IP”) sentence
with the first six months on house arrest. At 16 CR 2118, the court imposed
two years’ probation on each charge.
Approximately one year later, Appellant was charged at 18 CR 2674 with
one count each of terroristic threats and stalking, this time against a former
co-worker. On December 19, 2018, Appellant entered a guilty plea to one
count of terroristic threats. Appellant again executed a written guilty plea
colloquy indicating his awareness of a potential five-year confinement and the
court again conducted an on-the-record inquiry to establish that the plea was
entered knowingly, voluntarily, and intelligently. The court accepted the plea
and deferred sentencing pending a psychiatric evaluation and a PSI.
The court subsequently revoked Appellant’s probationary sentence
under 16 CR 17 and resentenced Appellant to 12 to 24 months in a state
correctional institution. Under 16 CR 2118, the court revoked the earlier
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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sentences and resentenced Appellant to 12 to 24 months in a state
correctional institution on Count I and nine to 36 months in a state correctional
institution on Count II, consecutive to Count I and consecutive to 16 CR 17.
Under 18 CR 2674, the court imposed a sentence of nine to 24 months in a
state correctional institution with two years of state-supervised probation
consecutive to 16 CR 17. The aggregate sentence was 42 to 108 months’
state incarceration with two years’ state-supervised probation.
Appellant filed a motion for reconsideration, which the trial court denied.
This timely appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925. Counsel subsequently filed an Anders brief presenting one
issue:
A. Whether the sentence imposed was inappropriately harsh and
excessive and an abuse of discretion.
Anders Brief at 4.
Before addressing the merits of Appellant’s issue, we must first address
counsel’s request to withdraw. Commonwealth v. Washington, 63 A.3d
797, 800 (Pa. Super. 2013); see also Commonwealth v. Rojas, 874 A.2d
638, 639 (Pa. Super. 2005) (“faced with a purported Anders brief, this Court
may not review the merits of the underlying issues without first passing on
the request to withdraw”) (citation omitted). To withdraw, 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 [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
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or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). In addition, counsel must attach to the petition to withdraw a copy
of the letter sent to the client advising him of his rights. Commonwealth v.
Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005). Our review confirms that
counsel has complied with the procedural requirements of Anders, as outlined
in Cartrette and Millisock.
We also review counsel’s Anders brief for compliance with the
requirements set forth in Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). In Santiago, our Supreme Court explained:
[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.
Id. at 361. Based on our review, we conclude that counsel’s Anders brief
complies with Santiago. Therefore, we proceed to examine the issue raised
in the Anders brief and to conduct “a full examination of all the proceedings,
to decide whether the case is wholly frivolous.” Commonwealth v. Yorgey,
188 A.3d 1190, 1196 (Pa. Super. 2018) (en banc).
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Counsel’s Anders brief raises the issue of whether the trial court abused
its discretion by imposing a sentence Appellant contends is harsh and
excessive. As such, Appellant presents a challenge to the discretionary
aspects of sentence. Counsel acknowledges that an appellant must
demonstrate the existence of a substantial question as to whether the
sentence was appropriate. Anders Brief at 9.
Counsel has included the requisite Rule 2119(f) statement in support of
her contention that Appellant has presented a substantial question. She
concedes that “in light of [Appellant’s] repeated similar criminal behavior, his
refusal to participate in drug/alcohol rehabilitation, his refusal to acknowledge
responsibility for his behavior, and the trial court[’s] repeated breaks given to
him,” there may be no substantial question warranting a review of the
discretionary aspects of his sentence. Id. Counsel nevertheless asks us to
review the sentence. Id. We decline to do so.
As this Court explained in Commonwealth v. Fisher, 47 A.3d 155 (Pa.
Super. 2012):
A substantial question requires a demonstration that “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.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
2005). This Court’s inquiry “must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the
merits.” Id. Whether a substantial question has been raised is
determined on a case-by-case basis; the fact that a sentence is
within the statutory limits does not mean a substantial question
cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
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(Pa. Super. 2003). However, a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying
this Court’s review of the merits of the underlying claim. Id.Id. at 159. Here, Appellant has not demonstrated that the sentence violates
“either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular norm underlying the sentencing process.” Id.(quoting Tirado, 870 A.2d at 365). Rather, Appellant simply suggests the
sentence was harsh and excessive, noting Appellant’s personal dissatisfaction
with the sentence and his demand that an appeal be filed. Anders Brief at
11. Further, the trial court had the benefit of PSIs and a psychological
evaluation and set forth the reasons for the sentences on the record. See
Notes of Testimony, 4/16/19, at 2-9.
Appellant has failed to present a substantial question for our review.
Therefore, we shall not review his sentencing claim. Id.We have conducted our independent examination of the proceedings, as
required by Santiago and Yorgey. Based on that examination, we agree that
this appeal is wholly frivolous. Therefore, we grant counsel’s petition to
withdraw and affirm Appellant’s judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/23/2020
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