Com. v. Tigue, R. ( 2023 )

J-S07005-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROY WADE TIGUE :
:
Appellant : No. 2103 EDA 2022
Appeal from the Judgment of Sentence Entered June 30, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000221-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROY W. TIGUE :
:
Appellant : No. 2104 EDA 2022
Appeal from the Judgment of Sentence Entered June 30, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000336-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROY WADE TIGUE :
:
Appellant : No. 2105 EDA 2022
Appeal from the Judgment of Sentence Entered June 30, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000345-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S07005-23
:
v. :
:
:
ROY W. TIGUE :
:
Appellant : No. 2106 EDA 2022
Appeal from the Judgment of Sentence Entered June 30, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000356-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 11, 2023
In these consolidated appeals, Appellant, Roy Wade Tigue, appeals from
the June 30, 2022 judgment of sentence of 13 to 54 months of incarceration
following his guilty pleas to Driving Under the Influence—Controlled
Substance, Resisting Arrest, and two counts of Receiving Stolen Property. In
addition, Appellant’s counsel, Ashley Zimmerman, Esquire, has filed a Motion
for Leave to Withdraw as Counsel and an Anders1 Brief. In the Anders Brief,
appellate counsel indicates that Appellant challenges the trial court’s
imposition of consecutive rather than concurrent sentences. After careful
review, we grant counsel’s Motion for Leave to Withdraw as Counsel and affirm
the Judgment of Sentence.
The relevant facts and procedural history are as follows. On May 14,
2019, the Commonwealth charged Appellant at Docket No. 221-2019 with
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1 Anders v. California, 386 U.S. 738 (1967).
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Driving Under the Influence—Controlled Substance (“DUI”) and Driving While
Operating Privileges Suspended/Revoked.2
While those charges were pending, on July 21, 2021, the
Commonwealth charged Appellant at Docket No. 336-2021 with the unrelated
crimes of Receiving Stolen Property (“RSP”), Criminal Mischief, Fleeing or
Attempting to Elude Police Officer, Driving While Operating Privilege
Suspended/Revoked, and Reckless Driving.3
On September 1, 2021, the Commonwealth charged Appellant at Docket
No. 345-2021 with the additional unrelated crimes of Resisting Arrest,
Disorderly Conduct, Scattering Rubbish, and Use or Possession of Drug
Paraphernalia.4 That same day, the Commonwealth also separately charged
Appellant at Docket No. 356-2021 with three counts of RSP.5
On June 24, 2022, Appellant entered an open guilty plea at Docket No.
221-2019 to DUI, at Docket No. 336-2021 to RSP, at Docket No. 345-2021 to
Resisting Arrest, and at Docket No. 356-2021 to RSP. The trial court deferred
sentencing pending preparation of a pre-sentence investigation (“PSI”) report.
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2 75 Pa.C.S. §§ 3802(d)(1)(ii) and 1543(a), respectively.
318 Pa.C.S. §§ 3925(a), 3304(a)(5); 75 Pa.C.S. §§ 3733(a), 1543(a), and
3736(a), respectively.
4 18 Pa.C.S. §§ 5104, 5503(a)(4), 6501(a)(1); and 35 P.S. § 780-113(a)(32),
respectively.
5 18 Pa.C.S § 3925(a).
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On June 30, 2022, the trial court sentenced Appellant to an aggregate
term of 13 to 54 months of incarceration. In particular, the court imposed a
term of 1 to 6 months for his DUI conviction at Docket No. 221-2019, 4 to 18
months for his RSP conviction at Docket No. 336-2021, 4 to 18 months for his
Resisting Arrest conviction at Docket No. 345-2021, and 4 to 12 months for
his RSP conviction at Docket No. 356-2021.6
On July 11, 2022, Appellant filed a motion for reconsideration of
sentence in which he requested that the court reduce his high-end standard
range sentences to “a sentence that falls on the lower end of the standard
range, with consideration for concurrent sentences.” Motion to Reconsider
Sentence, 7/11/22, at ¶ 10. On July 25, 2022, the trial court denied
Appellant’s motion.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
In the Anders Brief, appellate counsel asks us to consider whether the
sentencing court abused its sentencing discretion by ordering Appellant’s
sentences to run consecutively.7 Anders Brief at 18.
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6 The court ordered these sentences to run consecutively to each other and to
an unrelated term of incarceration imposed following Appellant’s jury
conviction of Theft and Defiant Trespass, and his summary conviction of
Driving While Operating Privilege Suspended/Revoked. Appellant’s appeal
from his judgment of sentence of 13 to 48 months of incarceration for those
convictions is docketed at No. 1909 EDA 2022.
7 Appellant did not file a response to counsel’s Anders Brief or to her motion
to withdraw.
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As a preliminary matter, we address appellate counsel’s request to
withdraw as counsel. “When presented with an Anders Brief, this Court may
not review the merits of the underlying issues without first passing on the
request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.
Super. 2010). In order for counsel to withdraw from an appeal pursuant to
Anders, our Supreme Court has determined that counsel must meet the
following requirements:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that she sent Appellant a copy of the
Anders Brief and Motion for Leave to Withdraw as Counsel, as well as a letter
explaining to Appellant that he has the right to retain new counsel, proceed
pro se, and to raise any additional points. See Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we will address
the substantive issue raised in the Anders Brief. Subsequently, we must
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“make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.” Santiago,
978 A.2d at 355 n.5 (citation omitted). See also Commonwealth v.
Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders
requires the reviewing court to “review ‘the case’ as presented in the entire
record with consideration first of issues raised by counsel”).
In the Anders Brief, counsel reiterates Appellant’s challenge to the
consecutive nature of the sentences that Appellant raised in his motion for
reconsideration of sentence. Anders Brief at 19-20. A challenge to the
discretionary aspects of sentencing is not automatically reviewable as a matter
of right. Commonwealth v. Hunter, 768 A.2d 1136, 1144 (Pa. Super.
2001). Prior to reaching the merits of a discretionary sentencing issue:
We 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.[]. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citation
omitted).
In the instant case, Appellant has satisfied the first three requirements
by filing a timely notice of appeal, properly preserving the issue in a post-
sentence motion to modify his sentence, and by including a Rule 2119(f)
Statement in the Brief to this Court.
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As to whether Appellant has presented a substantial question, we note:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation marks omitted). It is well-settled that a bare challenge that the
trial court erred in imposing consecutive rather than concurrent sentences
does not raise a substantial question. Commonwealth v. Zirkle, 107 A.3d
127, 133 (Pa. Super. 2014); Moury, 992 A.2d at 171 (“[W]here a sentence
is within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.”). “The imposition of
consecutive, rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment.” Moury, 992 A.2d at 171-72.
Here, because the court sentenced Appellant within the standard range
of the sentencing guidelines, we cannot conclude the aggregate sentence is
unduly harsh. Moreover, we note that the trial court had the benefit of a PSI
report; thus, we assume that it “was aware of relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.” Id. at 171 (citations omitted). We, therefore,
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agree with counsel that Appellant’s sentencing challenge does not present a
substantial question and is frivolous.
After conducting our independent review as required pursuant to
Yorgey, supra, we discern no non-frivolous issues to be raised on appeal.
Accordingly, we grant counsel’s Motion for Leave to Withdraw as Counsel and
affirm the Judgment of Sentence.
Judgment of Sentence affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2023
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