Com. v. Shkuratoff, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AARON JACOB SHKURATOFF, :
:
Appellant : No. 1436 WDA 2019
Appeal from the Judgment of Sentence Entered August 20, 2019
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000046-2019
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 27, 2020
Aaron Jacob Shkuratoff (“Shkuratoff”) appeals from the judgment of
sentence entered following his conviction of retail theft.1 Counsel for
Shkuratoff has filed a Petition to Withdraw from representation 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 Shkuratoff’s judgment of sentence.
On August 20, 2019, Shkuratoff pled guilty to retail theft, a first-degree
misdemeanor. On August 20, 2019, the trial court sentenced Shkuratoff to
serve four to twenty-four months, less one day, in the Crawford County
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1 See 18 Pa.C.S.A. § 3929(a)(1).
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Correctional Facility, plus a fine and costs.2 The trial court awarded two days
of credit for time served. Shkuratoff did not file a post-sentence motion.
Shkuratoff timely filed the instant appeal, after which counsel filed a
Statement of her intention to file an Anders brief in lieu of filing a concise
statement.
In the Anders Brief, Shkuratoff presents one claim for our review:
“Whether [Shkuratoff’s] sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the Sentencing Code?”
Anders Brief at 3.
Before this Court may consider the merits of the issue raised, we must
address counsel’s Petition to Withdraw from representation. See
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (stating
that, “[w]hen presented with an Anders brief, this Court may
not review the merits of the underlying issues without first passing on the
request to withdraw.”). According to Santiago, in the Anders brief that
accompanies 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
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2 On June 7, 2019, Shkuratoff appeared for his scheduled sentencing hearing.
At that time, Shkuratoff expressed his desire to withdraw his guilty plea. As
a result, the trial court entered an Order directing that the sentencing date be
rescheduled, and that Shkuratoff file any motion to withdraw his plea within
30 days. Trial Court Order, 6/10/19. Shkuratoff did not file a motion to
withdraw his plea. At the August 20, 2019, sentencing hearing, Shkuratoff
indicated his desire to proceed with sentencing. N.T., 8/20/19, at 2.
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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.
Santiago, 978 A.2d at 361.
In her Petition to Withdraw, counsel states that she has reviewed the
record and concluded that the appeal is frivolous. Additionally, counsel
notified Shkuratoff that she is seeking permission to withdraw, furnished
Shkuratoff with copies of the Petition to Withdraw and Anders Brief, and
advised Shkuratoff of his right to retain new counsel or proceed pro se, to
raise any points he believes worthy of this Court’s attention. See id.
Accordingly, counsel has satisfied the procedural requirements of Anders.
We next determine whether counsel’s Anders Brief meets the
substantive dictates of Santiago. Our review of the Anders Brief discloses
that counsel has provided the facts and procedural history of the case.
Additionally, counsel refers to one substantive claim that could arguably
support the appeal and states her conclusion that the issue is wholly frivolous.
Because appellate counsel has satisfied the above requirements, we will
address the substantive issue raised in the Anders Brief. Additionally, we
must conduct “a simple review of the record to ascertain if there appear on its
face to be arguably meritorious issues that counsel, intentionally or not,
missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272
(Pa. Super. 2018) (en banc); see also Commonwealth v. Yorgey, 188 A.3d
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1190, 1197 (Pa. Super. 2018) (en banc) (noting that Anders requires the
reviewing court to “review ‘the case’ as presented in the entire record with
consideration first of issues raised by counsel.”).
Shkuratoff claims that the trial court abused its discretion at sentencing.
Anders Brief at 6. Shkuratoff asserts that the sentence is manifestly
excessive, as he had “admitted his wrongdoing and even paid for other items
in his possession at the time [that] the offense occurred.” Id. In addition,
Shkuratoff points out his admission at sentencing that he suffers from a long-
standing drug abuse problem, and that he was under the influence at the time
that he committed the offense. Id. Further, Skuratoff’s counsel indicated
that “the majority of [Shkuratoff’s] significant prior criminal record stemmed
from 2005 and 2006[,] and a burglary conviction as a juvenile.” Id. at 7.
Shkuratoff directs our attention to other mitigating evidence presented at the
sentencing hearing, i.e., that he had obtained his electrician’s certificate and
was in the process of getting a career position, and that he is the main
breadwinner of his family. Id.
“A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
167 A.3d 793, 815 (Pa. Super. 2017). Prior to reaching the merits of a
discretionary sentencing 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
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[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).
Grays, 167 A.3d at 815-16 (citation omitted).
Our review of the record discloses that, although Shkuratoff timely filed
his Notice of Appeal, he failed to preserve his sentencing challenge at
sentencing or in a motion to reconsider and modify the sentence.
See Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.
2008) (stating that “[a] challenge to an alleged excessive sentence is a
challenge to the discretionary aspects of a sentence. Issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived.”) (citations omitted). Because Shkuratoff did not preserve this issue
for appellate review, the claim is waived. See id. We therefore agree with
counsel that the claim is without merit and frivolous.3 See Commonwealth
v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding that when an
issue has been waived, “pursuing th[e] matter on direct appeal is frivolous”).
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3Even if Shkuratoff had preserved this claim, we would agree with counsel’s
assessment that the claim lacks merit and is frivolous. The trial court
sentenced Shkuratoff in the standard range of the sentencing guidelines. In
addition, the record reflects that the trial court considered the mitigating
evidence presented by Shkuratoff at the sentencing hearing. See N.T.,
8/20/19, at 7-8 (wherein Shkuratoff’s counsel presented mitigating evidence).
Thus, we would conclude that the sentence is not excessive, and we discern
no abuse of discretion by the trial court.
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Finally, we have conducted “a simple review of the record” and have
found no “arguably meritorious issues that counsel, intentionally or not,
missed or misstated.” Dempster, 187 A.3d at 272. Accordingly, we grant
counsel’s Petition to Withdraw, and affirm the judgment of sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2020
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