Com. v. Jorge, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEFFREY JORGE :
:
Appellant : No. 1260 MDA 2020
Appeal from the Judgment of Sentence Entered August 7, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000742-2018
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 13, 2021
Appellant Jeffrey Jorge appeals the judgment of sentence entered by
the Court of Common Pleas of Luzerne County after he pleaded guilty to
possession of a firearm with an altered manufacturer's number and persons
not to possess a firearm. Counsel has filed a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967)
arguing that the present appeal is wholly frivolous because it challenges the
trial court’s discretion in imposing a mid-level, rather than a low-end, standard
range guideline sentence. We grant counsel’s petition to withdraw and affirm
judgment of sentence.
On April 8, 2019, Appellant entered his guilty plea to the aforementioned
offenses. Sentencing occurred on August 7, 2019, and the trial court imposed
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* Former Justice specially assigned to the Superior Court.
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a sentence of 48 to 96 months’ incarceration on both charges. These
sentences were to be served concurrently and resided at the middle of the
standard range of the sentencing guidelines. At the conclusion of the hearing,
the court permitted plea counsel to withdraw.
On August 15, 2019, Appellant filed a pro se appeal in the
Commonwealth Court, which subsequently transferred the appeal to this
Court. On September 13, 2019, the trial court directed Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant did not respond to the trial court's Rule 1925(b) order.
On November 26, 2019, this Court filed an order directing the trial court
to determine the status of Appellant's counsel of record. On December 20,
2019, the trial court held a hearing at which it determined Appellant was
eligible for counsel and appointed Matthew P. Kelly, Esq. (hereinafter
“counsel”) to represent Appellant. Counsel filed a petition to withdraw and an
Anders brief, after he concluded that this appeal was frivolous.
Specifically, counsel claimed all of Appellant's potential issues on appeal
were waived due to Appellant's failure to file a post-sentence motion or to
comply with the trial court's Rule 1925(b) order. Our independent review of
the record, however, revealed that Appellant had no legal representation after
sentencing and during the period in which he was required to preserve his
post-sentence and appellate rights. Accordingly, we denied counsel's petition
to withdraw and remanded the case and the record to the trial court with
instructions to reinstate Appellant's post-sentence and appeal rights nunc pro
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tunc, to give current counsel an opportunity to file a post-sentence motion on
Appellant's behalf for the trial court's determination.
On remand, appointed counsel filed a June 4, 2020 motion to modify
sentence on behalf of Appellant. This motion requested a sentence at the
lower end of the standard range of the Pennsylvania Sentencing Guidelines.
The trial court denied the motion on September 15, 2020. This timely notice
of appeal followed.1
On October 6, 2020, the trial court filed an order requiring Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied with this order on October 16, 2020,
by filing a concise statement in which he alleged the court abused its
sentencing discretion by failing to sentence Appellant at the lower end of the
standard range guidelines. The trial court filed a responsive Rule 1925(a)
opinion recommending that this Court deny relief and affirm judgment of
sentence because Appellant’s sentence of 48 to 96 months’ incarceration,
which resides at the center of the 42 to 54 month standard range of the
sentencing guidelines given Appellant’s prior record score, is neither
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1 The notice of appeal states that the appeal is “from the Judgment Order
issued on September 15, 2020.” While counsel for Appellant purports to
appeal from the September 15, 2020 order denying the post-sentence motion,
the appeal properly lies from the judgment of sentence imposed on August 7,
2019. Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super.
2001) (en banc) (correcting the caption when appellant misstates where the
appeal lies), appeal denied, 800 A.2d 932 (Pa. 2002).
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unreasonable nor excessive. Trial Court’s Pa.R.A.P. 1925(a) Opinion,
11/20/20, at 4.
On January 12, 2021, counsel filed with this Court a petition to withdraw
as counsel and an accompanying brief pursuant to Anders, Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981), and their progeny.2 Specifically,
the Anders Brief challenges the discretionary aspects of Appellant's sentence.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel's
request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal
under Anders, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(1) provide a summary of the procedural history and facts, with
citations to the record;
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2 Initially, counsel failed to provide this Court with a copy of the letter advising
Appellant of his rights pursuant to Commonwealth v. Millisock, 873 A.2d
748 (Pa. Super. 2005). By order of January 27, 2021, this Court directed
counsel to notify Appellant with a proper statement of his rights and to file a
copy of the notification with this Court. Counsel complied on that same day.
The withdrawal petition contains incorrect information regarding Appellant’s
rights, improperly framing Appellant's ability to respond to the withdrawal
petition and Anders brief as contingent on the granting of the petition. See
Petition to Withdraw, 1/12/21, at ¶ 4. However, counsel’s subsequent
Millisock letter to Appellant contains the correct information. See Millisock
Letter, 1/27/21, at 1. The withdrawal petition does not contain proof of
service on Appellant, but, again, the Millisock letter explains that the petition
was enclosed with the letter and provided proper proof of notification. As
noted, infra, Counsel’s Anders brief has also complied with the requirements
set forth in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and
contains proof of service on Appellant.
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(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.
Santiago, 978 A.2d at 361.
In addition, counsel must provide a copy of the Anders brief to his
client. “Attending the brief must be a letter that advises the client of his right
to: ‘(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;
or (3) raise any points that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel in the Anders brief.’”
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (quoting
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007)).
Counsel has complied with the requirements of Anders as articulated in
Santiago and supplied Appellant with a copy of his Anders Brief and a letter
explaining the rights enumerated in Nischan. Accordingly, counsel has
complied with the technical requirements for withdrawal.
Having addressed counsel's technical compliance with Anders, we will
address the substantive issue raised by counsel. In addition, 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
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misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.
2018) (en banc).
Appellant challenges the discretionary aspects of his sentence, asserting
the court abused its discretion by not sentencing him to the lower end of the
standard range of the sentencing guidelines. See Anders Br. at 3. A
challenge to discretionary aspects of a sentence is not reviewable as a matter
of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).
Rather, an appellant challenging the sentencing court's discretion must invoke
this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly
preserving the issue at sentencing or in a post-sentence motion; (3)
complying with Pa.R.A.P. 2119(f), which requires a separate section of the
brief setting forth a concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of a sentence; and (4)
presenting a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.;
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
Appellant timely appealed. Further, Appellant sufficiently preserved his
claim in a post-sentence motion, which requested a more lenient sentence.
However, counsel has not included a rule-compliant Pa.R.A.P. 2119(f)
statement, as the statement consists of but one sentence claiming baldly that
the court abused its discretion by failing to sentence Appellant at the lower
end of the guideline range. Nevertheless, we have held that in an Anders
brief, the lack of a complete Rule 2119(f) statement is not an impediment to
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this Court’s review of the discretionary sentencing claim. See
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (noting
where counsel has filed Anders brief, this Court has reviewed discretionary
sentencing claim, even absent separate Pa.R.A.P. 2119(f) statement). Thus,
we may proceed to address whether Appellant presents a substantial question.
Whether a substantial question has been raised is determined on a case-
by-case basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010). “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 [that] underlie the sentencing process.” Id.(citation and quotation omitted).
We note that “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Moury, 992 A.2d at 171 (citation omitted). Moreover,
because Appellant has not articulated what provision of the Sentencing Code
or what fundamental norm was violated by imposing his sentences in the
middle of the standard guideline range and running them concurrently, we
find he cannot overcome the presumptive appropriateness of his sentence.
Thus, we conclude Appellant fails to raise a substantial question meriting our
review.
Finally, our independent review of the record reveals no arguably
meritorious issues warranting further consideration of this appeal.
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Accordingly, we grant counsel's Application to Withdraw as Counsel and affirm
Appellant's Judgment of Sentence.
Petition to Withdraw as Counsel granted; Judgment of Sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/13/2021
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