Com. v. Spangenberg, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRIAN WILLIAM SPANGENBERG :
:
Appellant : No. 1130 MDA 2019
Appeal from the Judgment of Sentence Entered April 23, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000219-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 14, 2021
Brian William Spangenberg (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to one count of burglary and three
counts of criminal trespass.1 Additionally, Appellant’s counsel (Counsel),
seeks to withdraw from representation pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009). Upon review, we grant Counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
The trial court summarized the factual and procedural history as follows:
While on parole under 10 CR 1590, the Appellant burglarized
several VFW posts between November 26, 2017 and December 1,
2017. Specifically, on November 26, 2017, the security alarm at
VFW Post 5207 in Covington Township, Pennsylvania triggered.
Video surveillance captured a male, later identified as Appellant,
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1 18 Pa.C.S.A. §§ 3502(a)(4) and 3503(a)(1)(iii).
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attempting to enter the front door of the property. On November
28, 2017, the security alarm triggered, and video surveillance
captured a distinct yellow Monte Carlo with a black front bumper
parked across the street. Video surveillance also captured the
Appellant forcibly entering the property at nighttime. A day later,
the security alarm triggered again. Similarly, video surveillance
captured the Appellant inside the property opening and removing
a safe’s contents. Also, on November 29, 2017, the security alarm
at VFW Post 601 in Mayfield, Pennsylvania triggered. Video
surveillance captured the Appellant inside the property, filling his
backpack with cash boxes worth $3,300.00. Likewise, during the
burglary, video surveillance captured a distinct yellow Chevrolet
Monte Carlo parked adjacent.
On December 19, 2017, police executed a search warrant of
Appellant’s vehicle and residence. The search warrant revealed a
yellow pry bar with damage and chipped paint related to the VFW
burglaries. Additionally, cell-phone records placed the Appellant
in the vicinity of both VFW locations at the time of each burglary.
Accordingly, the Commonwealth charged the Appellant with
sixteen (16) theft-related offenses[.]
On December 10, 2018, Appellant entered a negotiated
guilty plea to one count of Burglary, 18 Pa.C.S.A. § 3502(a)(4),
and three (3) counts of Criminal Trespass, 18 Pa.C.S.A. §
3503(a)(1)(iii). Specifically, in paragraph 13 of the written
colloquy, the Appellant requested a sentence of thirty-six (36) to
seventy-two (72) months on the burglary with probationary
sentences on each criminal trespass count. Upon completion of a
pre-sentence investigation, as well as a thorough review and
consideration of the Sentencing Guidelines, including the nature
and character of the Appellant, this [c]ourt sentenced the
Appellant in accordance with the negotiated plea agreement as
follows: Burglary, [] thirty-six (36) to seventy-two (72) months;
Count IV: Criminal Trespass, [] to two (2) years’ state supervised
probation; Count V: Criminal Trespass, [] to three (3) years’ state
supervised probation; and Count VI: Criminal Trespass, [] to two
(2) years’ state supervised probation. This [c]ourt imposed all
sentences consecutively. Therefore, the Appellant received an
aggregate sentence of thirty-six (36) to seventy-two (72) months
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with seven (7) years of state-supervised probation.[2] . . . On
May 1, 2019, the Appellant filed a Motion for Reconsideration of
Sentence [challenging, inter alia], the discretionary aspects of the
Appellant’s consecutive sentence. The Commonwealth filed a
response, and this [c]ourt conducted a hearing on June 10, 2019.
Subsequently, this [c]ourt denied the Appellant’s motion in its
entirety on June 28, 2019. The Appellant filed a timely Notice of
Appeal to the Pennsylvania Superior Court.
Trial Court Opinion, 8/5/20, at 10-12 (record citations omitted).
Thereafter, Appellant and the trial court complied with Pennsylvania
Rule of Appellate Procedure 1925. On October 13, 2020, Counsel filed an
Anders brief, in which she avers that Appellant’s appeal is frivolous, and
requests permission from this Court to withdraw from representation.
Appellant did not file a response to the Anders brief or raise any additional
claims.
When faced with a purported Anders brief, we may not review the
merits of the underlying issues without first deciding whether counsel has
properly requested permission to withdraw. Commonwealth v. Wimbush,
951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted). Therefore, we
address the particular mandates that counsel seeking to withdraw pursuant to
Anders must follow. These mandates and the protection they provide arise
because a criminal defendant has a constitutional right to a direct appeal and
to counsel on appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
Super. 2007).
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2 The trial court also revoked Appellant’s parole and resentenced him, in a
separate case at docket CP-35-CR-0001590-2010, to 24 - 48 months of
incarceration. See N.T., 4/23/19, at 8.
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We have explained:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
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.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate’s brief on
Appellant’s behalf).
Id. (citations omitted).
Additionally, there are requirements as to the content of the Anders
brief:
[T]he Anders brief that accompanies court-appointed counsel’s
petition to withdraw … 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.
Santiago, 978 A.2d at 361. If counsel has satisfied the above requirements,
it is this Court’s duty to review the trial court proceedings to determine
whether there are any non-frivolous issues that the appellant could raise on
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appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018)
(en banc).
Instantly, Counsel has complied with the requirements of Anders.
Counsel filed a petition with this Court stating that after reviewing the record,
she finds this appeal to be wholly frivolous. Petition to Withdraw as Counsel,
10/13/20, ¶ 7. In conformance with Santiago, Counsel’s brief includes
summaries of the facts and procedural history of the case, and discusses the
issues she believes might arguably support Appellant’s appeal. See Anders
Brief at 5-17. Also, Counsel sets forth her conclusion that the appeal is
frivolous and includes citation to relevant authority. Id. Finally, Counsel has
attached to her petition to withdraw the letter she sent to Appellant, which
enclosed Counsel’s petition and Anders brief. Petition to Withdraw as
Counsel, 10/13/20, Ex. A. Counsel’s letter advised Appellant of his right to
proceed pro se or with private counsel, and raise any additional issues he
deems worthy of this Court’s consideration. Id. We thus proceed to
Appellant’s issues, which he states as follows:
A. WHETHER THE TRIAL COURT ERRED WHEN IT SENTENCED
APPELLANT TO 36 TO 72 MONTHS ON THE BURGLARY
CHARGE WHEN THE STANDARD SENTENCE WOULD BE 12
TO 18 MONTHS.
B. WHETHER THE TRIAL COURT ERRED WHEN IT SENTENCED
THE APPELLANT TO CONSECUTIVE (IN CONCISE
STATEMENT INCORRECTLY STATED AS CONCURRENT)
SENTENCES SINCE ALL OF THE ACTS CONSTITUTING
COUNTS 3, 4, 5 AND 6 ON 2018 CR 219 WERE COMMITTED
OVER THE COURSE OF A THREE-DAY DRUG-FUELED BINGE
AND, THEREFORE, THEY CONSTITUTE ESSENTIALLY ONE
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CONTINUOUS COURSE OF CONDUCT WARRANTING
CONCURRENT SENTENCES ON THESE COUNTS.
C. WHETHER THE AGGREGATE SENTENCE OF ALL COMBINED
CASES IS EXCESSIVE, HARSH, ARBITRARY AND CONTRARY
TO THE FUNDAMENTAL NORMS OF SENTENCING IN THIS
COMMONWEALTH.
Anders Brief at 4.
All of Appellant’s issues challenge the discretionary aspects of his
sentence. As stated above, the trial court sentenced Appellant pursuant to a
negotiated guilty plea. “Generally, a plea of guilty amounts to a waiver of all
defects and defenses except those concerning the jurisdiction of the court, the
legality of the sentence, and the validity of the guilty plea.” Commonwealth
v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted).
It is well settled when the plea agreement contains a negotiated
sentence which is accepted and imposed by the sentencing court,
there is no authority to permit a challenge to the discretionary
aspects of that sentence. If either party to a negotiated plea
agreement believed the other side could, at any time following
entry of sentence, approach the judge and have the sentence
unilaterally altered, neither the Commonwealth nor any defendant
would be willing to enter into such an agreement. Permitting a
discretionary appeal following the entry of a negotiated plea would
undermine the designs and goals of plea bargaining, and would
make a sham of the negotiated plea process.
Id. (citation omitted).
Here, Appellant’s December 10, 2018 written guilty plea colloquy,
bearing his initials on the bottom of each page and signature on the last page,
specifically states his agreement with the Commonwealth as follows:
[Appellant] will plead guilty to 1 count of Burglary (F2) and 3
counts of Criminal Trespass (F2). [Appellant] is requesting an
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aggregate sentence on all counts of 36 to 72 months on Burglary
an[d] terms of probation at the Criminal Trespass counts.
[Appellant] agrees to pay restitution to be determined.
Guilty Plea Colloquy, 12/10/18, at ¶ 13; see also N.T., 12/10/18, at 2.
In accordance with Appellant’s plea, the trial court sentenced him to the
negotiated sentence. Trial Court Opinion, 8/5/20, at 11-12; N.T., 4/23/19, at
8. Accordingly, we agree with the trial court and Counsel that Appellant’s
discretionary sentencing claims are waived.3 Trial Court Opinion, 8/5/20, at
24 (“It is clear that the Appellant waived his right to appeal the discretionary
aspects of his sentence where his plea agreement contained a negotiated
sentence. The Appellant and the Commonwealth bargained for a particular
sentence, and the Appellant received precisely what the terms of the
agreement promised.”); Anders Brief at 8 (“[C]ounsel for Appellant
understands that there is no authority to permit a challenge to the
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3 To the extent Appellant’s third issue challenges his total sentence when
combined with his resentencing at CP-35-CR-0001590-2010, we agree with
the trial court and Counsel that this claim is frivolous even in the absence of
waiver. See Trial Court Opinion, 8/5/20, at 19 (“Appellant’s aggregate
sentence of sixty (60) to one hundred and twenty (120) months with seven
(7) years special probation is not manifestly excessive for a felony one robbery
offense, felony two burglary offense, and three felony two criminal trespass
offenses. This [c]ourt may impose the sentence consecutively to his other
sentences for the crimes he committed while on parole. The Appellant is not
entitled to a volume discount for his crimes as his aggregate sentence is not
grossly disparate to his continued conduct, and inability to remain law-
abiding.”) (citations omitted); Anders Brief at 9 (“[C]ounsel recognizes that
given the nature and circumstances of the offenses, the history and
characteristics of the Appellant, his inability to rehabilitate and the need to
protect the public, it cannot be argued that the sentences imposed are harsh
and excessive.”).
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discretionary aspects of a sentence where the plea agreement contains a
negotiated sentence which is accepted and imposed by the sentencing court.”)
(citation omitted).
Finally, our independent review reveals no other non-frivolous issues
Appellant could raise on appeal. See Dempster, 187 A.3d at 272. We
therefore grant Counsel’s petition to withdraw and affirm Appellant’s judgment
of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/14/2021
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