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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 W. SPANGENBERG :
:
Appellant : No. 1295 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-0001590-2010
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 14, 2021
Brian W. Spangenberg (Appellant) appeals from the judgment of
sentence imposed following revocation of his probation and resentencing for
robbery.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 of this
case as follows:
On November 16, 2009, McCarthy Taxi company reported
a robbery by a masked male, later determined to be Appellant.
Upon arrival, the Scranton Police found the McCarthy dispatcher
covered in blood due to blunt-force head trauma. Police learned
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1 18 Pa.C.S.A. § 3701(a)(1).
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that the Appellant, a former McCarthy employee, smashed
surveillance cameras and assaulted the dispatcher by repeatedly
hitting him in the head and face with a tire iron, causing severe
injuries and hospitalization. Later, the Appellant utilized the same
tire iron to pry open a metal safe, stealing cash deposits. The
injured dispatcher fear[ed] for his life and begged the Appellant
to take the money and leave. The Appellant fled the scene.
During the police investigation, the Appellant’s girlfriend, Amber
Lewis, and her daughter, confessed that the Appellant committed
the robbery and assault at McCarthy Taxi Cab Company. . . .
Subsequently, on July 29, 2010, the Appellant entered a
guilty plea to one count of Robbery, 18 Pa.C.S.A. § 3701(a)(1).
After completion of a pre-sentence investigative report, this
[c]ourt sentenced the Appellant on October 19, 2010, to four (4)
to eight (8) years of state incarceration, followed by two (2) years
of state supervised probation. While serving parole for the instant
offense, and prior to commencement of the two (2) years state
supervised probation, the Appellant re-offended on January 17,
2018. In a sixteen (16) count criminal information the
Commonwealth alleged that the Appellant burglarized a VFW post
and an American Legion post between November 26, 2017 and
November 29, 2017.
On December 10, 2018, the Appellant entered a negotiated
guilty plea to one (1) count of Burglary and three (3) counts of
Criminal Trespass. The Appellant’s conviction violated the
probationary term of his original sentence. Thereafter, on April
23, 2019, this [c]ourt revoked the two (2) year probationary
sentence on 10 CR 1590 and re-sentenced the Appellant to
twenty-four (24) – forty-eight (48) months state incarceration.
On May 1, 2019, the Appellant filed a Motion for Reconsideration
of Sentence, alleging an improperly calculated prior record RFEL
score, absence of a Gagnon I [hearing], improper probation
revocation, and challenging 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.
Trial Court Opinion, 8/5/20, at 1-3 (citations omitted).
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Timeliness of Appeal
At the outset, we must determine whether this appeal is properly before
us. “The question of timeliness of an appeal is jurisdictional.”
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000) (citation
omitted). “In order to preserve the right to appeal a final order of the trial
court, a notice of appeal must be filed within thirty days after the date of entry
of that order.” Id. (citing, inter alia, Pa.R.A.P. 903(a)).
Rule 708(E) of the Pennsylvania Rules of Criminal Procedure provides
that “[a] motion to modify a sentence imposed after a revocation shall be filed
within 10 days of the date of imposition.” Id. “The filing of a motion to modify
sentence will not toll the 30-day appeal period.” Id. “Under this rule, the
mere filing of a motion to modify sentence does not affect the running of the
30-day period for filing a timely notice of appeal. Any appeal must be filed
within the 30-day appeal period unless the sentencing judge within 30 days
of the imposition of sentence expressly grants reconsideration or vacates the
sentence.” Pa.R.Crim.P. 708 (comment) (citing Commonwealth v.
Coleman, 721 A.2d 798, 799 n.2 (Pa. Super. 1998); Pa.R.A.P. 1701(b)(3)).
Here, the trial court resentenced Appellant on April 23, 2019, and
Appellant filed a timely post-sentence motion which the court denied on June
28, 2019. Appellant filed an untimely notice of appeal on July 8, 2019. See
Pa.R.A.P. 903(a); Pa.R.Crim.P. 708(E). However, in its June 28, 2019 order
denying Appellant’s post-sentence motion, the trial court incorrectly stated
that Appellant had the “right to file a notice of appeal within 30 days of the
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entry of this Order.” Order, 6/28/19. As the order misstated the law and
improperly advised Appellant of his appeal rights, we decline to quash. See
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001)
(declining to quash untimely appeal where trial court misstated appeal
period); Commonwealth v. Larkin, 235 A.3d 350, 353 (Pa. Super. 2020)
(“[T]his Court [has] noted that we have many times declined to quash an
appeal when the defect resulted from an appellant’s acting in accordance with
misinformation relayed to him by the trial court.”).
Anders
On October 22, 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.
It is well settled that when presented with an Anders brief, we may not
review the merits of the underlying issues without first determining 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).
We have explained:
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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
appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018)
(en banc).
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Instantly, Counsel has complied with the requirements of Anders.
Counsel filed a petition with this Court stating that after reviewing the record,
she finds the appeal to be wholly frivolous. Petition to Withdraw as Counsel,
10/22/20, ¶ 7. In conformance with Santiago, Counsel included in the
Anders brief summaries of the facts and procedural history, as well as
discussion of the issues she believes may arguably support Appellant’s appeal.
See Anders Brief at 5-26. Also, Counsel sets forth her conclusion that the
appeal is frivolous with citation to relevant authority. Id. Finally, Counsel has
attached to her petition to withdraw the letter she sent to Appellant, along
with Counsel’s petition and Anders brief. Petition to Withdraw as Counsel,
10/22/20, 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. Accordingly, we proceed to Appellant’s
substantive claims.
Issues
Appellant presents the following questions for our consideration:
A. WHETHER THE [TRIAL] COURT ERRED WHEN IT FAILED TO
HOLD A GAGNON II HEARING AS REQUIRED BY 42 PA. C.S.
§ 9771, AND PA. R. CRIM. P. 908?
B. WHETHER THE [TRIAL] COURT FAILED TO STATE ON THE
RECORD THE REASONS FOR THE SENTENCE IMPOSED ON
HIS GAGNON VIOLATION AS REQUIRED BY 42 PA. C.S. §
9721(B)?
C. WHETHER THE SENTENCE ON APPELLANT’S PROBATION
VIOLATION IS EXCESSIVE, HARSH, ARBITRARY AND
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CONTRARY TO THE FUNDAMENTAL NORMS OF SENTENCING
IN THIS COMMONWEALTH?
D. WHETHER THE IMPOSITION OF THE 24 TO 48 MONTHS
SENTENCE OF CONFINEMENT ON APRIL 23, 2019
FOLLOWING THE REVOCATION OF APPELLANT’S
PROBATION VIOLATED THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT AS APPLIED TO THE STATES
THROUGH THE FOURTEENTH AMENDMENT?
Anders Brief at 4.
Appellant first claims “his due process rights . . . were violated” because
the trial court erred in failing to hold a Gagnon II2 hearing prior to revoking
his original sentence. Anders Brief at 14. This issue is waived and frivolous.
It is well-settled that “issues not raised in the lower court are waived
and may not be raised for the first time on appeal.” Pa.R.A.P. 302(a). 3
Our Pennsylvania Rules of Appellate Procedure and our case
law provide the well-established requirements for preserving a
claim for appellate review. It is axiomatic that “[i]ssues not raised
in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). “The absence of a
contemporaneous objection below constitutes a waiver” of the
claim on appeal. Commonwealth v. Powell, [] 956 A.2d 406,
423 ([Pa.] 2008); Tindall v. Friedman, 970 A.2d 1159, 1174
(Pa. Super. 2009) (“On appeal, we will not consider assignments
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Starr, 234 A.3d 755, 762 (Pa. Super. 2020) (explaining when probationer is
detained based on an alleged probation violation, due process requires a
Gagnon I hearing to determine if there is probable cause that probationer
committed a violation of his probation, followed by a second more
comprehensive Gagnon II hearing where the court determines whether to
revoke probation).
3 “[T]he mere filing of an Anders brief and petition to withdraw will not serve
to resuscitate claims that were already waived upon the filing of the notice of
appeal.” Commonwealth v. Cox, 231 A.3d 1011, 1016-17 (Pa. Super. 2020)
(citing Pa.R.A.P. 302(a)).
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of error that were not brought to the tribunal’s attention at a time
at which the error could have been corrected or the alleged
prejudice could have been mitigated.”) (citation omitted)).
Commonwealth v. Rodriguez, 174 A.3d 1130, 1144–45 (Pa. Super. 2017).
Furthermore, when an appellant includes an issue in his Pa.R.A.P. 1925(b)
statement, such inclusion does not “resurrect” a waived claim. Id. at 1145
n.6 (citing Steiner v. Markel, 968 A.2d 1253 (Pa. 2009)).
As a result of Appellant pleading guilty to new crimes and thus incurring
new convictions, the trial court revoked Appellant’s probation and resentenced
him to 24 to 48 months of incarceration. At the April 23, 2019 hearing,
Appellant’s counsel did not mention or object to the court’s alleged failure to
conduct a Gagnon II hearing prior to revoking Appellant’s probation. See
N.T., 4/23/19, at 1-9. Further, and as Counsel notes, Appellant failed to raise
the issue in his post-sentence motion with the trial court.4 See Appellant’s
Petition for Reconsideration of Sentence, 5/1/19; Anders Brief at 14.
Consequently, we agree with the trial court that Appellant’s issue is waived
and therefore frivolous. See Trial Court Opinion, 8/5/20, at 9 (“Appellant’s
claim is waived as he did not object at the time of revocation and re-sentence
or in any post-sentence motion.”) (footnote omitted). See also
Commonwealth v. Montalvo, 956 A.2d 926, 936 (Pa. 2008) (recognizing
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4 While Appellant challenges the trial court’s alleged failure to conduct a
Gagnon I hearing in his post-sentence motion, he subsequently abandons
the issue in his Rule 1925(b) concise statement. See Appellant’s Concise
Statement, 9/25/19. Accordingly, this issue was also waived. See Pa.R.A.P.
1925 (b)(4)(vii) (“Issues not included in the [concise statement of errors
complained of on appeal] . . . are waived.”).
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“general rule that, in order to preserve a claim on appeal, a party must lodge
a timely objection”) (citing, inter alia, Commonwealth v. May, 887 A.2d 750,
758 (Pa. 2005) (“To the extent the claims would sound in trial court error,
they are waived due to the absence of contemporaneous objections.”);
Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”).
In his second and third issues, Appellant challenges the discretionary
aspects of his sentence. “The right to appellate review of the discretionary
aspects of a sentence is not absolute, and must be considered a petition for
permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265
(Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke this
Court’s jurisdiction when challenging the discretionary aspects of a sentence.”
Id. We conduct this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted).
Here, we declined to quash Appellant’s notice of appeal for untimeliness
due to trial court error; Appellant preserved his sentencing issues in a post-
sentence motion; and Appellant has included in his brief a Pa.R.A.P. 2119(f)
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statement. See Anders Brief at 10-11. Therefore, we examine whether
Appellant presents a substantial question for review.
Appellant argues his sentence is excessive and the trial court “failed to
state on the record the reasons for the sentence imposed on his Gagnon
violation as required by 42 PA. C.S. § 9721(B).” Anders Brief at 20 (bold-
type and capitalization omitted). We have held that such a challenge presents
a substantial question for our review. See Commonwealth v. Derry, 150
A.3d 987, 994-95 (Pa. Super. 2016) (claim that VOP sentencing court failed
to consider factors under 42 Pa.C.S.A. § 9721(b) raises a substantial
question).
With regard to the merits of Appellant’s claims, we recognize:
In selecting from the alternatives set forth in subsection (a), the
court shall follow the general principle that the sentence imposed
should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of the defendant. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
“Revocation of a probation sentence is a matter committed to the sound
discretion of the trial court and that court’s decision will not be disturbed on
appeal in the absence of an error of law or an abuse of discretion.”
Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation
omitted). Following revocation, a sentencing court need not undertake a
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lengthy discourse for its reasons for imposing a sentence of total confinement,
but the record as a whole must reflect the sentencing court’s consideration of
the facts of the crime and character of the offender. Commonwealth v.
Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along
with mitigating statutory factors. Additionally, the sentencing
court must state its reasons for the sentence on the record. 42
Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the
record by indicating that he or she has been informed by the pre-
sentencing report; thus properly considering and weighing all
relevant factors.
Commonwealth v. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)) (citations
omitted).
At sentencing, the trial court stated that it reviewed Appellant’s pre-
sentence investigation report. N.T., 4/23/19, at 4. The court further
emphasized Appellant’s repeated failure to accept responsibility for his
criminal conduct, his prior but unsuccessful opportunities for rehabilitation,
and his lack of remorse. See id. at 4-7. We discern no error. “[W]here the
sentencing court imposed a standard-range sentence with the benefit of a pre-
sentence report, we will not consider the sentence excessive.”
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Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011).
Additionally, “[i]n those circumstances, we can assume the sentencing court
was aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.” Id.We agree with Counsel that Appellant’s sentencing claims are frivolous.
In his fourth issue, Appellant argues the trial court violated the double
jeopardy clause of the United States Constitution by revoking his probation
and resentencing him. “[T]he question of whether a defendant’s constitutional
right against double jeopardy was infringed is a question of law.”
Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010). “Hence,
our scope of review is plenary and our standard of review is de novo.” Id.Our Supreme Court has explained that “probation and parole are not
part of the criminal prosecution[.]” Commonwealth v. Mullins, 918 A.2d
82, 85 (Pa. 2007). “Revocation of probation and resentencing does not
implicate double jeopardy precisely because revocation is not a second
punishment for the original conviction, but rather is an integral element of the
original conditional sentence.” Commonwealth v. Johnson, 967 A.2d 1001,
1005 (Pa. Super. 2005) (citation omitted).
Instantly, the trial court revoked Appellant’s probation and resentenced
him to 24 to 48 months of incarceration. Because the trial court’s revocation
“is not a second punishment,” but part of Appellant’s original sentence, there
was no double jeopardy violation, and we agree with Counsel that this issue
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is frivolous. Anders Brief at 26 (“Counsel concedes that the [trial] court had
the authority to revoke the previously imposed sentence for robbery and to
impose a new sentence[.] . . . Consequently, [C]ounsel acknowledges that the
sentence imposed on April 23, 2019 does not constitute an illegal sentence.”).
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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