Com. v. Alston, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES EDWARD ALSTON :
:
Appellant : No. 1154 WDA 2021
Appeal from the Judgment of Sentence Entered June 23, 2021
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000439-2020
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 10, 2022
James Edward Alston (Alston) appeals from the June 23, 2021 judgment
of sentence imposed by the Court of Common Pleas of Beaver County (trial
court) following his nolo contendere plea to sexual abuse of children,
possession of child pornography, unlawful contact with a minor, obscene and
other sexual materials and performances, and criminal use of a
communication facility.1 Alston’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), and a petition for leave to withdraw as counsel. We
grant the petition to withdraw and affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6312(b)(1), 6312(d), 6318(a)(4), 5903(c)(1) & 7512(a).
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We glean the following facts from the certified record. In October 2019,
law enforcement obtained a warrant to search Alston’s residence and cell
phone and discovered images and videos of child pornography. The victim
was a 13-year-old female who attended Alston’s church. She said that she
had known Alston for many years and that approximately one year earlier, he
provided her with a cell phone and asked her to send him photos of herself
naked and performing various sexual acts. Alston provided her with money
and candy in exchange for the images. On several occasions, Alston sent her
videos of himself engaging in sexual acts with other people.
Alston was charged by criminal information with five counts each of
sexual abuse of children and possession of child pornography and one count
each of unlawful contact with a minor, obscene and other sexual materials and
performances, and criminal use of a communication facility. He entered the
above-described open plea and the Commonwealth withdrew the remaining
charges. Sentencing was deferred for a presentence investigation and report
(PSI) and an evaluation by the Sexual Offenders Assessment Board (SOAB).
At sentencing, the parties discussed discrepancies in Alston’s Prior
Record Score (PRS) based on a Pennsylvania State Police (PSP) background
check and the number the probation office had calculated in the PSI.2 The
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2 The probation office had reported convictions from the 1990s that did not
appear on the PSP’s report. In addition, the Commonwealth argued that one
of Alston’s convictions in 1990 for aggravated assault was improperly listed
(Footnote Continued Next Page)
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trial court used the PRS of 1 and placed the following sentencing guideline
ranges on the record: based on an Offense Gravity Score (OGS) of 9, the
standard range for counts 1 and 6 was 18 to 30 months of incarceration;
based on an OGS of 6, the standard range for count 11 was 6 to 14 months
of incarceration; and based on an OGS of 5, the standard range for counts 12
and 13 was 1 to 12 months of incarceration.
The trial court stated that it had reviewed the PSI, which included an
impact statement from the victim’s mother. It noted that the SOAB had
opined that Alston was not a sexually violent predator. The Commonwealth
did not present any additional evidence.
Alston’s two adult daughters testified on his behalf. They testified
similarly that their father had been a positive influence in their lives, was a
pillar of his community and had raised them with strong moral values. They
described him as a good grandfather to their children. They both said he had
suffered from depression and anxiety because of the charges and that he had
expressed remorse and intended to learn from his mistakes.
Alston testified that he was currently retired but worked part-time as an
office sanitizer. He had previously worked at Walmart and as a truck driver.
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as a first-degree misdemeanor instead of a second-degree felony. The trial
court also identified misdemeanor convictions from 1995, 1997 and 1998 and
an additional felony conviction. Even though Alston’s PRS had been calculated
as a 1 during the pre-trial proceedings and negotiations, the Commonwealth
argued that it should be at least a 2.
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He said that he had been addicted to drugs, primarily crack cocaine, for 17
years but had been sober since 1999. He currently lived alone and supported
himself. He apologized to the victim and her family and said that he hoped
his own family would be able to recover and learn from his mistakes.
Alston’s attorney argued that he had cooperated with the investigation
by turning over electronic devices to law enforcement and providing his
passwords. He had several health issues and had undergone back and neck
surgery in the past. He previously used painkillers to treat his injuries but
was not currently. The trial court asked Alston about a therapeutic
assessment report prepared for sentencing which indicated that he continued
to use painkillers and had denied committing the crimes. Alston said that the
report was incorrect and that he had always acknowledged his guilt.
The Commonwealth requested a sentence within the standard range of
the sentencing guidelines and Alston argued for a sentence of county
incarceration or intermediate punishment. After considering the evidence
presented at the hearing, the PSI and the assessments and evaluations, the
trial court sentenced Alston as follows:
Ct. 1: Sexual abuse of children – 2 to 6 years’ imprisonment
Ct. 6: Possession of child pornography – 2 to 5 years’
imprisonment, concurrent to count 1
Ct. 11: Unlawful contact with a minor – 1 to 2 years’
imprisonment, consecutive to count 1
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Ct. 12: Obscene and other sexual materials and
performances – 1 to 2 years’ imprisonment, concurrent to count
11
Ct. 13: Criminal use of a communication facility – 1 to 2
years’ imprisonment, concurrent to count 11
The aggregate sentence was 3 to 8 years of imprisonment.
On July 6, 2021, Alston filed a timely3 post-sentence motion arguing
that his convictions for sexual abuse of children and unlawful contact with a
minor should have merged for sentencing purposes. He also sought
reconsideration of his sentence based on his age, health issues and the 25-
year lapse between this conviction and his prior criminal offense. The trial
court denied these motions and Alston timely appealed.4 Counsel filed a
statement of intent to file an Anders brief pursuant to Pa. R.A.P. 1925(c)(4).
As a result, the trial court transmitted the record to this Court without filing
an opinion pursuant to Pa. R.A.P. 1925(a). Counsel has filed an Anders brief
and an accompanying petition for leave to withdraw as counsel.
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3 A post-sentence motion must be filed within ten days of the imposition of
the sentence in open court. Pa. R. Crim. P. 720(A)(1). The tenth day following
Alston’s sentencing hearing was Saturday, July 3, 2021, and the trial court
was closed in observance of the Fourth of July on Monday, July 5. As a result,
the post-sentence motion filed on Tuesday, July 6, 2021, was timely. See 1
Pa.C.S. § 1908.
4The trial court granted trial counsel’s motion to withdraw and appointed new
counsel to represent Alston on appeal.
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“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. Martuscelli, 54 A.3d 940, 947 (Pa. Super.
2013). Procedurally, counsel must: (1) petition the court for leave to
withdraw stating that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) furnish a copy
of the brief to the defendant; and (3) advise the defendant that he or she has
the right to retain private counsel or raise additional arguments that the
defendant deems worthy of the court’s attention. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013). Substantial compliance
with these requirements is sufficient to permit withdrawal. Commonwealth
v. Reid, 117 A.3d 777, 781 (Pa. Super. 2015).
While his application to withdraw is sparse, on the whole, Counsel has
substantially complied with these procedural mandates. Counsel’s brief avers
that he reviewed the entire record and concluded that the instant appeal is
frivolous. He served a copy of the brief and petition to withdraw on Alston
and attached a copy of the letter he sent to Alston to the petition filed in this
Court. See Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007)
(noting that counsel must attach to their withdrawal petition a copy of the
letter sent to the client). The letter informed Alston that he has the right to
hire private counsel or file a pro se brief. Alston has not filed a response or
retained private counsel to represent him.
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We now examine the substantive elements of the Anders brief. The
brief accompanying the 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. See Santiago,
supra, at 361. Counsel’s Anders brief summarizes the factual and procedural
history, identifies four potential issues, and outlines the legal and factual
analysis that led counsel to conclude that any appeal would be frivolous.
Because counsel has complied with the procedural and substantive
requirements of Anders, we now “make a full examination of the proceedings
and make an independent judgment to decide whether the appeal is in fact
wholly frivolous.” Santiago, supra, at 355 n.5.
“A plea of guilty forecloses challenges to all matters except the
voluntariness of the plea, the jurisdiction of the court, or the legality of the
sentence.” Commonwealth v. Stewart, 867 A.2d 589, 591 (Pa. Super.
2005). Additionally, a defendant who enters an open plea may challenge the
discretionary aspects of the sentence. Commonwealth v. Tirado, 870 A.2d
362, 365 n.5 (Pa. Super. 2005). Counsel correctly notes that all crimes
charged in this case were alleged to have occurred in Beaver County, where
Alston resides. Accordingly, there is no non-frivolous challenge to the
jurisdiction of the trial court to adjudicate the claims. See 42 Pa.C.S. § 931(a)
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(jurisdiction of the courts of common pleas); Commonwealth v. Arcelay,
190 A.3d 609, 614 (Pa. Super. 2018) (“[A]ll courts of common pleas have
statewide subject matter jurisdiction in cases arising under the Crimes Code.”
(citation omitted, alteration in original)). Similarly, a defendant must preserve
a challenge to the validity of his plea by filing a motion to withdraw the plea
or raising an objection on the record. Commonwealth v. Monjaras-Amaya,
163 A.3d 466, 468-69 (Pa. Super. 2017). Here, Alston never challenged the
validity of his plea in the trial court, so any such challenge on appeal is waived
and wholly frivolous.
Next, we consider the legality of Alston’s sentence. There is no dispute
that the sentences the trial court imposed were well within the statutory
maximums for each of the offenses. However, Alston argued in his post-
sentence motion that the charges of sexual abuse of children and unlawful
contact with a minor should have merged for sentencing purposes. “A claim
that crimes should merge for sentencing purposes raises a non-waivable
challenge to the legality of the sentence; thus, our standard of review is de
novo and our scope of review is plenary.” Commonwealth v. Edwards, 256
A3d 1130, 1136 (Pa. 2021). Offenses merge when “the crimes arise from a
single criminal act and all of the statutory elements of one offense are included
in the statutory elements of the other offense.” 42 Pa.C.S. § 9765.
Alston’s offenses cannot merge because they are not based on the same
criminal act and neither offense contains all elements of the other. Sexual
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abuse of children required proof that Alston “cause[d] or knowingly permit[ed]
a child under the age of 18 years to engage in a prohibited sexual act. . . if
such person knows, has reason to know or intends that such act may be
photographed, videotaped, depicted on computer or filmed.” 18 Pa.C.S.
§ 6312(b)(1). In support of this offense, at the plea hearing, the
Commonwealth asserted that Alston gave the victim a cell phone and induced
her to take and send photos and videos of herself naked and performing sexual
acts in exchange for money and candy.
In contrast, the crime of unlawful contact with a minor required proof
that Alston intentionally contacted the victim for the purpose of engaging in
the crime of obscene and other sexual materials and performances, i.e.,
knowingly disseminating an image or video depicting nudity, sexual conduct
or sadomasochistic abuse to a minor. 18 Pa.C.S. §§ 6318(a)(4), 5903(c)(1).
In support of this charge, it asserted that Alston had sent videos of himself
engaged in sexual acts to the victim. This conduct was distinct from Alston’s
requests that the victim provide him with images and videos of herself and
required factual proof of elements not present in the crime of sexual abuse of
children. Accordingly, the crimes do not satisfy the two-part test for merger
and any challenge to the legality of his sentence on these grounds is frivolous.
See 42 Pa.C.S. § 9765.
Finally, though it was not addressed by counsel, we consider whether
the trial court abused its discretion in denying Alston’s post-sentence motion
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for reconsideration of his sentence.5 Even though counsel did not include a
statement pursuant to Pa. R.A.P. 2119(f) in his brief raising a substantial
sentencing question for our review, “when direct appeal counsel has filed an
Anders brief and is requesting permission to withdraw from representation,
this Court may overlook certain procedural deficiencies in appellate court
filings to ensure that Anders counsel has not overlooked non-frivolous
issues.” Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020).
Accordingly, we proceed to consider whether Alston preserved a substantial
question regarding the appropriateness 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. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation
omitted). An appellant must preserve his claims at the time of sentencing or
in a post-sentence motion, file a timely notice of appeal, include a statement
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5
Our standard of review is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias[,] or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Wallace, 244 A.3d 1261, 1278–79 (Pa. Super. 2021)
(citation omitted).
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of reasons for allowance of appeal pursuant to Pa. R.A.P. 2119(f) in his brief,
and raise a substantial question for review. Id. Here, Alston filed a timely
post-sentence motion seeking a reduction of the sentence and a timely notice
of appeal. Thus, we consider whether he has raised a substantial question.
“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. Clarke, 70 A.3d 1281, 1286–87 (Pa. Super. 2013)
(citation omitted). “[T]his Court has held on numerous occasions that a claim
of inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.
Super. 2013) (citation omitted, alteration in original).
In his post-sentence motion, Alston requested reconsideration “based
upon his age, health, and lack of criminal history.” Post-Sentence Motion,
7/6/21, at ¶ 12. He stated that he would soon turn 70 years old and suffered
from multiple health problems, “including hypertension and prostate issues
that require medication and careful monitoring.” Id. at ¶ 13. Finally, he
pointed out that prior to the instant case, he had not been charged criminally
since 1996.
Alston’s post-sentence motion simply restated mitigating factors he had
presented at the sentencing hearing as a basis for a reduction in his sentence.
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He did not claim that the trial court had not properly considered those factors
at sentencing or that it had otherwise failed to comply with the Sentencing
Code or abide by the fundamental norms underlying the sentencing process.
Conte, supra. A bald claim that the trial court did not give adequate
consideration to mitigating factors does not raise a substantial question for
our review.6 Disalvo, supra. Accordingly, any challenge to the discretionary
aspects of his sentence is frivolous.
Moreover, after independently reviewing the record, we conclude that
there are no additional non-frivolous issues that may support the appeal. See
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to first review
the issues raised by counsel and then review the entire record “to ascertain if
on its face, there are non-frivolous issues that counsel, intentionally or not,
missed or misstated”).
Petition to withdraw granted. Judgment of sentence affirmed.
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6 Additionally, we note that the trial court imposed a sentence within the
standard range of the sentencing guidelines following a hearing in which it
received Alston’s witnesses, heard Alston’s allocution, gave Alston the benefit
of a lower PRS when there were ambiguities in his criminal history and
considered a PSI. Under these circumstances we discern no abuse of
discretion in the trial court’s 3-to-8-year sentence of incarceration. See
Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa. Super. 2019).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2022
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