Com. v. Brncik, M. ( 2022 )

J-S11027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL J. BRNCIK :
:
Appellant : No. 1335 WDA 2021
Appeal from the Judgment of Sentence Entered September 24, 2021
In the Court of Common Pleas of Warren County Criminal Division at
No(s): CP-62-CR-0000545-2020
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY OLSON, J.: FILED: APRIL 20. 2022
Appellant, Michael J. Brncik, appeals from the judgment of sentence
entered on September 24, 2021, following his guilty plea convictions for two
counts of theft by unlawful taking, 18 Pa.C.S.A. § 3921(a). On this direct
appeal, Appellant's court-appointed counsel has filed both a petition for leave
to withdraw as counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009). We conclude that Appellant's counsel has complied with the
procedural requirements necessary to withdraw. Moreover, after
independently reviewing the record, we conclude that the instant appeal is
wholly frivolous. We, therefore, grant counsel's petition for leave to withdraw
and affirm Appellant's judgment of sentence.
The trial court briefly summarized the facts and procedural history of
this case as follows:
J-S11027-22
As a result of an investigation by the Pennsylvania State Police
commencing on November 25, 2019, [Appellant] was charged on
October 28, 2020 with [the aforementioned crimes, as well as,
another count of theft by unlawful taking and one count of]
persons not to possess a firearm, a second[-]degree felony[, 18
Pa.C.S.A. § 6105(a)(1)]. It was alleged that [Appellant] stole
numerous items, including firearms, that belonged to individuals
who permitted [Appellant] to reside with them for a period of time.
The police interviewed individuals who had purchased some of the
stolen items from [Appellant]. On July 8, 2021, [Appellant] pled
guilty to [two offenses involving] the theft of [] firearms and []
other items of personal property. The plea was accepted as an
“open plea” with no agreement with respect to sentence.
On September 24, 2021, [Appellant] was sentenced to an
aggregate [penalty] of sixty (60) months to one-hundred twenty
(120) months with credit for time served of nine days. Pursuant
to the plea agreement, the [trial] court entered an order on
September 27, 2021, that [] nolle [prossed] the other two
charges. On October 1, 2021, [Appellant] filed a timely motion
for reconsideration of sentence asserting that the [trial] court
abused its discretion by sentencing [Appellant] to an extensive
period of incarceration and specifically asserted that the [trial]
court should have imposed concurrent sentences and not
consecutive sentences. Following argument on the motion on
October 22, 2021, the [trial] court entered an order denying the
motion.
Trial Court Opinion, 11/22/2021, at 1-2 (superfluous capitalization omitted;
footnotes omitted or incorporated). This timely appeal resulted.1
Before reviewing the merits of this appeal, this Court must first
determine whether appointed counsel has fulfilled the necessary procedural
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1 Appellant filed a notice of appeal on November 5, 2021. On November 5,
2021, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
November 22, 2021.
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requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “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.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which
counsel:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel's conclusion that the appeal is frivolous; and (4) state[s]
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; see also Commonwealth v. Smith, 700 A.2d
1301, 1304 (Pa. Super. 1997) (“[C]ounsel seeking to withdraw under Anders
is required to flag any issues that the defendant wishes to raise, as well as
any other claims necessary to the effective appellate presentation of those
issues.”). Finally, counsel must furnish a copy of the Anders brief to his or
her client and advise the client “of [the client's] right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court's attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
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proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. ... [T]his
review does not require this Court to act as counsel or otherwise advocate on
behalf of a party. Rather, it requires us only to conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze those issues
of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
Here, counsel complied with all of the above procedural obligations.2
Furthermore, neither the Commonwealth nor Appellant has responded to the
petition to withdraw or Anders’ brief. We must, therefore, review the entire
record and analyze whether this appeal is, in fact, wholly frivolous. In his
Anders’ brief, counsel flags the following issue Appellant wishes to raise:
1. [Whether] the trial court erred and abused its discretion by
imposing consecutive sentences resulting in an aggregate
sentence that was unduly harsh[?]
____________________________________________
2 We note that counsel attached the notification of rights letter to the Anders’
brief instead of the petition to withdraw as counsel. However, upon review of
the record, counsel forwarded all necessary information to Appellant.
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Anders’ Brief at 9.
We have previously determined:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
We 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 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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
citations and quotations omitted).
Here, Appellant has satisfied the first two requirements of the above
cited test. Appellant filed a timely notice of appeal. Within his post-sentence
motion, he preserved a general claim that his sentence was excessive because
the trial court sentenced him consecutively. Counsel for Appellant, however,
failed to include a separate statement pursuant to Pa.R.A.P. 2119(f) in the
Anders brief. This Court has previously determined that “[w]here counsel
files an Anders brief, this Court has reviewed the matter even absent a
separate Pa.R.A.P. 2119(f) statement” and we “do not consider counsel's
failure to submit a Rule 2119(f) statement as precluding review of whether
[issues are] frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.
Super. 2015) (citation omitted). Moreover, the Commonwealth did not object
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to the omission of the Rule 2119(f) statement. See Commonwealth v.
Brougher, 978 A.2d 373, 375 (Pa. Super. 2009) (Even though defendant
failed to include a Rule 2119(f) statement with respect to the discretionary
aspects of a sentence in his brief, defendant's claims were not waived since
the Commonwealth failed to object to the statement's absence). We,
therefore, proceed to determine whether Appellant raised a substantial
question.
We have explained:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Moury, 992 A.2d at 170 (internal citations and quotations omitted). “[T]his
Court does not accept bald assertions of sentencing errors. An appellant must
articulate the reasons the sentencing court's actions violated the sentencing
code.” Id. (internal citations omitted). “Under 42 Pa.C.S.A. § 9721, the court
has discretion to impose sentences consecutively or concurrently and,
ordinarily, a challenge to this exercise of discretion does not raise a substantial
question.” Id. at 171; see also Commonwealth v. Radecki, 180 A.3d 441,
468 (Pa. Super. 2018) (this Court has consistently recognized that
excessiveness claims premised on the imposition of consecutive sentences do
not raise a substantial question for our review). “The imposition of
consecutive, rather than concurrent, sentences may raise a substantial
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question in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment.” Moury, 992 A.2d at 171-72; compare
Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008) (Dodge was
sentenced to an aggregate term of 58 ½ to 124 years' imprisonment after he
was convicted of numerous, largely property offenses and we viewed his
challenge to the sentencing court's exercise of discretion as raising a
substantial question). However, we further recognized that the substantial
question raised in Dodge was “an extreme case” and, thus, the preliminary
substantial question inquiry focuses on “whether the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face to
be, an excessive level in light of the criminal conduct at issue in the case.”
Commonwealth v. Mastromarino, 2 A.3d 581, 588 (Pa. Super. 2010).
Here, Appellant does not claim that the individual sentences imposed
for his convictions were excessive or in violation of the sentencing code.
Instead, he baldly argues that his aggregate sentence is excessive and is
premised solely on the imposition of consecutive sentences. Appellant was
convicted of two distinct crimes. The trial court, in the absence of an
agreement on sentencing, imposed sentences in the standard range of the
sentencing guidelines on both criminal counts and imposed them
consecutively, resulting in an aggregate punishment of five to 10 years’
incarceration. We conclude that the consecutive nature of the sentences does
not raise Appellant’s aggregate sentence to, what appears upon its face to be,
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an excessive level or unduly harsh in light of the criminal conduct at issue in
the case and, therefore, we find Dodge inapplicable. Appellant’s challenge
does not raise a substantial question for our review.3
Regardless, upon review of the record, we find Appellant’s discretionary
sentence challenge unavailing. “[S]entencing is vested in the discretion of the
trial court, and will not be disturbed absent a manifest abuse of that discretion.
An abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.” Commonwealth v. Brown, 249 A.3d
1206, 1211 (Pa. Super. 2021). Furthermore:
Long standing precedent recognizes that the Sentencing Code
affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences[] imposed at the
same time or to sentences already imposed. We will not disturb
consecutive sentences unless the aggregate sentence is grossly
disparate to the defendant's conduct, or viscerally appears as
patently unreasonable. Moreover, it is well-settled that when the
trial court has the benefit of a presentence investigation (“PSI”)
report, it is presumed that the court was both aware of and
appropriately weighed all relevant information contained therein.
Id. at 1212 (internal citations, quotations, brackets, and ellipses omitted).
Here, before imposing Appellant’s sentence, the trial court considered
the sentencing guidelines, the criminal complaint and affidavit of probable
cause, victim impact evidence, a presentence investigation report, and a letter
from Appellant. See N.T., 9/24/2021, at 6-9. We presume that the trial court
____________________________________________
3 The trial court also found that Appellant failed to raise a substantial question
for appellate review. Trial Court Opinion, 11/22/2021, at 5.
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was aware of and appropriately weighed all of the relevant evidence before
imposing sentence. In addition, the trial court specifically considered that
Appellant was “a repeat felon with 14 prior convictions for theft-related
offenses[] from the time [Appellant was] 16 [years of age] until the time [he
was] 46 [years old].” Id. at 9. As such, the trial court considered Appellant’s
prior record and demonstrable resilience to rehabilitation before imposing
sentence. Furthermore, as discussed above, the aggregate sentence is not
grossly disproportionate to Appellant’s criminal conduct. Finally, Appellant
was not entitled to a “volume discount” for his two offenses. See
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citation
omitted). For all of the foregoing reasons, we conclude that the trial court
did not abuse its discretion in sentencing Appellant. Accordingly, we conclude
that Appellant fails to raise a substantial question, but that his discretionary
aspect of sentencing claim is otherwise without merit.
Finally, after independent review of the certified record, we discern no
additional, non-frivolous issues overlooked by counsel. See Commonwealth
v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017) (“After determining that
counsel has satisfied the[] technical requirements of Anders and Santiago,
this Court must then conduct an independent review of the record to discern
if there are any additional, non-frivolous issues overlooked by counsel.”)
(citation and internal quotations omitted). Accordingly, we affirm Appellant’s
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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