Com. v. Thompson, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN HEATH THOMPSON :
:
Appellant : No. 96 MDA 2023
Appeal from the Judgment of Sentence Entered on December 16, 2022
In the Court of Common Pleas of Snyder County Criminal Division at
No(s): CP-55-CR-0000052-2022
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: NOVEMBER 6, 2023
Appellant, Justin Heath Thompson, appeals from the December 16, 2022
amended judgment of sentence entered in the Snyder County Court of
Common Pleas following his negotiated guilty plea to Transients—Failure to
Comply with Registration Requirements.1 Appellant’s counsel, Jasmin A.
Smith, Esquire, has filed a Petition to Withdraw as Counsel and an Anders2
Brief, to which Appellant has not filed a response. Upon review, we grant
counsel’s Petition to Withdraw and affirm Appellant’s Judgment of Sentence.
By way of background, on July 21, 2014, Appellant pleaded guilty in the
Blair County Court of Common Pleas to 12 counts of Child Pornography,
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1 18 Pa.C.S. § 4915.1(a.1)(1).
2 Anders v. California, 386 U.S. 738 (1967).
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graded as a third-degree felony.3, 4 That same day, the trial court sentenced
Appellant to an aggregate term of 6 to 20 years of incarceration, comprised
of 12 consecutive 6-month to 5-year sentences. Appellant’s convictions
required him to register as a sex offender for a period of 10 years.
On August 10, 2022, the Commonwealth charged Appellant with, inter
alia, Transients—Failure to Comply with Registration Requirements. On
September 19, 2022, Appellant pleaded guilty to this offense.5 The trial court
ordered the preparation of a pre-sentence investigation (“PSI”) report.
On November 22, 2022, the trial court held a sentencing hearing. The
court noted that Appellant’s PSI report indicated that he has a prior record
score (“PRS”) of five. Appellant objected to the calculation of his PRS as
reported in the PSI report and believed, based on a prior calculation by Blair
County related to a 2019 or 2020 conviction, that his PRS was, in fact, one.
The trial court indicated that it “really [did] not care what another [c]ounty
calculated his [PRS] at” and inquired as to whether Appellant disputed that he
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3 18 Pa.C.S. § 6312(d)(1).
4 This Court did not have the benefit of reviewing the certified record in
Appellant’s Blair County case to ascertain the relevant background
information. We have instead gleaned the background facts from the trial
court’s opinion, Anders Brief, and the Notes of Testimony from Appellant’s
November 22, 2022 sentencing hearing in the instant matter, as well as the
criminal docket sheet for case number CP-07-CR-2591-2012 publicly available
on the website of Pennsylvania’s Unified Judicial System.
5 In exchange, the Commonwealth agreed to nolle pros the remaining charges
and that Appellant’s sentence would be in the bottom half of the standard
range of the sentencing guidelines.
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had previously been convicted of Felony 3 Child Pornography.6 Appellant
indicated that he did not dispute his prior convictions of “several counts” but
disagreed as to whether his sentences were imposed consecutively or
concurrently.7 The Commonwealth clarified that Appellant had been convicted
of “12 counts all sentenced consecutively” and the court confirmed “that gets
you to [a PRS of] 5.”8 Thus, based on Appellant’s prior conviction of 12 child
pornography offenses, and the imposition of consecutive sentences following
his convictions, the trial court concluded that the PSI calculation of a PRS of 5
was correct. The court proceeded to sentence Appellant to a term of 24
months to 7 years of incarceration.9
On December 2, 2022, Appellant filed a post-sentence motion in which
he argued, inter alia, that the calculation of his PRS was incorrect. The trial
court denied the motion without a hearing on December 16, 2022.10
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6 N.T. Sentencing Hr’g, 11/22/22, at 3.
7 Id.
8 Id. at 3-4.
9 The November 22, 2022 sentencing order erroneously indicated that
Appellant had been convicted of Failure to Register at Count II of the criminal
information. On December 2, 2022, the trial court entered an amended
sentencing order correcting this mistake by noting Appellant’s conviction of
Failure to Register at Count I of the criminal information.
10 That same day, the trial court entered an order reiterating that “this
[c]ourt’s Order of November 22, 2022[,] is amended to read that [Appellant]
is sentenced on Count 1 of the Information and not Count 2 of the Information.
In all other respects, this [c]ourt’s Order of November 22, 2022[,] shall remain
in full force and effect.” Order, 12/16/22.
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This timely appeal followed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
On July 26, 2023, Attorney Smith filed an Anders Brief indicating
Appellant wished to challenge the sentencing court’s decision to apply the PRS
of five over his objection and without holding a hearing. In addition, Attorney
Smith filed a petition to withdraw as counsel. Appellant did not file a response
to the Anders Brief or petition to withdraw.
In the Anders Brief, counsel indicated that Appellant wished to raise
the following issue on appeal:
Whether the trial court’s decision to apply a calculated [PRS], over
Appellant’s objection and without a separate hearing, was
manifest abuse of discretion[?]
Anders Brief at 6.
As a preliminary matter, we address appellate counsel’s request to
withdraw as counsel. “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. Daniels, 999 A.2d 590, 593 (Pa.
Super. 2010). In order for counsel to withdraw from an appeal pursuant to
Anders, our Supreme Court has determined that counsel must meet the
following requirements:
(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
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(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that she sent Appellant a copy of the
Anders Brief and Petition to Withdraw, as well as a letter explaining to
Appellant that he has the right to retain new counsel, proceed pro se, and to
raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748,
751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we will address
the substantive issue raised in the Anders Brief. Subsequently, we must
“make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.” Santiago,
978 A.2d at 355 n.5 (citation omitted). See also Commonwealth v.
Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders
requires the reviewing court to “review ‘the case’ as presented in the entire
record with consideration first of issues raised by counsel”).
In the Anders Brief, counsel reiterates Appellant’s challenge to the
sentencing court’s reliance on the PRS calculated by the Snyder County
Probation Department and the court’s decision not to hold a hearing on the
matter. Anders Brief at 9-12. This claim implicates the discretionary aspects
of Appellant’s sentence. See Commonwealth v. Johnson, 758 A.2d 1214,
1216 (Pa. Super. 2000) (“A challenge to the calculation of the Sentencing
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Guidelines raises a question of the discretionary aspects of a defendant’s
sentence.”). Challenges to the discretionary aspects of sentence are not
appealable as 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 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. § 9781(b).
Id. (citation omitted).
Here, Appellant complied with the first three requirements above.
Moreover, we have held that a claim that a trial court’s improper consideration
of a prior conviction, with a resulting improper prior record score, raises a
substantial question that the court has violated a fundamental norm
underlying the sentencing process. Commonwealth v. Anderson, 830 A.2d
1013, 1018 (Pa. Super. 2003). Thus, we will examine Appellant’s claim.
Our well-settled standard of review concerning the discretionary aspects
of sentencing is as follows:
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
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judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
[ ... ]In fashioning a sentence, the trial court must impose a term
of confinement consistent with the protection of the public, the
gravity of the offense as it relates to the impact of the victim and
to the community, and the rehabilitative needs of the
defendant.... Although the trial court must consider the
Sentencing Guidelines, the court is not obligated to impose a
sentence deemed appropriate under the Sentencing Guidelines.
At the same time, the trial court cannot justly sentence a
defendant unless it possesses sufficient and accurate information
about the circumstances of the offense and the character of the
defendant to formulate its judgment. In imposing a defendant’s
sentence, the trial court must state the reasons for the sentence
on the record. As long as the trial court’s reasons demonstrate
that it weighed the Sentencing Guidelines with the facts of the
crime and the defendant's character in a meaningful fashion, the
court’s sentence should not be disturbed.
Id. at 1018–19 (internal citations omitted).
The trial court, in determining the guideline sentence for a criminal
conviction, must establish the defendant’s prior record score. 204 Pa.Code §
303.2(a)(2). The prior record score “is based on the type and number of prior
convictions (§ 303.5) and prior juvenile adjudications (§ 303.6).” 204
Pa.Code § 303.4(a). Generally, when calculating a PRS, the court first
examines a PSI report, which lists a defendant’s prior arrests and convictions,
and then considers the objections to the information contained in the PSI
report, if any, made by the defendant’s counsel at the sentencing hearing.
Commonwealth v. Charles, 488 A.2d 1126, 1132 (Pa. Super. 1985).
With respect to Appellant’s assertion that the trial court applied a
miscalculated PRS when sentencing him, the trial court opined as follows:
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[Appellant] does not dispute the representations in the
presentence report that his aggregate sentence was six (6) to
twenty (20) years. Given [] Appellant’s most serious offenses
were felonies of the third degree, it is impossible to receive a
sentence of six (6) to twenty (20) years if all counts were served
concurrently to each other as the maximum possible penalty for a
felony three is seven years. At a minimum, [] Appellant would
have had to have been sentenced to at least three (3) consecutive
felony threes to reach a maximum of twenty (20) years. []
Appellant did not contest that his sentence was six (6) to twenty
(20) years.
***
The fact that [neither] counsel nor [] Appellant objected to the
language in the presentence report regarding [] Appellant’s
statement to the Probation Department acknowledging that his
sentences were consecutive nor that he objected to his aggregate
sentence being six (6) to twenty (20) years [] would indicate to
the [c]ourt that it was clear that [] Appellant’s Blair County
sentences were consecutive to each other.
Trial Ct. Op., 1/8/23, at 3-4 (unpaginated). The court, therefore, concluded
that it had sufficient information before it from which to determine that the
Snyder County Probation Department accurately calculated Appellant’s PRS.
It further concluded that holding additional proceedings on this issue would
be “frivolous and a total waste of time.” Id. at 4.
We agree. Our review confirms that Appellant’s relevant criminal history
includes 12 convictions of Child Pornography, each graded as a third-degree
felony. Thus, based on our review of the record, we conclude that the trial
court properly determined that the PSI calculation of a PRS of 5 was correct.
In addition, the court did not abuse its discretion in refusing to hold
another hearing limited to Appellant’s contention that the trial court applied
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an incorrect PRS. Appellant had a sentencing hearing at which: (1) he
conceded his prior convictions; (2) the court reviewed the documents that
properly considered all the factors required in calculating a PRS; and (3) the
court considered and rejected Appellant’s objection to the PRS calculation.
Further argument simply would not have resulted in a different PRS
calculation.
Following our review of the issues raised in counsel’s Anders Brief, we
agree with counsel that the trial court did not abuse its discretion in relying
on the PRS calculation of 5 and sentencing Appellant to a term of 24 months
to 7 years of incarceration. In addition, our independent review of the
proceedings reveals there are no issues of arguable merit to be raised on
appeal. Accordingly, we grant counsel’s Petition to Withdraw and affirm
Appellant’s Judgment of Sentence.
Petition to Withdraw as Counsel granted; Judgment of Sentence
affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/06/2023
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