Com. v. Maas, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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. :
:
:
WESTLEY MAAS :
:
Appellant : No. 601 MDA 2023
Appeal from the Judgment of Sentence Entered March 8, 2023
In the Court of Common Pleas of Lackawanna County
Criminal Division at CP-35-CR-0002285-2021
BEFORE: MURRAY, J., KING, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 11, 2023
Westley Maas (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to aggravated arson.1 Also, Appellant’s public
defender counsel, Donna DeVita, Esquire (Counsel), has filed a petition to
withdraw and accompanying brief 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 the
judgment of sentence.
The trial court recounted the following facts:
On November 12, 2021, the Mayfield Police Department
responded to a [] structure fire located at 615 May Street[,
Mayfield, Pennsylvania]. Officers arrived on scene and
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3301(a.1)(1)(ii).
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[discovered] the attic of the house was fully engulfed. Officer
Joseph Sherpinskas of the Mayfield Police greeted Mary Maas
[(Maas),] the resident of 615 May Street. [] Maas indicated that
her grandson, [Appellant], … was still inside the engulfed
residence. Officer Sherpinskas went into the home in search of
[Appellant]. Officer Sherpinskas searched the home and was
unable to locate [Appellant]. [] Maas pleaded with officers that
her grandson was still located inside the residence. Officer
Sherpinskas again went inside the home in search of [Appellant]
and attempted to reach the second floor[;] he called [Appellant’s]
name several times yet was still unable to locate [Appellant].
Officer Sherpinskas exited the residence[,] as the smoke was too
heavy.
After exiting the home for the second time, Officer
Sherpinskas was notified by a neighbor, Tanya Sleboda[,] that
[Appellant had] notified her that his grandmother’s residence was
on fire. [Appellant] was nowhere to be found during the fire.
Later that evening, the Lackawanna County Communications
Center notified Officer Sherpinskas that a male was at the
Convenient Market in Jermyn, Pa, stating that he set his home on
fire. Officer Sherpinskas left the scene of the fire, [and] called for
assistance from both the Archbald Police Department and the
Jermyn Police Department to apprehend [Appellant] at the
Convenient Market. The police quickly detained [Appellant] and
questioned him regarding the various statements he made to the
convenien[ce] store employees. At the scene, [Appellant] waived
his Miranda[2] rights and made a written statement about the fire,
in which he indicated that he lit a stack of papers on fire and threw
a can of [accelerant] on it. He then heard an explosion and left
the home[,] notifying only the neighbors that there was a fire,
while his grandmother remained in the home. [Appellant’s]
statement was verified by the store clerks and the fire marshal
[subsequently] ruled the fire arson.
Trial Court Opinion, 5/10/23, at 1-2 (footnote added).
The Commonwealth charged Appellant with aggravated arson and
numerous other offenses. On September 1, 2022, Appellant pled guilty to
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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aggravated arson and the Commonwealth nolle prossed the remaining
charges. Before sentencing, the trial court ordered a pre-sentence
investigation (PSI) report.
Sentencing occurred on March 8, 2023. It is undisputed that Appellant
addressed the trial court and expressed remorse for his actions. N.T., 3/8/23,
at 10-11. Maas, Appellant’s grandmother, spoke at sentencing on Appellant’s
behalf. Id. at 6-7. Thereafter, the trial court imposed a standard-guidelines-
range sentence of 4 – 8 years in prison and ordered Appellant to pay
restitution.
On March 13, 2023, Appellant timely filed a post-sentence motion for
reconsideration of sentence (PSM). Appellant claimed the trial court abused
its discretion in imposing an excessive sentence that failed to account for
various mitigating factors, including Appellant’s mental health issues and
difficult childhood. PSM, 3/13/23, ¶ 4; see also id. ¶ 7 (claiming Appellant
“had no aggravating factors”). Appellant asked the trial court to vacate his
sentence and impose a mitigated-range sentence. Id. ¶ 13. After a hearing,
the trial court denied the PSM on April 6, 2023. This timely appeal followed.
Appellant and the trial court have complied with Pa.R.A.P. 1925.
On June 6, 2023, Counsel filed an Anders brief and a petition to
withdraw as counsel. Appellant did not file a pro se brief or otherwise respond
to Counsel’s petition to withdraw.
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We address Counsel’s petition to withdraw before reaching the merits of
the issues in the Anders brief. See Commonwealth v. Strasser, 134 A.3d
1062, 1065 (Pa. Super. 2016) (“we do not consider the merits of an issue
raised in an Anders brief without first reviewing a request to withdraw”).
Counsel seeking to withdraw from representation 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. Id. (citing
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc)).
Here, Counsel states she has reviewed the record and concludes
Appellant’s appeal is frivolous and his claims are “without merit.” Petition to
Withdraw, 6/26/23, ¶ 9. Additionally, Counsel states that she notified
Appellant of her request to withdraw, furnished Appellant with copies of the
petition and Anders brief, and advised Appellant of his rights in lieu of
representation. Id. ¶ 8 (citing Ex. A (Counsel’s letter to Appellant dated
6/26/23)).3 Accordingly, Counsel has satisfied the procedural requirements
of Anders.
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3 Counsel has attached to the petition to withdraw a copy of the letter she
sent to Appellant informing him of his rights as set forth in Commonwealth
v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).
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We next determine whether Counsel’s Anders brief meets the
requirements of Santiago, supra. In an Anders brief accompanying a
petition to withdraw, counsel 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.
Here, Counsel has detailed the case history with citation to the record.
Anders Brief at 5-6. Additionally, Counsel discusses two issues that could
arguably support Appellant’s appeal and explains Counsel’s reasons for
concluding both issues are wholly frivolous. Id. at 9-16. Thus, Counsel has
complied with the requirements of Santiago and Anders.
We next review the merits of the issues raised in the Anders brief. We
also conduct an independent review of the record to determine whether
Appellant’s appeal is in fact wholly frivolous. See Santiago, 978 A.2d at 358;
see also Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.
2018) (en banc) (“part and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or misstated.”).
The Anders brief identifies two issues:
A. Whether the trial court imposed a harsh and excessive
sentence of 4 to 8 years[,] which sentence fell in the highest
end on the guideline standard sentence range[,] by failing to
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take into consideration the Appellant’s remorse and his mental
health issues and his efforts to alert the people residing in the
house that it was on fire[?]
B. Whether the trial court failed to state on the record the reasons
for the sentence imposed as required by Pa.R.Crim.P.
708(D)(2)[?]
Anders Brief at 4 (capitalization and citation modified). We address the issues
together.
Appellant challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. Commonwealth v. Summers,
245 A.3d 686, 691 (Pa. Super. 2021). Rather, this Court applies a four-part
test to determine:
(1) whether the appellant 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 the appellant’s brief
has a fatal defect, see 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. Bartic, 2023 PA Super 164 (Pa. Super. Sept. 12, 2023)
(brackets omitted; some citations omitted).
Counsel states, in candor, that because Appellant did not raise the
instant challenge to his sentence “either at sentencing or in a motion for
reconsideration of sentence, it may be considered waived.” Anders Brief at
12 and 16 (citing Pa.R.A.P. 302(a) (claims cannot be raised for the first time
on appeal)); see also Commonwealth Brief at 6 (“Appellant simply did not
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preserve for review the issues he now raises.”). We agree with Counsel’s
assessment.
“[I]ssues challenging the discretionary aspects of a sentence must be
raised in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v. Gibbs,
981 A.2d 274, 282-83 (Pa. Super. 2009) (emphasis added; citation omitted);
see also Bartic, supra. Because Appellant never raised the instant challenge
to his sentence at sentencing or in the PSM, he waived the issues. Gibbs;
see also Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884 (Pa.
Super. 2019) (“a new and different theory of relief may not be successfully
advanced for the first time on appeal.”).
Nonetheless, because Counsel has filed an Anders brief and petition to
withdraw, we address Appellant’s sentencing claim. See Commonwealth v.
Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating that while appellant
failed to properly preserve his discretionary aspects of sentencing claim, this
Court would address the merits of the claim due to appellant’s counsel’s
petition to withdraw). Appellant’s brief includes a Rule 2119(f) statement as
required, Anders Brief at 9-10, and his claims present a substantial question.
See Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (“The
failure to set forth adequate reasons for the sentence imposed has been held
to raise a substantial question.” (citation omitted)).
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We are mindful that 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.” Commonwealth v. Barnes,
167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc) (citation omitted).
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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted).
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted).
The Pennsylvania Supreme Court has explained:
The reason for this broad discretion and deferential standard of
appellate review is that the sentencing court is in the best position
to measure various factors and determine the proper penalty for
a particular offense based upon an evaluation of the individual
circumstances before it. Simply stated, the sentencing court
sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
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Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (citations and
quotation marks omitted).
The Sentencing Code provides that a sentencing 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). Additionally, “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.” 42 Pa.C.S.A. § 9721(b).
“A sentencing court has broad discretion in choosing the range of permissible
confinements that best suits a particular defendant and the circumstances
surrounding his crime.” Commonwealth v. Celestin, 825 A.2d 670, 676
(Pa. Super. 2003) (citation omitted).
Further, a sentencing court “need not undertake a lengthy discourse for
its reasons for imposing a sentence or specifically reference the statute in
question, 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. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012) (citation
omitted)). The court must also consider the sentencing guidelines. See
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).
Here, it is undisputed that Appellant’s sentence is within the standard
range of the sentencing guidelines. See Appellant’s Brief at 9; Commonwealth
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Brief at 8. Thus, we may only vacate the sentence if “the case involves
circumstances where the application of the guidelines would be clearly
unreasonable.” 42 Pa.C.S.A. § 9781(c)(2); see also Commonwealth v.
Raven, 97 A.3d 1244, 1254 (Pa. Super. 2014).
Counsel explains Appellant’s belief that the trial court imposed an
excessive sentence, where it failed to “state the reasons for the sentence
imposed”; Anders Brief at 13, and “failed to consider [Appellant’s] need for a
course of action to address his mental health issues.” Id. Appellant believes
“the sentencing court failed to consider his background, the underlying nature
of the offense, [and] that Appellant accepted responsibility for his actions….”
Id. at 14.
Notably, the trial court indicated it had reviewed Appellant’s PSI. Where
a sentencing court has the benefit of a PSI, “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.”
Commonwealth v. Conklin, 275 A.3d 1087, 1098 (Pa. Super. 2022)
(citation omitted). “[W]here the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009). “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 [PSI] report; thus
properly considering and weighing all relevant factors.” Commonwealth v.
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Fowler, 893 A.2d 758, 767 (Pa. Super. 2006) (emphasis added; citation
omitted).
Here, the court explained that it
reviewed [the PSI] report prepared by the Lackawanna County
Adult Probation Department, a diagnostic report prepared by the
State Correctional Institution at Smithfield[, and] the victim
impact statements. Additionally, the Commonwealth submitted
testimony that there were seventeen (17) total emergency
agencies involved that responded to the scene of the fire. N.T.,
3/8/2023, at 2-3. The court also heard testimony from
[Appellant’s grandmother,] who spoke on behalf of [Appellant].
Id. at 6. [Appellant] himself addressed the court and took
responsibility for his actions. Id. at 10-11. Finally, the court
imposed the sentence of four to eight years, which is in the middle
of the standard guideline range. In fashioning this sentence, the
court reasoned that the programs offered in the state prison
system can better serve the mental health and
rehabilitative needs of [Appellant], based on the [PSI] report
and the testimony heard at the time of the plea and sentencing.
Id. at 12. Therefore, the court did not abuse its discretion when
sentencing [Appellant] in the middle of the standard guideline
range and considering all sentencing factors, as well as the
reasoning placed on the record by the court.
Trial Court Opinion, 5/10/23, at 5-6 (emphasis added; citations modified).
Our review discloses that the trial court’s reasoning is supported by the
record. See id. The record also supports Counsel’s assertion that Appellant’s
PSI indicated that he had incurred [probation] violations on [a]
prior offense, and that the current offense was committed while
he was still serving a sentence for a prior offense. … [T]hese facts
may support a belief that [Appellant] cannot abide by the laws
and that a significant incarceration sentence was necessary.
Anders Brief at 15-16.
Contrary to Appellant’s claims, his standard-guideline-range sentence
is neither excessive nor unreasonable. See Commonwealth v. Hill, 210
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A.3d 1104, 1117 (Pa. Super. 2019) (stating “where a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.”) (citing Moury, 992 A.2d at 171)
(holding combination of PSI and standard-range sentence, absent more,
cannot be considered excessive or unreasonable)); see also
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007) (stating “rejection
of a sentencing court’s imposition of sentence on unreasonableness grounds
[should] occur infrequently”).
Both of Appellant’s issues are frivolous, and the record reveals no issues
of arguable merit that Appellant could raise. Therefore, we grant Counsel’s
petition to withdraw and affirm Appellant’s judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Date: 10/11/2023
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