Com. v. Ferron, D. ( 2023 )

J-S38024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DASHEEM FERRON :
:
Appellant : No. 257 EDA 2023
Appeal from the Judgment of Sentence Entered February 11, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000270-2021
BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 19, 2023
Dasheem Ferron appeals from the judgment of sentence imposed after
he pled guilty to persons not to possess a firearm.1 Ferron challenges the
discretionary aspects of his sentence. Additionally, his counsel asked to
withdraw representation and filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967). Upon review, we grant counsel’s petition, and affirm
the judgment of sentence.
In April 2020, Ferron was arrested and charged with multiple firearm
violations 2 following a narcotics surveillance. On December 10, 2021, Ferron
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105.
2 Ferron was also charged separately with possession of marijuana and crack
cocaine arising from this incident. He subsequently pled guilty to possession
with intent to deliver-marijuana. The instant appeal does not involve that
case.
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entered a non-negotiated plea to persons not to possess a firearm. The
Commonwealth withdrew the remaining charges. On February 11, 2022, the
trial court sentenced Ferron to 5 to 10 years’ incarceration. On February 16,
2022, Ferron filed a post-sentence motion, which the court denied. No appeal
was filed at that time.
Following an amended Post Conviction Relief Act (“PCRA”)3 petition and
the Commonwealth’s agreement, the court reinstated Ferron’s direct appellate
rights.
Ferron filed this timely appeal. Counsel filed a petition to withdraw from
representation and an Anders brief with this Court. Ferron did not retain
independent counsel or file a pro se response to the Anders brief.
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. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.
2010). Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, counsel must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
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3 42 Pa.C.S.A. §§ 9541-9546.
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counsel, proceed pro se, or raise any additional points [the
defendant] deems worthy of this Court's attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
(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. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, counsel has complied with each of the requirements of Anders.
Counsel indicated that he reviewed the record and concluded that Ferron's
appeal is frivolous. Further, the Anders brief substantially comports with the
requirements set forth by our Supreme Court in Santiago. Finally, the record
included a copy of the letter that counsel sent to Ferron stating counsel's
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intention to seek permission to withdraw and advising Ferron of his right to
proceed pro se or retain new counsel and file additional claims. Accordingly,
as counsel has complied with the procedural requirements for withdrawing
from representation, we will conduct an independent review to determine
whether Ferron’s appeal is wholly frivolous.
In the Anders brief, counsel indicates that Ferron desires to challenge
the discretionary aspects of his sentence. “Challenges to the discretionary
aspects of sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). This Court
has explained that, to reach the merits of a discretionary sentencing issue, we
must conduct a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]pellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [in
accordance with 2119(f)]; and (4) whether the concise statement
raises a substantial question that the sentence is appropriate
under the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Ferron has satisfied the first and third requirements under Colon. Because
Ferron raises several issues in his Rule 2119(f) statement, we must consider
whether he satisfied the third and fourth requirements for each issue.
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In his Rule 2119(f) statement, Ferron claims that the trial court: 1)
failed to provide an “express factor by factor explanation” for its sentence at
the sentencing or the motion for reconsideration hearing; 2) imposed an
excessive sentence and did not “properly” consider the mitigation evidence
presented by Ferron via witnesses and letters; and 3) failed to balance the
seriousness of the crime with his need to get back to his family and the
community. Anders Brief at 17.
Upon review of the record, we observe that Ferron did not preserve his
first sentencing claim, and therefore, in accordance with Colon, we cannot
consider it. However, Ferron preserved the remaining claims. Accordingly, we
must determine whether they raise a substantial question.
Regarding his second claim, this 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. Caldwell, 117
A.3d 763, 769 (Pa. Super. 2015). However, we have also held that “an
excessive sentence claim – in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question.” Id. at
770. Here, Ferron’s second claim is that the trial court did not adequately
consider certain mitigating factors. As such, this claim does not raise a
substantial question.
Regarding his third claim, this Court has held that sentencing an
offender solely based upon the serious nature of the criminal act, and not all
relevant factors, presents a substantial question for appellate review
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purposes. Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009).
We interpret Ferron’s third claim as the court focused on the seriousness of
the crime without considering other relevant factors. As such, we will review
the merits of this sentencing claim.
Our standard of review of a sentencing claim 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
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
On appeal, Ferron claims that his 5 to 10-year sentence was excessive
and clearly unreasonable. He argues that the court focused on the gravity of
the offense and did not consider other relevant factors. According to Ferron,
the objectives of protecting the public and his rehabilitation could have been
achieved with a shorter sentence given his amenability to rehabilitation.
Ferron maintains that this is particularly so given that another judge
subsequently sentenced him in a separate case to a lengthy sentence to be
served consecutive to this one. Anders Brief at 18, 21-22.
A fundamental norm in the sentencing process is that a defendant's
sentence be individualized. The Sentencing Code requires the court to
consider the protection of the public, the gravity of the offense in relation to
its impact on the victim and the community, and the rehabilitative needs of
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the defendant. The Code prohibits a sentence of total confinement without
consideration of “the nature and circumstances of the crime[,] and the history,
character, and condition of the defendant.” Commonwealth v. Swope, 123
A.3d 333, 338 (Pa. Super. 2015) (citing 42 Pa.C.S.A. § 9721); 42 Pa.C.S.A. §
9725.
As our Supreme Court explained in Commonwealth v. Devers, 546
A.2d 12 (Pa. 1988):
The philosophy of indeterminate or individualized sentencing was
explicitly recognized by the Pennsylvania Legislature early in this
century. Courts are not permitted to mete out punishment based
on the mere fact of the crime. On the contrary, sentencing must
result both from a consideration of the nature and circumstances
of the crime as well as the character of the defendant.
Id. at 13 (footnote omitted). Thus, “a sentencing court abuses its discretion
when it considers the criminal act, but not the criminal himself.”
Commonwealth v. Wright, 600 A.2d 1289, 1291 (Pa. Super. 1991)
(quotation marks and citation omitted).
Here, we initially observe that the court, in sentencing Ferron, had a
pre-sentence investigation report (“PSI”), and thoroughly reviewed it. N.T.,
2/11/22, at 4. It is well settled that where a sentencing court is informed by
a PSI, “it is presumed that the court is aware of all appropriate sentencing
factors and consideration, and that where the court has been so informed, its
discretion should not be disturbed.” Commonwealth v. Ventura, 975 A.2d
1128, 1135 (Pa. Super. 2009).
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Additionally, the court was informed that, based on a prior record score
of 4 and an offense gravity score of 11, the sentencing guidelines
recommended a standard range, minimum sentence of 60 to 78 months’
incarceration. N.T., 2/11/22, at 17. The court imposed a minimum sentence
at the lowest end of this range. As such, we consider Ferron’s sentence
appropriate. Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa. Super.
2019) (“where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.”).
Nevertheless, the trial court heard testimony from four family members
and received several letters in support of Ferron’s character. The court heard
about the difficult circumstances of Ferron’s life, in particular, the violent
killing of his friend standing right in front of him, and the loss of his brother.
The court was informed further that Ferron helps take care of his four children,
a disabled individual who is like a sister to him, and his nephews who lost their
father. The family is very close. The court was told that Ferron will have
support from his family when he returns home including a place to live,
financial support, and a job.
The trial court also heard from Ferron himself. He told the court that
before this arrest, he was working, was enrolled in school, and was doing well.
But his friend’s murder traumatized him and led him to start carrying a gun.
He asked the court to consider the impact this had on him, resulting in his
firearm violation. Ferron admitted he made some bad decisions.
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The trial court indicated that it listened carefully to those who testified
on his behalf and acknowledged these circumstances. Additionally, the court
indicated that it carefully considered the sentencing guidelines. The court
recognized that Ferron was not fighting or being violent with the gun at the
time of this incident and that this was his first offense involving a gun. But
the court emphasized that Ferron was informed specifically, at the time of his
prior conviction and ensuing violation hearings, that he was prohibited from
having a gun. The court also considered his rehabilitative needs by observing
that Ferron had committed numerous, fairly serious offenses. Lastly, the court
noted that it could not control another judge’s sentencing and was unwilling
to modify its sentence as Ferron requested. N.T., 2/11/22, at 39-40; N.T.,
6/24/22, at 13-16.
Based upon our review of the sentencing transcript, it is evident that
the trial court considered all relevant factors in this case and did not base
Ferron’s sentence only on the crime itself. On appeal, “[w]e cannot re-weigh
the sentencing factors and impose our judgment in place of the sentencing
court.” Macias, 968 A.2d at 778. Therefore, we conclude that the trial court
did not abuse its discretion when it sentenced Ferron.
For the foregoing reasons, we conclude that Ferron’s sole claim on
appeal is frivolous. Further, in accordance with Dempster, we have
independently reviewed the certified record to determine if there are any non-
frivolous issues that counsel may have overlooked. Having found none, we
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agree that the appeal is wholly frivolous. Consequently, we grant counsel’s
petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Date: 12/19/2023
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