Com. v. Covert, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOHN PAUL COVERT :
:
Appellant : No. 4 MDA 2021
Appeal from the Judgment of Sentence Entered November 23, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005480-2012
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 09, 2021
Appellant, John Paul Covert, appeals from the November 23, 2020
Judgment of Sentence of 1 to 5 years’ incarceration entered in the Dauphin
County Court of Common Pleas following the revocation of his probation. With
this appeal, Appellant’s counsel has filed a Motion to Withdraw as Counsel and
an Anders1 Brief. After careful review, we affirm Appellant’s Judgment of
Sentence and grant counsel’s Motion to Withdraw.
The relevant facts and procedural history are as follows. On February
12, 2013, Appellant entered a negotiated guilty plea to one count each of
conviction of Dissemination of Explicit Sexual Materials to a Minor, Unlawful
Contact with a Minor, Corruption of Minors, Criminal Solicitation—Involuntary
Deviate Sexual Intercourse (“IDSI”), Criminal Solicitation—Statutory Sexual
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1 Anders v. California, 386 U.S. 738 (1967).
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Assault, Criminal Solicitation—Indecent Assault, and Criminal Attempt—
Dissemination of Explicit Sexual Materials to a Minor.2
Pursuant to the negotiated agreement, on May 23, 2013, the trial court
sentenced Appellant to 2½ to 5 years’ incarceration on the Criminal
Solicitation—IDSI. On the Dissemination of Explicit Sexual Material to a Minor
and Unlawful Contact with a Minor convictions, the trial court imposed
concurrent 5-year terms of probation, to be served consecutively to
Appellant’s prison sentence. The trial court imposed separate concurrent 5-
year terms of probation for the convictions of Corruption of Minors and the
Criminal Attempt to Disseminate Explicit Sexual Materials to a Minor, to be
served consecutively to the first 5-year term of probation. The trial court
imposed no further penalty for the remaining charges.
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2 18 Pa.C.S §§ 5903(c)(1), 6318(a)(1), 6301(a)(1)(i), 902(a), 901(a),
respectively.
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On October 30, 2019, following a Gagnon II3 hearing, the trial court
determined that Appellant had violated the terms of his probation4 that he
was serving on the Dissemination of Explicit Sexual Material to a Minor and
the Unlawful Contact with a Minor convictions. The trial court revoked
Appellant’s probation and sentenced him to a term of 1 to 5 years’
imprisonment. The trial court explicitly noted that the terms of probation for
the Corruption of Minors and Criminal Attempt to Disseminate Explicit Sexual
Material to a Minor were not affected.
On November 6, 2019, Appellant filed a Motion to Modify Sentence,
which the revocation court denied on November 18, 2019. Following
reinstatement of Appellant’s direct appeal rights, he timely appealed.
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3 In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court of the
United States determined a two-step procedure was required before parole
or probation may be revoked:
[A] parolee [or probationer] is entitled to two hearings, one a
preliminary hearing [Gagnon I] at the time of his arrest and
detention to determine whether there is probable cause to believe
that he has committed a violation of his parole [or probation], and
the other a somewhat more comprehensive hearing [Gagnon II]
prior to the making of a final revocation decision.
Id. at 781-782.
4 The court determined that this violation occurred because Appellant had
been unsuccessfully discharged from sexual offender treatment for not
appearing at some of the sessions, had possessed pornography on his cell
phone, and had failed to notify his state parole officer that he possessed that
particular cell phone.
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On September 29, 2020, this Court vacated Appellant’s Judgment of
Sentence and remanded for resentencing.5 Following a resentencing hearing,
on November 23, 2020, the court reimposed a sentence of 1 to 5 years’
imprisonment. Appellant filed a timely Motion to Modify Sentence, which the
trial court denied. Appellant timely appealed.
The trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response, counsel
filed a Statement of Intent to File an Anders/Santiago Brief in lieu of filing a
Rule 1925(b) Statement pursuant to Pa.R.A.P. 1925(c)(4). The trial court
filed a Memorandum in lieu of a Rule 1925(a) opinion on February 16, 2021.
Anders Brief
In this Court, counsel has filed an Anders Brief challenging the
discretionary aspects of Appellant’s sentence. Anders Brief at 5. In addition,
counsel has filed a Motion to Withdraw as Counsel.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal
under Anders, counsel must file a brief that meets the requirements
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5 This court determined that the revocation court imposed a sentence of total
confinement without explaining the reasons on the record. See
Commonwealth v. Covert, No. 303 MDA 2020, unpublished memorandum
at 4 (Pa. Super. filed Sept. 29, 2020).
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established by the Pennsylvania Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), namely:
(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.
Id. at 361.
In addition, counsel must provide a copy of the Anders brief to his
client. “Attending the brief must be a letter that advises the client of his right
to: ‘(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;
or (3) raise any points that the appellant deems worthy of the court’s attention
in addition to the points raised by counsel in the Anders brief.’”
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (quoting
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007)).
Counsel has complied with the requirements of Anders as articulated in
Santiago and supplied Appellant with a copy of the Anders Brief and a letter
explaining the rights enumerated in Orellana and Nischan. See Anders
Brief, Exh. B (Letter, dated March 8, 2021). Accordingly, counsel has satisfied
the technical requirements for withdrawal.6
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6 Appellant did not file a Response.
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Having addressed counsel’s technical compliance with Anders, we will
address the substantive issue raised by counsel. In addition, we must 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) (en banc).
Counsel raises the following issue in the Anders brief:
Did the trial court abuse its discreation [sic] in re-sentencing
appellant to a term of one (1) to five (5) years of incarceration on
the charges of dissemination of explicit sexual material to a minor
and unlawful contact with a minor, where the sentence was
excessive and unreasonable?
Anders Brief at 5 (full capitalization omitted).
Discretionary Aspects of Sentence
Here, Appellant challenges the discretionary aspects of his sentence.
Specifically, Appellant argues that his sentence, “is manifestly excessive such
that it constitutes too severe a punishment where Appellant’s probation had
not previously been revoked, Appellant was able to explain the presence of
the pornography found on his phone, and he was gainfully employed and had
a stable address during the time he was supervised.” Id. at 11-12. He also
complains that “the reasons set forth by the sentencing [j]udge were
insufficient to justify the imposition of an incarceration sentence when
revoking a sentence of probation.” Id. at 12.
A challenge to discretionary aspects of a sentence is not reviewable as
a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.
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Super. 2015). Rather, an appellant challenging the sentencing court’s
discretion must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a post-sentence
motion; (3) complying with Pa.R.A.P. 2119(f), which requires a separate
section of the brief setting forth a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a sentence;
and (4) presenting a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.;
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
Appellant timely appealed. Further, Appellant sufficiently preserved at
least some aspects of his claim in a Motion to Modify Sentence, which
requested a more lenient sentence based on alleged mitigating factors, 7 and
included a Rule 2119(f) statement in the Anders Brief. See Motion to Modify
Sentence, 12/2/20; Anders Brief at 10. We will proceed, therefore, to
consider whether Appellant’s claim presents a substantial question or is
frivolous.
Whether a substantial question has been raised is determined on a case-
by-case basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
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7 Specifically, Appellant requested modification of his sentence because: (1)
this was his first revocation; (2) he had maintained employment since his
release from prison; and (3) he maintained a stable address. Motion to Modify
Sentence, 12/2/20, at 2. Appellant did not request modification on the
grounds that he had an explanation for the presence of pornography on his
phone or that “the reasons set forth by the sentencing [j]udge were
insufficient to justify the imposition of an incarceration sentence when
revoking a sentence of probation.” See Anders Brief at 11-12.
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2010). “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 [that] underlie the sentencing process.” Id.(citation and quotation marks omitted).
Appellant here asserts that the trial court imposed an excessive
sentence because it did not properly consider mitigating evidence showing
that he cooperated with the Commonwealth. See Motion to Modify Sentence;
Anders Brief at 11-13.
It is well-settled that “[a]n allegation that the sentencing court failed to
consider certain mitigating factors generally does not necessarily raise a
substantial question.” Moury, 992 A.2d at 171 (citation omitted). Here, our
review of the Notes of Testimony from Appellant’s November 23, 2020
Resentencing Hearing indicate that, in fashioning Appellant’s sentence, the
court considered the factors raised by Appellant herein and weighed them
against the seriousness of Appellant’s conduct that gave rise to the violation.
N.T., 11/23/20, at 5-8. Thus, we conclude that Appellant has not raised a
substantial question.
Following our review of the issue raised by Appellant in counsel’s
Anders Brief, we agree with counsel and conclude that this appeal is wholly
frivolous. In addition, following an independent review of the record, we
discern no arguably meritorious issues that warrant further consideration.
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Accordingly, we grant counsel’s Motion to Withdraw as Counsel and affirm
Appellant’s Judgment of Sentence.
Application to Withdraw as Counsel granted; Judgment of Sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2021
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