Com. v. Thomas, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee :
:
v. :
:
ANTHONY THOMAS :
:
Appellant : No. 168 EDA 2021
Appeal from the Judgment of Sentence Entered December 11, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007210-2018
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: Filed: June 10, 2021
Appellant, Anthony Thomas, appeals nunc pro tunc from the judgment
of sentence entered in the Montgomery County Court of Common Pleas,
following his stipulated bench trial convictions for burglary, attempted
burglary, and conspiracy to commit burglary.1 We affirm and grant counsel’s
petition to withdraw.
The relevant facts and procedural history of this case are as follows. On
September 12, 2018, Appellant was arrested and charged with eight counts
of burglary, three counts of criminal attempt to commit burglary, seven counts
of criminal trespass, seven counts of theft by unlawful taking, ten counts of
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3502(a)(4), 901, and 903, respectively.
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receiving stolen property, ten counts of criminal mischief, and possessing
instruments of crime. Appellant proceeded to a stipulated bench trial on July
31, 2019, and the court convicted him of seven counts of burglary, three
counts of attempted burglary, and six counts of criminal conspiracy to commit
burglary. Sentencing was deferred pending a pre-sentence investigation
report (“PSI”).
On December 11, 2019, the court held a sentencing hearing. At the
hearing, the sentencing court agreed with Appellant’s counsel that Appellant’s
prior record score was a five and that he should not be sentenced as a Repeat
Felon (“RFEL”). The court also agreed with Appellant’s counsel that Appellant
was eligible for the recidivism risk reduction incentive (“RRRI”) program. The
court also agreed with counsel’s recommendation that Appellant be sent to
State Correctional Institution (“SCI”) Chester to be evaluated for drug
treatment. The court sentenced Appellant to consecutive terms of 12 to 24
months’ imprisonment for the burglary counts; consecutive terms of 12 to 24
months’ imprisonment for attempted burglary; and concurrent terms of 12 to
24 months’ imprisonment for conspiracy. This resulted in an aggregate
sentence of 10 to 20 years’ imprisonment.
On December 18, 2019, Appellant timely filed post-sentence motions,
which the court denied on June 10, 2020. On September 28, 2020, Appellant
filed a pro se petition under the Post-Conviction Relief Act (“PCRA”), and the
court reinstated Appellant’s direct appeal rights nunc pro tunc on December
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18, 2020.
On January 8, 2021, Appellant timely filed a notice of appeal nunc pro
tunc.2 On January 11, 2021, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On January 28, 2021, counsel for Appellant filed a statement pursuant to
Pa.R.A.P. 1925(c)(4), indicating counsel’s intent to file a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)
and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
As a preliminary matter, counsel seeks to withdraw his representation
pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978
A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition the
Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
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2 Appellant purported to appeal from the court’s order denying his post-
sentence motion. However, “[i]n a criminal action, [the] appeal properly lies
from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2
(Pa.Super. 2001) (en banc), appeal denied, 569 Pa. 681, 800 A.2d 932(2002). We have corrected the caption accordingly.
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sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s 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.
Id. at 178-79, 978 A.2d at 361.
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Instantly, appellate counsel has filed a petition to withdraw. The petition
states counsel has conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. In the Anders brief, counsel provides a
summary of the facts and procedural history of the case. Counsel’s argument
refers to relevant law that might arguably support Appellant’s issues. Counsel
further states the reasons for his conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the technical requirements
of Anders and Santiago. Accordingly, we proceed to an independent
evaluation of the issues raised in the Anders brief. See Palm, supra.Counsel raises the following issues on Appellant’s behalf:
Has Appellant…met the four-part analysis pursuant to
Commonwealth v. Mastromarino, 2 A.3d 581 (Pa.Super.
2010) and its progeny, to reach the merits of Appellant’s
claim that the sentencing court abused its discretion in the
sentencing of Appellant?
Is Appellant’s claim that the sentencing court abused its
discretion in sentencing Appellant to consecutive sentences
and in failing to take into account Appellant’s drug addiction
as a mitigating factor frivolous and without merit?
Is the record devoid of any issue having arguable merit and
is Appellant’s appeal wholly frivolous?
(Anders Brief at 5).
For purposes of disposition, we combine Appellant’s issues. Appellant
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argues that the trial court abused its discretion in sentencing him to an
aggregate term of 10 to 20 years’ imprisonment for burglaries that occurred
where no one was present; no one was hurt; the value of items taken was not
large; and the driving force behind the crimes was Appellant’s drug addiction.
Appellant claims that there was nothing to indicate that his crimes had a
profound impact on any of the victims. Additionally, Appellant insists that the
court did not adequately consider his drug addiction, which was referenced in
his PSI, in counsel’s argument, and in Appellant’s allocution.
As presented, Appellant’s claims challenge the discretionary aspects of
his sentence. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.
2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (2013) (considering
challenge to imposition of consecutive sentences as claim involving
discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d
949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive
challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[W]e 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
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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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,
129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v.
Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in
original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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
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Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 912-13. A claim of excessiveness can raise a
substantial question as to the appropriateness of a sentence under the
Sentencing Code, even if the sentence is within the statutory limits. Mouzon,
supra at 430, 812 A.2d at 624. Bald allegations of excessiveness, however,
do not raise a substantial question to warrant appellate review. Id. at 435,
812 A.2d at 627. Additionally,
Pennsylvania law affords the sentencing court discretion to
impose [a] sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this
discretion does not raise a substantial question. In fact, this
Court has recognized the imposition of consecutive, rather
than concurrent, sentences may raise a substantial 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.
Austin, supra at 808 (internal citations and quotation marks omitted).
Further,
“[T]his 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. Disalvo, 70 A.3d 900, 903 (Pa.Super.
2013) (internal citation omitted).
However, “prior decisions from this Court involving whether
a substantial question has been raised by claims that the
sentencing court ‘failed to consider’ or ‘failed to adequately
consider’ sentencing factors has been less than a model of
clarity and consistency.” Commonwealth v. Seagraves,
103 A.3d 839, 842 (Pa.Super. 2014) (citing
[Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super.
2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009)]).
In Commonwealth v. Dodge, this Court determined an
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appellant’s claim that the sentencing court “disregarded
rehabilitation and the nature and circumstances of the
offense in handing down its sentence” presented a
substantial question. Dodge, supra at 1273.
This Court has also held that “an excessive sentence claim—
in conjunction with an assertion that the court failed to
consider mitigating factors—raises a substantial question.”
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super.
2014), appeal denied, ___ Pa. ___, 105 A.3d 736 (2014)
(quoting Commonwealth v. Perry, 883 A.2d 599, 602
(Pa.Super. 2005)).
Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa.Super. 2015).
Nevertheless:
[A bald] allegation that the sentencing court failed to
consider certain mitigating factors generally does not
necessarily raise a substantial question. Commonwealth
v. McNabb, 819 A.2d 54, 57 (Pa.Super. 2003). Accord
Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa.Super.
1999) (reiterating allegation that sentencing court “failed to
consider” or “did not adequately consider” certain factors
generally does not raise substantial question). Compare
Commonwealth v. Felmlee, 828 A.2d 1105, 1107
(Pa.Super. 2003) (en banc) (stating substantial question is
raised, however, where appellant alleges sentencing court
imposed sentence in aggravated range without adequately
considering mitigating circumstances).
“When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin,
804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa.
671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148,
125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). “In particular, the
court should refer to the defendant’s prior criminal record,
his age, personal characteristics and his potential for
rehabilitation.” Id. Where the sentencing court had the
benefit of a [PSI report], we can assume the sentencing
court “was aware of relevant information regarding the
defendant’s character and weighed those considerations
along with mitigating statutory factors.” Commonwealth
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v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988).
See also Commonwealth v. Tirado, 870 A.2d 362, 368
(Pa.Super. 2005) (stating if sentencing court has benefit of
PSI, law expects court was aware of relevant information
regarding defendant’s character and weighed those
considerations along with any mitigating factors). Further,
where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code. See
Commonwealth v. Cruz-Centeno, [668 A.2d 536(Pa.Super. 1995)], appeal denied, 544 Pa. 653, 676 A.2d
1195 (1996) (stating combination of PSI and standard range
sentence, absent more, cannot be considered excessive or
unreasonable).
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).
Instantly, Appellant preserved his sentencing claims in a post-sentence
motion and filed a timely nunc pro tunc notice of appeal. Appellant also
included the requisite Rule 2119(f) statement. To the extent that Appellant’s
claim of an excessive sentence, in conjunction with his assertion that the court
failed to consider mitigating factors, raises a substantial question (see
Caldwell, supra; Raven, supra), we will address the appeal on the merits.
We observe 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. 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).
Here, Appellant’s arguments do not warrant relief. The court did not
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impose all sentences consecutively, and did not impose any sentences beyond
the standard range. (See N.T., 12/11/19, at 7-8). As well, the court stated
its reasons for imposing the consecutive sentences on the record, namely,
that Appellant was the ringleader in numerous burglaries of businesses and
that Appellant’s actions caused harm, frustration, and added expense. The
court expressed that Appellant did not deserve a volume discount for his
crimes. (See id. at 26). Additionally, the court noted Appellant’s prior
criminal history and the fact that lesser sentences did not deter Appellant.
(Id. at 26-27).
Appellant’s claim that the court did not adequately consider his drug
addiction, is also belied by the record. Appellant’s history of drug addiction
was addressed in counsel’s sentencing memorandum as well as the PSI report.
Appellant’s counsel discussed Appellant’s long battle with drug addiction
during argument at sentencing and requested that Appellant be made RRRI
eligible and assessed for drug treatment in prison. (See N.T., 12/11/19, at
11-13). Appellant himself discussed his drug addiction during his allocution.
(See id. at 22). Indeed, the court made Appellant RRRI eligible and
recommended to the Pennsylvania Department of Corrections that Appellant’s
confinement occur at SCI-Chester so that Appellant could receive treatment.
(See id. at 25). Under these circumstances, we see no reason to disrupt the
court’s sentencing rationale. See Shugars, supra.Following our independent review of the record, we agree the appeal is
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wholly frivolous. See Palm, supra. Accordingly, we affirm and grant
counsel’s petition to withdraw.
Judgment of sentence affirmed; petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/21
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