Com. v. Jenkins, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL JENKINS :
:
Appellant : No. 596 EDA 2021
Appeal from the Judgment of Sentence Entered November 15, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002344-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: Filed: September 30, 2021
Michael Jenkins appeals from the judgment of sentence, entered in the
Court of Common Pleas of Chester County, following entry of an open guilty
plea to one count each of dealing in proceeds of unlawful activity1 and persons
not to possess, use, or transfer a firearm.2 On November 15, 2019, the court
sentenced Jenkins to an aggregate term of 7½ to 16 years’ imprisonment.
Jenkins filed a timely motions for reconsideration of sentence and to modify
sentence, both of which the court denied. On appeal,3 Jenkins seeks to
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 5111.
2 18 Pa.C.S.A. § 6105(a)(1).
3 Jenkins did not file a direct appeal.
On November 13, 2020, Jenkins filed a
pro se petition under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
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challenge the discretionary aspects of his sentence and the validity of his guilty
plea. On March 19, 2021, the trial court entered an order pursuant to
Pa.R.A.P. 1925(b), and on May 4, 2021, pursuant to Pa.R.A.P. 1925(c)(4),
counsel for Jenkins filed a statement of intent to file an Anders4 brief. On
June 15, 2021, counsel filed a petition to withdraw on appeal pursuant to
Anders and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After
our review, we affirm Jenkins’ judgment of sentence and grant counsel’s
petition to withdraw.
In his Anders brief, counsel raises the following issues on Jenkins’
behalf: (1) did the sentencing court abuse its discretion in sentencing Jenkins;
and (2) was Jenkins’ guilty plea entered involuntarily or unknowingly? See
Anders Brief, at 8.
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any of
the substantive issues raised on appeal. See Commonwealth v. Bennett,
124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to withdraw on
appeal must comply with certain procedural and briefing requirements.
Specifically, counsel must:
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9541-9546. The PCRA court appointed counsel, and on March 16, 2021, the
court granted Jenkins’ petition and reinstated his direct appellate rights.
Jenkins filed a pro se notice of appeal on March 17, 2021; he also sought to
proceed in forma pauperis and requested appointment of counsel. The court
appointed counsel, Phillip Alan Simon, Esquire, that same day.
4 Anders v. California, 386 U.S. 738 (1967).
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(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record it has
been determined that the appeal would be frivolous;
(2) counsel must file a brief referring to anything that might
arguably support the appeal, but which does not resemble
a ‘no merit’ letter or amicus curiae brief;
(3) counsel must furnish a copy of the brief to defendant and
advise him of his right to retain new counsel, proceed pro
se or raise any additional points that he deems worthy of
the court’s attention.
Commonwealth v. Titus, 816 A.2d 251, 254 (Pa. Super. 2003); see also
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).
Substantial compliance with these requirements is sufficient.
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).
In addition, our Supreme Court, in Santiago, stated that an Anders
brief 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, supra at 361.
Here, our review of the record reveals counsel has complied with the
requirements for withdrawal outlined in Anders and its progeny. Specifically,
counsel requested permission to withdraw based upon his determination the
appeal is “wholly frivolous,” filed an Anders brief pursuant to the dictates of
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Santiago, furnished a copy of the Anders brief to Jenkins and advised Jenkins
of his right to retain new counsel or proceed pro se. See Anders Brief,
Exhibit B and C. See also Commonwealth v. Cartrette, 83 A.3d 1030,
1032 (Pa. Super. 2013) (en banc). Counsel’s petition to withdraw, which
included a copy of the Anders brief, contains proof of service on Jenkins. See
id. We conclude, therefore, that counsel’s compliance with the Anders
requirements was sufficient. See Wrecks, supra. Moreover, our review of
the record reveals no correspondence from Jenkins responding to the Anders
brief. Accordingly, we will proceed to examine the issues counsel identified in
the Anders brief, and then conduct “a full examination of all the proceedings,
to decide whether the case is wholly frivolous.” Commonwealth v. Yorgey,
188 A.3d 1190, 1195 (Pa. Super. 2018) (en banc); see also Commonwealth
v. Dempster, 187 A.3d 266 (Pa. Super. 2018) (en banc); Nischan, 928 A.2d
at 353-54.5
First, Jenkins challenges the discretionary aspects of his sentence. See
Anders Brief, at 12. He claims that the court abused its discretion in imposing
consecutive sentences. Id. at 18. The following principles guide our review:
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
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5 If we determine there are non-frivolous issues, we will deny the petition to
withdraw and remand the case with directions that counsel file an advocate’s
brief. Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2018).
See also Yorgey, supra at 1195 (this Court must conduct independent
review of record to discern whether there are additional, non-frivolous issues
overlooked by counsel).
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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.
The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. An appellant must satisfy a four-part test
to invoke this Court’s jurisdiction when challenging the
discretionary aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or
in a motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is
a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.
****
A substantial question will be found where an appellant
advances a colorable argument that the sentence imposed
is either inconsistent with a specific provision of the
Sentencing Code or is contrary to the fundamental norms
which underlie the sentencing process. At a minimum, the
Rule 2119(f) statement must articulate what particular
provision of the [C]ode is violated, what fundamental norms
the sentence violates, and the manner in which it violates
that norm.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations
omitted).
Jenkins’ appeal was timely filed, he preserved this sentencing issue in
his post-sentence motion, see Motion to Modify Sentence, 11/25/19, at ¶ 7,
and there are no fatal defects in the Anders brief. We must determine, then,
whether his claim raises a substantial question. After our independent review,
we conclude that it does not.
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This Court determines on a case-by-case basis whether a defendant has
raised a substantial question in a challenge to the discretionary aspects of
sentencing. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010). We have stated:
A court’s exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Rather, the imposition of consecutive rather
than concurrent sentences will present 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.
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en
banc) (citations and quotations omitted) (emphasis added). See
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (generally
speaking, court’s exercise of discretion in imposing consecutive as opposed to
concurrent sentences is not viewed as raising substantial question). Cf.
Commonwealth v. Dodge, 859 A.2d 771, 782 n.13 (Pa. Super. 2004)
(explaining decision “is not to be read a rule that a challenge to the
consecutive nature of a standard range sentence always raises a substantial
question or constitutes an abuse of discretion. We all are cognizant that
sentencing can encompass a wide variation of factual scenarios. Thus, we
make clear again that these issues must be examined and determined on a
case-by-case basis.”).
Given this record, which indicates that Jenkins, a repeat felon who was
statutorily ineligible to possess a firearm, sold a firearm for $300, and that
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the court sentenced him for his two felonies6 within or below the mitigated
range for Jenkins’ offenses, see infra, we agree with counsel that this claim
does not raise a substantial question for our review and the claim is frivolous.
The aggregate sentence does not appear on its face to be unduly harsh or
excessive in light of the criminal conduct at issue. See Commonwealth v.
Moury, 992 A.2d 162 (Pa. Super. 2010) (imposition of consecutive, rather
than concurrent, sentences may raise substantial question in only most
extreme circumstances).7
Next, we address the validity of Jenkins’ guilty plea. “Our law presumes
that a defendant who enters a guilty plea was aware of what he was doing.
He bears the burden of proving otherwise.” Commonwealth v. Yeomans,
24 A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted). “[A] defendant has
no absolute right to withdraw a guilty plea; rather, the decision to grant such
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6 The offense of dealing in proceeds of unlawful activities was graded as a
felony of the first degree, 18 Pa.C.S.A. § 5111(a)(1); the offense of persons
not to possess was graded as a felony of the second degree, 18 Pa.C.S.A. §
6105(a)(1).
7 Even if Jenkins had raised a substantial question, we would find no abuse of
discretion. The Sentencing Guidelines recommend a standard range minimum
of 40-52 months (+/- 9 months) for dealing in proceeds of unlawful activity,
which carries an offense gravity score (OGS) of 8, and 72-84 months (+/- 12
months) for persons not to possess or transfer a firearm, which carries an
OGS of 10. Here, the court sentenced Jenkins to 28-56 months’ imprisonment
on the unlawful activity conviction, and to 60-72 months’ imprisonment on the
persons not to possess conviction. Despite the fact that Jenkins is a repeat
felony offender (RFEL), the court’s sentence fell below the mitigated range of
the Sentencing Guidelines on the unlawful activity conviction, and within the
mitigated range on the persons not to possess conviction. See 204 Pa.Code
303.16(a) (Basic Sentencing Matrix).
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a motion lies within the sound discretion of the trial court.” Commonwealth
v. Muhammad, 794 A.2d 378, 382 (Pa. Super. 2002).
A defendant wishing to challenge the voluntariness of a guilty plea
on direct appeal must either object during the plea colloquy or file
a motion to withdraw the plea within ten days of sentencing.
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver. Historically, Pennsylvania courts
adhere to this waiver principle because [i]t is for the court which
accepted the plea to consider and correct, in the first instance,
any error which may have been committed.
Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013)
(internal quotation marks and some citations omitted).
Instantly, our review of the record reveals that Jenkins did not object to
his plea during the guilty plea hearing, see N.T. Guilty Plea Hearing, 7/29/19,
at 2-11, and did not seek to withdraw his plea at sentencing, see N.T.
Sentencing Hearing, 11/15/19, at 2-20, or in his motions to reconsider
sentence or modify sentence. See Motion for Reconsideration of Sentence,
11/19/19; Motion to Modify Sentence, 11/25/19; see also N.T. Hearing on
Motion for Reconsideration of Sentence, 12/3/19, at 2-12. As noted above,
in order to preserve an issue related to the validity of a guilty plea, a defendant
must either object during the colloquy or otherwise raise the issue at the guilty
plea hearing, sentencing hearing or in post-sentence motions.8 Lincoln,
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8 Indeed, “[p]ost-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage the entry of guilty pleas as
sentencing-testing devices.” Commonwealth v. Kpou, 153 A.3d 1020, 1023
(Pa. Super. 2016).
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supra; accord: Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.
Super. 2006); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”). Accordingly,
as this claim is waived, it is wholly frivolous.9 See Commonwealth v. Tukhi,
149 A.3d 881, 888 (Pa. Super. 2016) (“An issue that is waived is frivolous.”).
Based on the foregoing, we conclude Jenkins’ claims on appeal are
frivolous. Further, in accordance with Yorgey, 188 A.3d at 1197, we have
independently reviewed the certified record in order to determine if counsel’s
analysis regarding the frivolous nature of the present appeal is correct. We
agree with counsel’s assessment. We affirm the judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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9 To be valid, a guilty plea must be knowingly, voluntarily and intelligently
entered. Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003).
At the guilty plea hearing, Jenkins’ answers to the questions posed to him
during his on-record colloquy confirmed, inter alia, that he understood the
charges to which he was pleading guilty, that a factual basis for his plea to
the charges existed, that he understood a guilty plea must be entered
voluntarily, that he had not been coerced or threatened to enter a plea, that
he had not been promised anything in exchange for his plea, and that he was
entering his plea voluntarily. See N.T. Guilty Plea Hearing, supra at 5-10.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/21
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