Com. v. Howey, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JASON E. HOWEY :
:
Appellant : No. 142 MDA 2021
Appeal from the Judgment of Sentence Entered December 22, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000845-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON E. HOWEY :
:
Appellant : No. 143 MDA 2021
Appeal from the Judgment of Sentence Entered December 22, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000846-2020
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 01, 2021
Appellant, Jason E. Howey, appeals from the judgments of sentence,
entered in two separate cases, after he pled guilty to two counts of possession
with intent to deliver (“PWID”) (heroin and cocaine) in the case docketed at
CP-35-CR-0000845-2020 (“case 845-2020”), and one count of harassment in
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* Retired Senior Judge assigned to the Superior Court.
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the case docketed at CP-35-CR-0000846-2020 (“case 846-2020”).1 Herein,
Appellant seeks to challenge the discretionary aspects of his sentences,
alleging that his aggregate term of 42 to 120 months’ incarceration, plus 4
years’ probation (imposed in case 845-2020), and his fine of $300 (imposed
in case 846-2020), are excessive and an abuse of the court’s discretion.
Additionally, Appellant’s counsel, Donna M. DeVita, Esq., seeks to withdraw
her representation of Appellant, in each of his two cases, pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgments
of sentence and grant counsel’s petitions to withdraw.
The facts of Appellant’s underlying PWID and harassment convictions
are not pertinent to his present appeals. We need only note that he entered
open guilty pleas to the above-stated crimes on September 28, 2020. On
December 22, 2020, the court sentenced him to consecutive terms of 21 to
60 months’ incarceration, plus 2 years’ probation, for each of his PWID
convictions, and a fine of $300 for his harassment offense. Appellant did not
file post-sentence motions. On January 19, 2020, he filed a timely notice of
appeal in each of his two cases. He also timely complied with the trial court’s
orders to file Pa.R.A.P. 1925(b) concise statements of errors complained of on
appeal. The court filed identical Rule 1925(a) opinions in both cases on June
14, 2021.
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1 Appellant raises related issues in his two cases and, thus, we hereby
consolidate his appeals for ease of disposition.
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On July 27, 2021, Attorney DeVita filed with this Court two petitions to
withdraw from representing Appellant in each of his cases. That same day,
counsel also filed Anders briefs, stating that Appellant wished to raise the
following issue in both cases: “Whether the sentences imposed were harsh
and excessive.” Anders Brief in Case 845-2020 at 4; Anders Brief in Case
846-2020 at 4. Attorney DeVita concludes that Appellant’s challenges to his
sentences are frivolous, and that he has no other, non-frivolous issues he
could pursue herein. Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The 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, 978 A.2d at 361. Counsel also 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.”
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Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] 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).
In this case, Attorney DeVita’s Anders briefs comply with the above-
stated requirements. Namely, she includes summaries of the relevant factual
and procedural histories, she refers to portions of the record that could
arguably support Appellant’s claims, and she sets forth her conclusion that
Appellant’s appeals are frivolous. She also explains her reasons for reaching
those determinations and supports her rationale with citations to the record
and pertinent legal authority. Attorney DeVita also states in her petitions to
withdraw that she has supplied Appellant with copies of her Anders briefs.
Additionally, she attached to her petitions to withdraw letters directed to
Appellant, informing him of the rights enumerated in Nischan. Accordingly,
counsel has complied with the technical requirements for withdrawal. We will
now independently review the record to determine if Appellant’s issues are
frivolous, and to ascertain if there are any other, non-frivolous claims he could
pursue on appeal.
According to Attorney DeVita, Appellant seeks to argue that his terms
of incarceration, and his fine of $300, are excessive.
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A challenge to an alleged excessive sentence is a challenge to the
discretionary aspects of a sentence. Issues 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. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (internal
citations and quotation marks omitted).
Here, Attorney DeVita concludes that Appellant’s sentencing challenges
are waived because he did not file a post-sentence motion in either case or
raise his claims at the combined sentencing proceeding. The certified records
confirm that Appellant did not file any post-sentence motions, despite being
notified of his right to do so, and the time within which such motions had to
be filed. He also did not raise any challenge at the sentencing proceeding.
Accordingly, we agree with Attorney DeVita that Appellant’s sentencing claims
in both cases are waived. See id.; Commonwealth v. Griffin, 65 A.3d 932,
936 (Pa. Super. 2013) (“[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.”) (citation
omitted). Consequently, it would be frivolous for Attorney DeVita raise those
issues on appeal.
Nevertheless, we note that, even if not waived, Appellant’s sentencing
claims would be frivolous on their merits. To vacate a sentence, we must
conclude that the sentencing court committed a manifest abuse of discretion.
See Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006).
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Presently, the trial court heard defense counsel’s arguments regarding the
mitigating factors in this case, namely, that Appellant was addicted to drugs
at the time he committed his crimes, and that he needed treatment for his
addiction issues. N.T. Sentencing, 12/22/20, at 2-3. Defense counsel also
stressed that, while Appellant had a prior criminal record, he had not
committed a crime for over 10 years before his present offenses. Id. at 2. In
addition, Appellant spoke to the court, further stressing his need for
rehabilitation for his drug addiction. Id. at 4.
On the other hand, the court considered factors that weighed against a
lenient sentence, as outlined in Appellant’s presentence investigation report
(“PSI”). In its opinion, the court explained that it
meticulously reviewed the [PSI] report outlining … Appellant’s
pertinent personal background, as well as the circumstances of []
Appellant’s criminal history. Pointedly, … Appellant possessed a
prior record score of [Repeat Felon Offender], committing
robbery/theft, simple assault, [Protection From Abuse Act]
Contempt Violations, and drug-related offenses since 1995. []
Appellant was unsuccessful in Lackawanna County Domestic
Violence Court, relapsing several times by testing positive for
morphine. [] Appellant demonstrated a[] continuing incapability
to appreciate the wrongfulness of his conduct, which is clear by
his failure to ever participate in drug rehabilitation such as
attending meetings or working a twelve[-]step recovery program.
Appellant also showed he has failed to take his counseling for
domestic violence seriously, continuing to violate Protection from
Abuse Orders and consume drugs while enrolled in Domestic
Violence Court. Appellant has also failed to maintain steady job
employment.
Trial Court Opinion (“TCO”), 6/14/21, at 8.
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The court also took into account that the standard range sentencing
guidelines called for a minimum term of 24 to 36 months’ incarceration for
Appellant’s PWID heroin conviction, and 27 to 40 months’ incarceration for his
PWID cocaine offense. See id. at 7. Moreover, Appellant faced statutory
maximum terms of 15 and 10 years for his PWID heroin and PWID cocaine
convictions, respectively, as well as a 90-day term of incarceration for his
harassment offense. See N.T. Guilty Plea, 9/28/20, at 3.
Despite Appellant’s lengthy prior record, his apparent unwillingness to
take meaningful steps to rehabilitate from his drug-addiction issues, and the
standard-range sentences suggested by the guidelines, the court imposed
mitigated-range terms of 21 to 60 months’ incarceration for each of
Appellant’s PWID offenses, and a fine of $300 for his harassment conviction.
We recognize that the court directed Appellant’s PWID sentences to run
consecutively, and it did not state its reasons on the record for fashioning his
sentence. Notwithstanding, given the arguments heard by the court, the
information contained in the PSI, and the applicable guideline ranges, we
would not conclude that Appellant’s mitigated-range sentences are manifestly
excessive, even had he preserved his sentencing challenges for our review.
Because we discern no other, non-frivolous claims that Appellant could
raise on appeal, we affirm his judgments of sentence, and grant counsel’s
petitions to withdraw, in both of his two cases.
Judgments of sentence affirmed. Petitions to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/01/2021
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