Com. v. Classen, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSE CLASSEN :
:
Appellant : No. 2153 EDA 2020
Appeal from the Judgment of Sentence Entered October 5, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000361-2015
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 18, 2022
Jose Classen appeals from the judgment of sentence following the
revocation of his probation. His counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), and a petition to withdraw as counsel.
We affirm and grant counsel’s petition to withdraw.
On February 26, 2016, Classen entered a non-negotiated guilty plea to
Possession of a Firearm Prohibited.1 See Trial Ct. Op., filed 2/19/21, at 1. On
June 16, 2016, the court sentenced Classen to 11½ to 23 months’
incarceration, followed by three (3) years of probation. Id. Classen was
paroled to house arrest, which he completed in February 2017. Id.While on probation, Classen was arrested and charged with offenses
related to the straw purchase of a firearm. A jury convicted him of conspiracy
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1 18 Pa.C.S.A. § 6105(a)(1).
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for making false statements on federal firearm forms to purchase firearms.2
Id. at 2. The court sentenced Classen to three and a half to seven years of
incarceration.3 Id.
On October 5, 2020, the court held a violation of probation (“VOP”)
hearing. The Commonwealth and Classen’s counsel agreed that Classen’s
conviction constituted a direct violation of his probation. N.T., 10/5/20, at 26-
27. The court imposed a new sentence of four to eight years in prison, with
credit for time served. Id.
On October 15, 2020, Classen timely filed a post-sentence motion
requesting a modification or reconsideration of his sentence. The motion noted
mitigating factors, including that Classen has run his own business and worked
his entire life; supports his children and his wife; and was diagnosed with
bipolar disorder and post traumatic stress disorder. See Post-Sentence Mot.
To Modify or Reconsider Sentence, 10/15/20, at 2-3. Classen argued that the
court did not consider these mitigating factors and imposed an excessive
sentence equal to the statutory maximum permissible. Id. at
On November 4, 2020, Classen timely filed a direct appeal.4 On
November 10, 2020, the court denied Classen’s motion for reconsideration.
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2 18 Pa.C.S.A. §§ 903; 6111(g)(4).
3Classen’s direct appeal from his judgment of sentence is docketed at 1829
EDA 2020.
4 See Pa.R.Crim.P. 708(E) (“A motion to modify a sentence imposed after a
revocation shall be filed within 10 days of the date of imposition. The filing of
a motion to modify sentence will not toll the 30-day appeal period.”)
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Classen’s counsel filed a motion for leave to withdraw, which was granted.
New counsel was appointed for purposes of the instant appeal.
In response to the court’s Pa.R.A.P. 1925(b) order, counsel filed a notice
of intent to file an Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4).
The court agreed that there were no non-frivolous issues of arguable merit
that had been properly preserved. Trial Ct. Op. at 3.
Counsel’s Anders brief identifies one issue, which we set forth
verbatim:
Did the lower court abuse its discretion when it denied
defendant/appellant’s motion to reconsider and reduce the
sentence imposed in this matter?
Anders Br. at 6.
Before we assess the substance of the Anders brief, we must first
determine whether counsel’s request to withdraw meets certain procedural
requirements. See Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa.Super. 2007) (en banc). An Anders brief that accompanies a request to
withdraw 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.
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Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel must
also provide a copy of the Anders brief to the client, and a letter that advises
the client of the 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). If counsel has satisfied these requirements, we then
conduct “a full examination” of the record “to decide whether the case is
wholly frivolous.” Commonwealth v. Dempster, 187 A.3d 266, 271
(Pa.Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).
Here, in the Anders brief, counsel provides a procedural and factual
history of the case, with citations to the record, discusses the issues arguably
supporting the appeal, and explains why counsel concludes those issues are
frivolous. Anders Br. at 5-35. Counsel served a copy of the Anders brief upon
Classen, Anders Br. at Cert. of Service, and his letter to Classen advised him
that he may raise any additional issues before this Court pro se or with private
counsel. Petition to Withdraw as Counsel, filed May 24, 2021. The Anders
brief satisfies the necessary requirements.
Classen has not filed any response to the Anders brief, either pro se or
through private counsel. We will therefore address the issue counsel has
identified.
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The sole issue the Anders brief identifies is a challenge the VOP
sentence as excessive, where the court did not consider mitigating factors.
This is a challenge to the discretionary aspects of sentence.
There is no absolute right to appellate review of the discretionary
aspects of a sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa.Super. 2013) (en banc). Rather, we engage in a four-part analysis before
addressing such a challenge. We must determine whether: (1) appellant has
filed a timely notice of appeal; (2) properly preserved the issue at sentencing
or in a motion; (3) appellant’s brief includes a Pa.R.A.P. 2119(f) statement;
and (4) there is a substantial question that the sentence is not appropriate
under the Sentencing Code. See 42 Pa.C.S.A. § 9781(b); Commonwealth v.
Austin, 66 A.3d 798, 808 (Pa.Super. 2013).
Here, these requirements are met. Classen’s appeal was timely, and he
preserved the issue in a motion. The Anders brief includes a Pa.R.A.P. 2119(f)
statement in his brief, and the issue presents a substantial question. See
Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa.Super. 2015) (en
banc) (concluding that an excessive-sentence claim, in conjunction with an
assertion that the court failed to consider mitigating factors, raises a
substantial question).
Pursuant to Pennsylvania statute 42 Pa.C.S.A. § 9771(b), upon
revocation of probation “the sentencing alternatives available to the court shall
be the same as were available at the time of initial sentencing.” Further, a
VOP court may impose a sentence of total confinement if it finds that “(1) the
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defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned; or (3) such a sentence is essential to vindicate the authority
of the court.” 42 Pa.C.S.A. § 9771(c). Moreover, “[a] sentencing court need
not undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court's consideration of the facts of the crime and
character of the offender.” Commonwealth v. Schutzues, 54 A.3d 86, 99
(Pa.Super. 2012).
During sentencing, the court noted that it had reviewed Classen’s prior
record, pre-sentencing report, the appropriate sentencing code and the
purpose behind direct violation hearings.5 N.T., 10/5/20, at 26-27. The court
particularly noted Classen’s history of arrests for threatening individuals with
firearms in 2013, 2014, and 2016, and that with regard to his most recent
arrest, he had sought out an “individual who had certain limitations” to
accomplish his purpose. N.T., 10/5/20, at 26-27. Thus, the court determined
that the original sentence, on the low end of the guidelines, was no longer
sufficient to protect the public from Classen. Id. at 24-25. Thus, the court
imposed the four-to-eight-year revocation sentence. Id. at 26. To the extent
that mitigating factors were present, the court considered them, and provided
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5 Some of this information was not explicitly referenced at the sentencing
hearing but was contained within the pre-sentence investigation report and
Gagnon hearing summaries.
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a specific reason – the protection of the public – for the increased revocation
sentence. Schutzues, 54 A.3d at 99. This issue is frivolous.
Our independent review of the record has not uncovered any non-
frivolous issues for appeal.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2022
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