Com. v. Guerrier, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CALEB C. GUERRIER :
:
Appellant : No. 761 MDA 2021
Appeal from the Judgment of Sentence Entered April 26, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000909-2016
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED JUNE 14, 2022
Appellant Caleb C. Guerrier appeals from the judgment of sentence
imposed after he pled nolo contendere to robbery. This matter returns to this
Court after we remanded for the filing of an amended Anders/Santiago1 brief
or an advocate’s brief. Appellant’s counsel (Counsel) has filed an amended
petition to withdraw and an amended Anders/Santiago brief. We grant
Counsel’s request to withdraw and affirm.
The underlying facts of this case are well known to the parties. See
Trial Ct. Op, 8/13/21, at 1-2 (unpaginated). Briefly, Appellant was arrested
for robbery and related offenses after he violently assaulted a female victim
during a robbery in November of 2015.
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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The trial court summarized the procedural history as follows:
After years of defense continuances, Appellant entered a plea of
no contest to count one, robbery, 18 Pa.[C.S.] § 3701(a)(1)(iv),
a felony of the second degree on April 6, 2021. Appellant signed
a written plea agreement with the Commonwealth. The plea
agreement represented that the “Commonwealth agrees to
recommend” a sentence to run concurrent to a federal sentence
that Appellant was then serving. A pre-sentence investigation
(PSI) was ordered to be completed by the Luzerne County Adult
Probation and Parole Department, and a sentencing hearing was
scheduled for a separate date and time.
On April 26, 2021, Appellant again appeared before the court for
sentencing. The pre-sentence investigation indicated that
Appellant’s prior record score was two (2). After considering the
submissions of counsel, the PSI and the allocution of Appellant,
we sentenced him within the standard range to a minimum of
fifteen (15) months to a maximum of thirty (30) months
incarceration on count 1, to be served in a state correctional
institution. Said sentence was ordered to be served concurrent to
any other sentence that Appellant was currently serving.
Id. at 2-3 (unpaginated) (citations omitted and formatting altered).
Appellant filed a timely post-sentence motion requesting reconsideration
and modification of his sentence, which the trial court denied. Appellant then
filed a timely appeal. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
In its Rule 1925(a) opinion, the trial court declined to address the merits
of Appellant’s sentencing claim because it concluded that Appellant’s claim did
not raise a substantial question for appellate review. Id. at 3 (unpaginated).
The trial court further concluded that even if Appellant’s claim did raise a
substantial question, the judgment of sentence should be affirmed because
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the sentence did not violate the Sentencing Code or the fundamental norms
of the sentencing process. Id. at 4 (unpaginated).
On appeal, Counsel submitted a petition to withdraw and an
Anders/Santiago brief. This Court denied the petition to withdraw and
remanded for the filing of an amended Anders/Santiago brief or an
advocate’s brief. Commonwealth v. Guerrier, 761 MDA 2021, 2022 WL
1087697 at *3-4 (Pa. Super. filed Apr. 12, 2022) (unpublished mem.).
Following this Court’s remand, Counsel filed an amended
Anders/Santiago brief and another petition to withdraw as counsel. Counsel
identifies the following issue:
Whether the trial court abused its discretion in failing to consider
Appellant’s rehabilitative needs; length of incarceration; need for
medical treatment; and his remorse.
Am. Anders/Santiago Brief at 1.
“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. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
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arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, 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.
Santiago, 978 A.2d at 361.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted).
Here, Counsel filed a petition to withdraw indicating that he reviewed
the record and determined that an appeal is frivolous and without merit.
Counsel also filed a copy of the letter he sent to Appellant, which indicates
that Counsel sent Appellant a copy of the amended Anders/Santiago brief
and advised Appellant that he may proceed pro se or retain private counsel to
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raise any additional issues he believes should be brought to this Court’s
attention.2 Accordingly, we conclude that Counsel has met the technical
requirements of Anders and Santiago, and we will proceed to address the
issues raised in Counsel’s amended Anders/Santiago brief.
In the amended Anders/Santiago brief, Counsel identifies Appellant’s
challenge to the discretionary aspects of his sentence. Am. Anders/Santiago
Brief at 7. Specifically, Appellant asserts that the sentencing court “abused
its discretion in failing to consider his rehabilitative needs, the length of
incarceration he had undergone since his arrest, his need for medical
treatment, and his remorse.” Id. at 9. Counsel notes that because the
sentencing court had reviewed a PSI, it is presumed that the sentencing court
was aware of relevant information about Appellant’s character and weighed
that information along with mitigating factors. Id. at 11 (citing
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010)). Therefore,
Counsel states that Appellant’s challenge to the discretionary aspects of the
sentence is frivolous. Id. at 12.
Initially, we note that “[i]n terms of its effect upon a case, a plea of nolo
contendere is treated the same as a guilty plea.” Commonwealth v. Lewis,
791 A.2d 1227, 1230 (Pa. Super. 2002) (citations omitted). “Generally, a plea
of guilty amounts to a waiver of all defects and defenses except those
concerning the jurisdiction of the court, the legality of the sentence, and the
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2 Appellant did not file a response to Counsel’s amended petition to withdraw.
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validity of the guilty plea.” Commonwealth v. Morrison, 173 A.3d 286, 290
(Pa. Super. 2017) (citation omitted). “However, when the plea agreement is
open, containing no bargain for a specific or stated term of sentence, the
defendant will not be precluded from appealing the discretionary aspects of
his sentence.” Commonwealth v. Guth, 735 A.2d 709, 711 n.3 (Pa. Super.
1999) (citation omitted).
Here, although the Commonwealth agreed to recommend that the trial
court structure Appellant’s new sentence concurrently to his federal sentence,
Appellant’s plea agreement did not contain any bargain for a specific sentence.
See Plea Agreement, 4/6/21. Therefore, Appellant is not precluded from
challenging the discretionary aspects of his sentence on appeal. See Guth,
735 A.2d at 711 n.3.
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We 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 there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered). “A substantial question exists only
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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 which underlie the sentencing
process.” Id. (citation omitted).
Instantly, Appellant preserved his sentencing issue in a post-sentence
motion, filed a timely appeal and Pa.R.A.P. 1925(b) statement, and included
a Pa.R.A.P. 2119(f) statement in the amended Anders/Santiago brief. See
id. Appellant has also presented a substantial question for our review. See
Commonwealth v. Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020)
(holding that a claim that the trial court failed to consider sentencing criteria
required by 42 Pa.C.S. § 9721(b), including the rehabilitative needs of the
defendant, presents a substantial question for our review). Therefore, we will
address the merits of Appellant’s claim.
Our well-settled standard of review is as follows:
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.
Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c)
and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
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(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some
citations omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered).
Additionally, the trial court “must consider the sentencing guidelines.” Id. at
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848 (citation omitted). Further, “[w]here the sentencing judge had the benefit
of a [PSI], it will be presumed that he was aware of relevant information
regarding [the defendant’s] character and weighed those considerations along
with the mitigating statutory factors.” Id. at 849-50 (citation omitted); see
also Moury, 992 A.2d at 171.
Here, at sentencing, the trial court stated the reasons for Appellant’s
sentence as follows:
All right. The court having reviewed the [PSI] report and what’s
been offered here today, does note [that Appellant] does have a
prior criminal history. Obviously he is currently under federal
supervision for matters that occurred there. So he was given
opportunities with some of his past sentences to correct and
reform his ways, but yet he still finds himself before the court
today. I feel a period of structured supervision would be
appropriate to assist [Appellant] in hopefully reforming his ways
and addressing any underlying issues he may have.
I therefore feel a sentence within the standard range of the
applicable guidelines would hold [Appellant] accountable for this
very serious offense and any impact this has had on the victim in
this matter. I do note the credit issue that legally I don’t feel
[Appellant] is entitled to credit that was applied towards the
service of another sentence. So he can’t get all of those days
credit on this case too. You can’t double dip as they say. He does
have a short period of credit he will receive, however, from [after]
that period of incarceration expired.
Therefore, on count one, robbery, the court will sentence within
the standard range of the guidelines to a minimum of 15 months
to a maximum of 30 months’ incarceration in a state correctional
institution. I will allow this sentence to run concurrent with any
other sentences [Appellant] might be serving. . . . He will receive
credit towards this sentence from March 30, 2021, through today’s
date of April 26, 2021.
N.T. Sentencing Hr’g, 4/26/21, at 6-8 (some formatting altered).
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Based on our review of the record, we discern no abuse of discretion by
the trial court in imposing Appellant’s sentence. See Raven, 97 A.3d at 1253.
The record reflects that the trial court reviewed the PSI report prior to
sentencing. Therefore, we presume that the trial court was aware of
Appellant’s medical/rehabilitative needs as well as the length of his federal
sentence, and that the trial court weighed those considerations along with
other mitigating factors. See Moury, 992 A.2d at 171; Fullin, 892 A.2d at
849-50. The trial court also considered the sentencing guidelines and imposed
a standard-range sentence. Lastly, consistent with the Commonwealth’s
recommendation, the trial court imposed a sentence concurrent to any other
sentence that Appellant was serving.
For these reasons, we agree that the appellate issue presented in the
Anders/Santiago brief is frivolous. Further, our independent review of the
record does not reveal any additional, non-frivolous issues. See Goodwin,
928 A.2d at 291; Flowers, 113 A.3d at 1250. For these reasons, we grant
Counsel’s petition to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/14/2022
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