Com. v. Baun, N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NICHOLAS W. BAUN
Appellant No. 381 WDA 2014
Appeal from the Judgment of Sentence of February 5, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at No.: CP-33-CR-0000488-2004
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 19, 2014
Nicholas Baun appeals his February 5, 2014 judgment of sentence for
a probation violation. Baun alleges that the trial court abused its discretion
and imposed an excessive sentence. Baun’s counsel has filed a petition to
withdraw as counsel, together with an “Anders/Santiago brief.”1 We find
that Baun’s counsel has satisfied the Anders/Santiago requirements and
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*
Retired Senior Judge assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). In Santiago, our Supreme Court
developed certain rules to ensure compliance with the principles underlying
the Anders decision. Thus, it is common practice in this Court to refer to
briefs filed thereunder as “Anders/Santiago briefs.” Because a number of
the cases discussed below predate Santiago, however, we will refer to
“Anders briefs” when the brief at issue was filed before Santiago was
decided.
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that Baun has no meritorious issues to pursue on appeal. Consequently, we
grant counsel’s petition to withdraw as counsel, and we affirm Baun’s
judgment of sentence.
On April 8, 2005, Baun pleaded guilty to aggravated indecent assault
of a child, 18 Pa.C.S. § 3125(b), and statutory sexual assault, 18 Pa.C.S.
§ 3122.1(a), charges that arose from his sexual assault of his neighbor’s
niece. On the former charge, he was sentenced to four to eight years’
imprisonment; for the latter, he was sentenced to ten years’ probation, to
run consecutively to the former sentence. As part of his sentence, Baun also
was forbidden for the duration of his sentence from contact with the victim
or her family, or unsupervised contact with anyone under the age of
eighteen.
On or about July 15, 2012, Baun was released to serve his
probationary sentence. On January 2, 2014, the trial court lodged a
detainer on Baun based upon information that Baun had violated the
conditions of his probation. Specifically, the Jefferson County Probation
Department alleged that Baun had “failed to comply with sex offender
protocol,” inter alia, by having pornographic material on his cell phone,
speaking regularly to his girlfriend’s minor children by telephone, and
possessing photographs of his girlfriend’s children, which Baun carried in his
wallet.
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On January 29, 2014, Baun, appearing pro se, waived his right to a
Gagnon I hearing2 and admitted that he had violated his probation as
alleged. Baun was remanded to jail pending completion of a pre-sentencing
investigation and on January 30, 2014, a Jefferson County public defender
entered his appearance on Baun’s behalf. On February 5, 2014, following a
Gagnon II hearing, the trial court revoked Baun’s probation and
resentenced him to two to ten years’ incarceration.3 On February 14, 2014,
Baun filed a motion for reconsideration of his sentence. The trial court
denied the motion by order entered on February 18, 2014.
On March 4, 2014, Baun timely filed the instant appeal. On March 6,
2014, the trial court directed Baun to file a concise statement of the errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Baun timely
complied. On March 25, 2014, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Before this Court, Baun raises only one issue: “Whether the trial court
abused its discretion when it revoked Baun’s county-level probation and re-
sentenced him to serve a sentence of incarceration in [a] State Correctional
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2
See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).
3
The trial court indicated that this sentence should run consecutively to
a separate parole violation. This appeal concerns only the two- to ten-year
sentence for his probation violation.
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Institution for a minimum of two (2) years to a maximum of ten (10) years
with credit for time served.” Brief for Baun at 3.
Because counsel for Baun proceeds pursuant to Anders and
Santiago, this Court first must pass upon counsel’s petition to withdraw
before reviewing the merits of the sentencing issue presented by Baun.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). Prior to withdrawing as counsel under Anders, counsel must file a
brief that meets the requirements established by our Supreme Court in
Santiago. Pursuant thereto, the brief must provide the following
information:
(1) a summary of the procedural history and facts, with
citations to the record;
(2) reference to anything in the record that counsel believes
arguably supports the appeal;
(3) counsel’s conclusion that the appeal is frivolous; and
(4) 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 rights 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);
see Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).
Finally, to facilitate our review of counsel’s satisfaction of his obligations, he
must attach to his petition to withdraw the letter that he transmitted to his
client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.
Super. 2005).
Our review of counsel’s petition to withdraw and the accompanying
brief demonstrates that counsel has satisfied Santiago’s requirements.
Counsel has provided a procedural history detailing the events relevant to
this appeal with appropriate citations to the record. Brief for Baun at 4-5.
Counsel also has articulated Baun’s position and has analyzed the
information presented to the sentencing court in favor of his appeal with
appropriate citations to the record and case law. Ultimately, counsel has
concluded that Baun has no non-frivolous basis for challenging his sentence,
because the trial court sentenced him within the statutory limits for the
underlying conviction and there was no evidence of an abuse of discretion.
Id. at 8-9.
Counsel also has sent Baun a letter informing him that he has
identified no meritorious issues to pursue on appeal; that counsel has filed
an application to withdraw from Baun’s representation; and that Baun may
find new counsel or proceed pro se. Counsel has attached the letter to his
petition to withdraw, as required by Millisock. See Petition to Withdraw as
Counsel, 7/28/2014 (letter dated 7/24/2014). Accordingly, counsel has
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complied with Anders’ technical requirements. See Millisock, 873 A.2d
at 751.
We now must conduct an independent review of the record to
determine whether this appeal is, as counsel claims, wholly frivolous, or if
any meritorious issues may remain. Santiago, 978 A.2d at 355 (quoting
Anders, 386 U.S. at 744) (“[T]he court—not counsel—then proceeds, after a
full examination of all the proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel’s request to withdraw . . . .”).
We now turn to the lone appealable issue identified by Anders
counsel. A claim that a sentence is excessive presents a challenge to the
discretionary aspects of sentence. Commonwealth v. Ahmad, 961 A.2d
884, 886 (Pa. Super. 2008). “A challenge to the discretionary aspects of a
sentence must be considered a petition for permission to appeal, as the right
to pursue such a claim is not absolute.” Commonwealth v. McAfee,
849 A.2d 270, 274 (Pa. Super. 2004). To obtain review of the merits of a
challenge to the discretionary aspects of a particular sentence, an appellant
must include a Pa.R.A.P. 2119(f) statement in his or her brief.4 Therein,
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4
In pertinent part, Rule 2119 provides as follows:
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. The statement shall
(Footnote Continued Next Page)
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“the appellant must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.” McAfee,
849 A.2d at 274. A substantial question requires a demonstration that “the
sentence violates either a specific provision of the sentencing scheme set
forth in the Sentencing Code or a particular fundamental norm underlying
the sentencing process.” Commonwealth v. Tirado, 870 A.2d 362, 365
(Pa. Super. 2005) (quoting Commonwealth v. Mouzon, 812 A.2d 617, 627
(Pa. 2002)). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Id. (quoting Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc)) (emphasis in
Goggins).
The Rule 2119(f) statement enables this Court to determine whether
the appellant has raised a substantial question. Commonwealth v. Kiesel,
854 A.2d 530, 532 (Pa. Super. 2004). In the instant case, counsel has
provided such a statement, Brief for Baun at 6, but, at one sentence long, it
is perfunctory at best. However, if no objection is raised to a violation of
Rule 2119(f), this Court may ignore the violation. Id. at 533;
Commonwealth v. Raybuck, 915 A.2d 125, 127 n.3 (Pa. Super. 2006).
_______________________
(Footnote Continued)
immediately precede the argument on the merits with respect to
the discretionary aspects of sentence.
Pa.R.A.P. 2119(f).
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The Commonwealth, having elected not to file a brief in this matter, has
raised no objection to Baun’s failure to provide an adequate Rule 2119(f)
statement. Moreover, even if the Commonwealth had objected, we still
would be obliged to make an independent determination as to whether this
appeal is wholly frivolous. Commonwealth v. Wilson, 578 A.2d 523, 525
(Pa. Super. 1990). Consequently, we review Baun’s judgment of sentence
to determine whether it presents a substantial question regarding
excessiveness, and, if so, whether any such argument warrants the
preparation of an advocate’s brief by appointed counsel or vacatur of the
sentence.
Sentencing is a matter that is within the sound discretion of the trial
court, which will not be disturbed on appeal absent an abuse of that
discretion. Commonwealth v. Dykes, 541 A.2d 1, 6 (Pa. Super. 1988).
To constitute an abuse of discretion, a sentence must either exceed the
statutory limits or be patently excessive. Commonwealth v. White,
491 A.2d 252 (Pa. Super. 1985).
We have held as follows:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill[ ]will.
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Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (citations
and internal quotation marks omitted). “Our standard of review is limited to
determining the validity of the probation revocation proceedings and the
authority of the sentencing court to consider the same sentencing
alternatives that it had at the time of the initial sentencing.”
Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa. Super. 2006).
Upon revocation of probation, “the sentencing alternatives available to
the court shall be the same as were available at the time of initial
sentencing.” 42 Pa.C.S. § 9771. A court may impose a sentence of total
confinement for a probation revocation under the following circumstances:
(1) the 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. § 9771(c).
In this case, the trial court specifically violated Baun on his
probationary sentence for statutory sexual assault, classified as a second-
degree felony, 18 Pa.C.S. § 3122.1(a), for which he originally had been
sentenced to ten years’ probation. The maximum sentence for a second-
degree felony is ten years’ imprisonment. See 18 Pa.C.S. § 1103(2).
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In Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001),
this Court found no substantial question where the appellant had been
sentenced for two to five years’ imprisonment for a probation violation, with
the upper bound of his sentence reflecting the statutory maximum sentence
for the underlying conviction. See id. at 793. In this case, the trial court
sentenced Baun to a minimum sentence of two years, three years fewer
than the uppermost minimum it had discretion to impose. The court
imposed a maximum sentence consistent with the statutory maximum for
the underlying crime. However, in Coolbaugh, the appellant’s violations
were not technical; rather, the appellant had committed numerous crimes to
incur the revocation. Because this case involves technical violations, we will
assume arguendo that Baun can make out a substantial question, and we
will examine such merit as his challenge has.
The court imposed sentence after reviewing a pre-sentence
investigation; hearing a recommendation from Jefferson County Adult
Probation, which recommended precisely the sentence the court imposed;
viewing letters from Baun’s father and others in support of leniency; and
hearing from Baun in open court. The court then stated on the record its
reasons for imposing a two- to ten-year sentence:
Now, initially, I look at this case, it’s a felony sex case, you
already did state time. And if I just got hit on the line with it, I
would say you should do five to ten. Because you were in there,
you hadn’t completed sex offender treatment, and you’re having
sexual relations, pornographic material, and you’re having
contact with minor children—all of which are violations.
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I reviewed the presentence report, considered your age, your
background, your prior record, everything contained in that
report. Understanding all of that, the recommendation is two to
ten. Trying to weight out the fact that you’re a good employee,
have a job, and [are] doing well to that extent, at least
financially contributing on the outside, certainly are mitigating
factors.
However, I mean, in a situation where you haven’t completed
sex offender treatment—meaning you haven’t come to grips with
your underlying violation—and you’re already planning to marry
a woman who has minor children, I mean, I think looking at
everything with violations on a sexual type of case are very
serious.
So I do think that the recommendation . . . is appropriate, and I
am going to sentence you to no less [than] two to ten years in a
state correctional institution . . . .
Notes of Testimony, Gagnon II hearing, 2/5/2014, at 6-7. Based upon the
underlying history of this case and the trial court’s detailed explanation for
the sentence it imposed, we discern no abuse of the broad discretion vested
in the trial court when imposing sentence for a probation violation.
As set forth above, we have reviewed counsel’s Anders/Santiago
brief carefully, and find that it complies with the technical requirements
imposed by those precedents. We further find that counsel has taken all
steps necessary to ensure that his client’s interests are protected. We have
conducted an independent review of the record and conclude that counsel’s
characterization and analysis of the record are accurate, and that no non-
frivolous challenge to Baun’s judgment of sentence will lie. Moreover, our
review has revealed no other non-frivolous issues that merit consideration
on appeal.
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Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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