Com. v. Flowers, D.

J-S74034-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARNELL FLOWERS, :
:
Appellant : No. 1329 EDA 2014
Appeal from the Judgment of Sentence March 21, 2014,
Court of Common Pleas, Montgomery County,
Criminal Division at No. CP-46-CR-0000061-2012
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARNELL FLOWERS, :
:
Appellant : No. 1330 EDA 2014
Appeal from the Judgment of Sentence March 21, 2014,
Court of Common Pleas, Montgomery County,
Criminal Division at No. CP-46-CR-0004340-2012
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARNELL FLOWERS, :
:
Appellant : No. 1331 EDA 2014
Appeal from the Judgment of Sentence March 21, 2014,
Court of Common Pleas, Montgomery County,
Criminal Division at No. CP-46-CR-0007596-2011
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
*Retired Senior Judge assigned to the Superior Court.
J-S74034-14
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 14, 2015
Darnell Flowers appeals from the judgment of sentence entered
following his convictions of three counts of retail theft, 18 Pa.C.S.A. §
3929(a)(1). For the following reasons, we affirm.
We begin with a brief factual and procedural background. Between
September 2011 and September 2012, the Commonwealth charged Flowers
in three separate incidents with retail theft and other related charges. On
January 28, 2013, Flowers entered an open guilty plea to three counts of
retail theft. On March 21, 2014, the trial court sentenced Flowers to two
consecutive sentences of eleven and a half to twenty-three months of
imprisonment, followed by four years of probation. Flowers filed a timely
post-sentence motion seeking reconsideration of his sentence, which the
trial court denied. His court-appointed counsel (“Counsel”) timely filed a
notice of appeal. In response to the trial court’s directive to file a statement
of matters complained of on appeal, Counsel filed a statement of his intent
to file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4),1 and identified one
issue that could arguably support an appeal: whether the aggregate
1
“In a criminal case, counsel may file of record and serve on the judge a
statement of intent to file an Anders/McClendon brief in lieu of filing a
Statement. If, upon review of the Anders/McClendon brief, the appellate
court believes that there are arguably meritorious issues for review, those
issues will not be waived; instead, the appellate court may remand for the
filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or
both. Upon remand, the trial court may, but is not required to, replace
appellant’s counsel.” Pa.R.A.P. 1925(c)(4).
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sentence was unduly harsh and excessive, which Flowers also raised in his
post-sentence motion. Concise Statement, 6/10/14. In response, the trial
court authored an opinion discussing the issue Counsel identified and urged
this Court to conclude that it did not amount to a “‘non-frivolous’ claim for
relief.” Trial Court Opinion, 6/30/14, at 3.
Counsel then filed his request to withdraw and Anders brief with this
Court. Upon our review, we concluded that Counsel could not have
performed the thorough review of the record, as is required by Anders,
because the transcript from his guilty plea proceeding was not included in
the certified record on appeal; accordingly, we denied Counsel’s petition to
withdraw and remanded with instructions for Counsel to obtain the missing
notes of testimony and file either an advocate's brief or another Anders
brief following his review of a complete record. Commonwealth v.
Flowers, 113 A.3d 1246, 1250-51 (Pa. Super. 2015).
Counsel has complied and filed an advocate’s brief on Flowers’ behalf.2
He presents only one issue for our review, which he presents as follows:
“President Judge Furber abused his discretion when he sentenced [Flowers]
to an aggregate term of twenty-three to forty-six months of total
confinement to be followed by four years of probation with respect to
2
The Montgomery County Public Defender’s Office has represented Flowers
throughout the course of this appeal, although the attorney who filed the
Anders brief and petition to withdraw evidently has since left the
Montgomery County Public Defender’s Office and another member thereof
has filed this brief on Flowers’ behalf. See Flowers’ Brief at 9.
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[Flowers’] open plea to three counts of retail theft.” Flowers’ Brief at 7. This
argument challenges the discretionary aspects of Flowers’ sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa. Super. 2011) (citation omitted).
An appellant challenging the discretionary aspects of
his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test: (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.A.
§ 9781(b). Commonwealth v. Evans, 901 A.2d
528, 533 (Pa. Super. 2006).
Id.As noted above, Flowers’ appeal was timely filed and he filed a post-
sentence motion seeking reconsideration of his sentence. However, Flowers
has not included a statement in his brief pursuant to Pa.R.A.P. 2119(f).
Furthermore, the Commonwealth has objected to Flowers’ failure to include
a Pa.R.A.P. 2119(f) statement in his brief. Commonwealth’s Brief at 5.
Where an appellant has failed to include a Rule 2119(f) statement in his
brief and the Commonwealth objects to this omission, this Court is precluded
from reviewing the merits of the claim and we must deny the request for
appeal. Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).
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Even if Flowers had included the requisite Rule 2119(f) statement in
his brief, he would still not be entitled to relief. Flowers argues that in
consideration of certain unfortunate life circumstances and his willingness to
plead guilty to the offenses, the imposition of consecutive sentences was
unreasonable. Flowers’ Brief at 11-15. Flowers also argues that the trial
court erred by not focusing on Flowers’ attempts in the last five or six years
to “turn the corner” and abandon his life of crime. Id. at 15-16. Both of
these allegations amount to a claim that the trial court did not give adequate
weight to certain mitigating factors. “[T]his Court has held on numerous
occasions that a claim of inadequate consideration of mitigating factors does
not raise a substantial question for our review.” Commonwealth v.
Swope, 123 A.3d 333, 339, (Pa. Super. 2015); see also Commonwealth
v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015).
We recognize that a claim that the trial court failed to consider
mitigating factors in conjunction with an excessiveness claim may present
a substantial question so as to invoke our review. See Caldwell, 117 A.3d
at 770. Flowers does not raise an excessiveness claim in conjunction with
this allegation; he simply alleges that his sentence was unreasonable in light
of these mitigating factors. Flowers’ Brief at 12. Nevertheless, even if
Flowers had specifically coupled this claim with an allegation of
excessiveness, his claim would not succeed. The record reveals that the trial
court did, in fact, take Flowers’ familial background and upbringing into
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account when sentencing Flowers. N.T., 3/21/14, at 13-14. The trial court
also explicitly stated that took into consideration the argument made by
Flowers’ counsel, which emphasized the same aspects of Flowers’ past that
Flowers discusses in his brief on appeal. See id. at 6-10, 14; Flowers’ Brief
at 12-13. There is, therefore, no merit to this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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