Com. v. Green, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEITH WAYNE GREEN :
:
Appellant : No. 1504 MDA 2021
Appeal from the Judgment of Sentence Entered October 12, 2021
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001080-2020
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 05, 2022
Appellant Keith Wayne Green appeals from the judgment of sentence1
entered in the Court of Common Pleas of Lackawanna County on October 12,
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Appellant was sentenced on October 12, 2021, and counsel for Appellant
filed a timely post-sentence motion on October 22, 2021. Counsel filed a
notice of appeal on November 10, 2021.
On December 9, 2021, this Court directed Appellant to show cause as
to why the appeal should not be dismissed as premature as post-sentence
motion remained pending. See Commonwealth v. Claffey, 80 A.3d 780,
783 (Pa.Super. 2013) (noting that an appeal filed while post-sentence motion
is pending is premature), appeal denied, 86 A.3d 231 (Pa. 2014); see also
Pa.R.Crim.P. 720 cmt. (“No direct appeal may be taken by a defendant while
his or her post-sentence motion is pending.”). Counsel for Appellant filed a
response on December 16, 2021, in which counsel indicated that the post-
sentence motion was denied by order of October 26, 2021, but the order had
not been entered on the docket until December 13, 2021, and was served on
December 16, 2021.
A notice of appeal must be filed within 30 days of the entry of the order
being appealed. See Pa.R.A.P. 903(a); Commonwealth v. Moir, 766 A.2d
1253 (Pa.Super. 2000). If the defendant files a timely post sentence motion,
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2021, after he entered an open guilty plea to Firearms not to be carried
without a license, 18 Pa. C.S.A. §6106(a)(1), and to Fleeing or attempting to
elude a police officer, 75 Pa. C.S.A. §3733(a). Additionally, Appellant's
counsel has filed an Application to Withdraw as Counsel and an Anders2 brief
on the basis of frivolity. After careful review, we grant counsel’s Application to
Withdraw as Counsel and affirm Appellant’s judgment of sentence.
The trial court set forth the relevant facts and procedural history herein
as follows:
On March 12, 2021, [Appellant] pled guilty in the above-
captioned case, and on October 12, 2021, was sentenced. On
November 10, 2021, [Appellant] filed a Notice of Appeal of the
judgment of sentence to the Superior Court. This opinion is filed
____________________________________________
the notice of appeal shall be filed within 30 days of the entry of the order
deciding the motion. See Pa.R.Crim.P. 720(A)(2)(a). In Commonwealth v.
Cooper, 27 A.2d 994, 1008 (Pa. 2011), our Supreme Court held that a pro se
notice of appeal does not divest the trial court of jurisdiction to act upon a
timely filed post-sentence motion later filed by counsel. Cooper, 27 A.2d at
1008. The Cooper Court held that the premature appeal should have been
treated as if it had been filed after the denial of post-sentence motions in
accordance with Pa.R.A.P. 905(a)(5).
In the instant matter, the notice of appeal was filed at a time when the
post-sentence motion had been denied but had not been entered or served;
thus, it was premature. However, the trial court served the order denying the
post-sentence motion on December 16, 2021. Therefore, the matter may be
considered timely filed in accordance with Pa.R.A.P. 905(a)(5) (providing that
“[a] notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”)
2 Anders v. California, 368 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009).
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in compliance with Rule 1925(a) of the Pennsylvania Rules of
Appellate Procedure.
I. BACKGROUND
On March 12, 2021, [Appellant] pled guilty to one count of
firearms not to be carried without a license, and one count of
fleeing or attempting to elude a police officer, and, in exchange
the numerous other charges pending against [Appellant] were
nolle prossed. These charges arose on June 30, 2020, when
[Appellant] led police on a high speed chase in Scranton and
crashed his vehicle into a house. The police found a firearm on the
floor in front of the driver's seat of [Appellant’s] vehicle.
On October 12, 2021, [Appellant] was sentenced. The court
stated that the problem for [Appellant] is that this was a crime of
violence, and that he has a serious prior record. Transcript of
October 12, 2021 Sentencing at 4-5. The court noted that even
though he might receive a favorable guideline sentence, his prior
record score of five really jacks up any sentence that is to be
imposed. Id. at 5. The court also stated that his prior convictions
are for robbery, assault, and fleeing and eluding, and go back 16
years. Id. The court imposed a 3.5 to 7 year sentence on the
firearms charge, and a 15 to 30 month sentence on the fleeing
and eluding charge, concurrent to the firearms sentence. Id. at 5-
6. The court ordered a drug and alcohol evaluation and a mental
health evaluation. Id. at 6. The court pointed out that the sentence
fell in the standard range of the sentencing guidelines, and that in
fashioning the sentence, the court gave serious consideration to
the nature and gravity of the offense, [Appellant’s] rehabilitative
needs, and the entire contents of the pre-sentence file. Id. at 7.
On October 22, 2021, [Appellant] filed a motion for
reconsideration of sentence. On November 10, 2021, [Appellant]
filed a Notice of Appeal, and on November 23, 2021, this court
ordered [Appellant] to file a concise statement of the matters
complained of on appeal in each case within 21 days pursuant to
Pa.R.A.P. 1925(b). [Appellant] filed a Statement of Matters
Complained of on Appeal on December 3, 2021.
Trial Court Opinion, filed 1/6/22 at 1-2.
Counsel filed her Application to Withdraw as Counsel and an Anders
brief with this Court on February 22, 2022. Appellant has not retained
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independent counsel, and he has not filed a pro se response to the Anders
brief. The trial court filed its Rule 1925(a) Opinion on January 6, 2022.
Before we may consider the issues raised in the Anders brief, we must
consider counsel's petition to withdraw from representation. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa.Super. 2010) (holding that,
when presented with an Anders brief, this Court may not review the merits
of the underlying issues without first passing on the request to withdraw).
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, counsel must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court's attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006)
(citation omitted).
In Santiago, the Pennsylvania Supreme Court addressed the second
requirement of Anders, i.e., the contents of an Anders brief, and required
that the brief:
(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,
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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 Anders requirements, it is then this
Court's responsibility “to conduct a simple review of the record to ascertain if
there appear 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).
Herein, counsel has complied with the procedural requirements of
Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), and their progeny. Counsel provided
Appellant with a letter advising him of his rights to retain new counsel or to
proceed pro se pursuant to Commonwealth v. Millisock, 873 A.2d 748(Pa.Super. 2005). The letter is attached to counsel’s Application to Withdraw
as Counsel. Although the petition does not contain proof of service on
Appellant, the Millisock letter references it as having been enclosed with the
letter.
Counsel’s Anders brief contains a Pa.R.A.P. 2119(f) statement, copies
of Appellant’s Pa.R.A.P. 1925(b) statement and the trial court opinion, and
proof of service on Appellant. In the brief, counsel provides a summary of the
facts and procedural history of the case and refers to relevant law that might
arguably support Appellant's issues. Counsel further states the reasons for
her conclusion that, following a conscientious examination of the record, she
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has determined the appeal is wholly frivolous. Therefore, counsel has
substantially complied with the technical requirements of Anders and
Santiago.
Accordingly, as counsel has complied with the procedural requirements
for withdrawing from representation, we will conduct an independent review
to determine whether Appellant's appeal is wholly frivolous. Commonwealth
v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super. 2018) (en banc) (quotation
omitted).
In the Anders brief, counsel sets forth the following issue that Appellant
wishes to raise:
WHETHER THE SENTENCES IMPOSED ON BOTH OFFENSES WERE
INAPPROPRIATELY EXCESSIVE, HARSH AND AN ABUSE OF
DISCRETION.
Anders brief at 4. This issue presents a challenge to the discretionary aspects
of Appellant’s sentence.
Pennsylvania law makes clear that by entering a guilty plea, a defendant
waives his right to challenge on direct appeal all defects and defenses except
the legality of the sentence and the validity of the plea. Commonwealth v.
Lincoln, 72 A.3d 606, 609 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87
A.3d 319 (2014). However, under certain circumstances, the entry of a guilty
plea will not preclude a challenge to the discretionary aspects of sentencing.
Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa.Super. 1994). “The
determination of whether discretionary aspects of sentencing may be
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challenged after a guilty plea is entered depends upon the actual terms of the
plea bargain, specifically, to what degree a sentence agreement has been
reached.” Id. at 18. As this Court has explained:
where a defendant pleads guilty pursuant to a plea agreement
specifying particular penalties, the defendant may not seek a
discretionary appeal relating to those agreed-upon penalties.
Permitting a defendant to petition for such an appeal would
undermine the integrity of the plea negotiation process and could
ultimately deprive the Commonwealth of sentencing particulars
for which it bargained.
Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa.Super. 2009)
(citations omitted).
In the matter sub judice, Appellant’s plea agreement did not specify any
particular sentence; therefore, he may present this challenge to the
discretionary aspects of his sentence. However, “[t]he right to appellate
review of the discretionary aspects of a sentence is not absolute, and must be
considered a petition for permission to appeal.” Commonwealth v. Conte,
198 A.3d 1169, 1173 (Pa.Super. 2018), appeal denied, 206 A.3d 1029 (Pa.
2019).
An appellant challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test: “(1) the appeal
is timely; (2) the appellant has preserved his issue; (3) his brief includes a
concise statement of the reasons relied upon for allowance of an appeal with
respect to the discretionary aspects of his sentence; and (4) the concise
statement raises a substantial question whether the sentence is inappropriate
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under the Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488
(Pa.Super. 2019); see also Pa.R.A.P. 2119(f) (stating that an appellant who
challenges the discretionary aspects of a sentence “shall set forth in a separate
section of the brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence”).
Appellant preserved a challenge to the discretionary aspects of his
sentence in his Petition for Reconsideration of Sentence, and he filed a timely
notice of appeal. Also, the Anders brief contains a Pa.R.A.P 2119(f)
statement. Thus, we next consider whether Appellant has raised a substantial
question.
In the Pa.R.A.P. 2119(f) statement, counsel avers that Appellant’s
sentences were manifestly harsh and excessive because the trial court did not
sufficiently consider that he had done well “on the street for twenty months”
which demonstrates he is capable of conforming to living a life free of crime.
Anders brief at 9-10. Thus, we find Appellant has raised a substantial
question. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014) (“This Court has held that an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.”). We, therefore, proceed to review Appellant's
substantive argument.
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Challenges to the discretionary aspects of sentence are reviewed for an
abuse of discretion. Commonwealth v. Moury, 992 A.2d 162, 169 (Pa.
Super. 2010). As we reiterated in Moury:
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court recently
offered: An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it.
Id. at 169-70 (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (internal citations omitted)).
The record reflects that, Appellant’s arguments to the contrary, the trial
court considered the nature of and the circumstances surrounding Appellant’s
crimes. Appellant pled guilty to the aforementioned crimes on March 12,
2021. At sentencing, the trial court had the benefit of a presentence
investigation (PSI) report. N.T. 10/12/21, at 3, 7. When the trial court has
the benefit of a PSI report, “we presume that [it] was aware of relevant
information regarding the defendant's character and weighed those
considerations along with any mitigating factors” when imposing sentence.
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Commonwealth v. Sexton, 222 A.3d 405, 422 (Pa.Super. 2019) (citation
omitted).
Prior to imposing its sentence, the trial court indicated it was troubled
by both the fact that this matter involved a crime of violence and Appellant’s
serious prior record score of five. Id. at 4-5. The trial court further noted
Appellant had prior convictions for “robbery, assault, fleeing and eluding” and
stressed that “the events of November 30, 2020, are something that we can’t
just forget about and minimize.” Id. at 5. Significantly, although the trial
court explained that in light of his prior record any sentence would need to be
substantial, it sentenced Appellant in the standard range of the Sentencing
Guidelines and ordered that the sentences were to run concurrently to one
another. Id. at 5-6.
In fashioning Appellant’s sentence, the trial court indicated it had given
serious consideration to the nature and gravity of Appellant’s offenses, his
rehabilitative needs, and the entire contents of the pre-sentence file which
dated back to 2005. Id. at 7. Thus, in light of the foregoing, we conclude
the trial court did not abuse its discretion in sentencing Appellant to an
aggregate term of three and one half (3 ½) to seven (7) years in prison for
his crimes. Clearly, the trial court could have sentenced in the aggravated
range based on Appellant’s prior record.
After examining the issue contained in the Anders brief, we agree with
counsel that the instant appeal is wholly frivolous. Furthermore, after
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conducting a full examination of all the proceedings as required pursuant to
Anders, we discern no non-frivolous issues to be raised on appeal. See
Yorgey, 188 A.3d at 1195. Thus, we grant counsel's application to withdraw
and affirm Appellant's judgment of sentence.
Application to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2022
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