Com. v. Cacurak, P.

J-S83038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHILIP MARTIN CACURAK, :
:
Appellant : No. 1036 WDA 2018
Appeal from the Judgment of Sentence Entered May 25, 2018
in the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0001148-2017
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 12, 2019
Philip Martin Cacurak (“Cacurak”) appeals from the judgment of
sentence imposed following his conviction of failure to comply with registration
requirements.1 Additionally, Cacurak’s counsel, Jennifer L. Westrick, Esquire
(“Attorney Westrick”), has filed a Petition to Withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). We grant Attorney Westrick’s Petition to Withdraw and affirm
Cacurak’s judgment of sentence.
On May 22, 2018, following a jury trial, Cacurak was convicted of failure
to comply with his registration requirements pursuant to the Sexual Offenders
Registration and Notification Act (“SORNA”). The trial court sentenced
Cacurak to a term of 6 months to 2 years, less one day, in prison, followed by
three years of probation. Cacurak filed a post-sentence Motion challenging,
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1 See 18 Pa.C.S.A. § 4915.1(a)(1).
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inter alia, the sufficiency of the evidence supporting his conviction. The trial
court denied Cacurak’s Motion. Cacurak, via Attorney Westrick, filed a timely
Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal. Attorney Westrick subsequently filed an
Anders Brief and a Petition to Withdraw as counsel. Cacurak neither filed a
pro se brief, nor retained alternate counsel for this appeal.
Before addressing Cacurak’s issues on appeal, we must determine
whether Attorney Westrick has complied with the dictates of Anders and its
progeny in petitioning to withdraw from representation. See
Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009)
(stating that “[w]hen 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 that an appeal is
frivolous and wishes to withdraw from representation, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted).
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Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders brief 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, our review of the Anders Brief and the Petition to
Withdraw reveals that Attorney Westrick has substantially complied with each
of the requirements of Anders/Santiago. See Commonwealth v. Wrecks,
934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Attorney Westrick
indicates that she has made a conscientious examination of the record and
determined that an appeal would be frivolous. Further, Attorney Westrick’s
Anders Brief comports with the requirements set forth by the Supreme Court
of Pennsylvania in Santiago. Finally, Attorney Westrick provided Cacurak
with a copy of the Anders Brief; advised Cacurak of his rights to retain new
counsel or to raise any additional points deemed worthy of the Court’s
attention; and attached a copy of the letter sent to Cacurak to the Anders
Application for Leave to Withdraw, as required by Commonwealth v.
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Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).2 Thus, Attorney Westrick
has complied with the procedural requirements for withdrawing from
representation. We now address the issues that, according to Attorney
Westrick, arguably support Cacurak’s appeal.
Attorney Westrick states that Cacurak wishes to raise the following
issues for our review:
1. Was the evidence presented at trial sufficient to support the
verdict against [Cacurak]?
2. Was the imposed sentence proper?
Anders Brief at 5.
In his first issue, Cacurak argues that the Commonwealth failed to
present sufficient evidence to establish that he failed to comply with his
registration requirements. See id. at 10-14. Cacurak alleges that his extreme
mental anxiety prevented him from being able to register his new employment
with the Pennsylvania State Police. Id. at 12-13. Cacurak claims that he
drove to the Pennsylvania State Police Barracks in Indiana, PA, but his fear of
being arrested prevented him from entering the building and registering. Id.
We apply the following standard of review when considering a challenge
to the sufficiency of the evidence:
[W]hether[,] viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
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2 While the Supreme Court in Santiago set forth the above-mentioned
requirements for an Anders brief, the holding did not abrogate the notice
requirements set forth in Millisock that remain binding legal precedent.
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crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact[,] while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, or part or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
Cacurak’s conviction under 18 Pa.C.S.A. § 4915.1(a)(1) required the
Commonwealth to prove that Cacurak (1) was subject to the registration
requirements of SORNA, (2) had a “change in the location or entity in which
[he was] employed,” and (3) knowingly failed to appear in person at an
approved registration site to notify the Pennsylvania State Police of that
change, (4) within three days of the change. See 18 Pa.C.S.A. §§ 9799.13,
4915.1(a)(1), 9799.15(g)(3).
Here, Cacurak stipulated that he was subject to registration under
SORNA at the time of the current offense. See N.T., 5/21/18, at 14.
Additionally, Cacurak testified that he was aware that he had to register his
new employment. See id. at 45-46, 47. Further, Cacurak acknowledged that
he signed a Notice advising him of his registration requirements, that he was
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aware of the three-day registration requirement for new employment, and
that he refused to register because he believed it was against his constitutional
rights. Id. at 51, 54, 55.
Moreover, Cacurak’s parole officer, James D. Decker (“Decker”),
testified that on June 5, 2017, Cacurak informed Decker that he had started
a new job. Id. at 26-27. Decker stated that despite advising Cacurak of his
SORNA registration requirements on several occasions, as of June 26, 2017,
Cacurak had not registered his new employment. Id. at 26-28.
Thus, the evidence was sufficient to prove that Cacurak was subject to
registration under SORNA, and that he knowingly failed to register his new
employment within three days of his new employment. Accordingly, Cacurak’s
first issue is wholly frivolous.
In his second issue, Cacurak challenges the discretionary aspects of his
sentence. “A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
167 A.3d 793, 815 (Pa. Super. 2017). Prior to reaching the merits of a
discretionary sentencing issue,
[w]e 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.A. § 9781(b).
Grays, 167 A.3d at 815-16 (citation omitted).
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Here, Cacurak filed a timely Notice of Appeal and preserved his claim in
his post-sentence Motion. Although we note the absence of the requisite
Pa.R.A.P. 2119(f) statement in the Anders Brief, “[w]here counsel files an
Anders brief, this Court has reviewed the matter even absent a separate
Pa.R.A.P. 2119(f) statement. Hence, we do not consider counsel’s failure to
submit a Rule 2119(f) statement as precluding review of whether [Cacurak’s]
issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.
Super. 2015) (citations omitted). Accordingly, we will conduct an independent
review of the record to determine whether Cacurak’s sentencing claim is
frivolous.
When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation. It must be
demonstrated that the court considered the statutory factors
enunciated for determination of sentencing alternatives, and the
sentencing guidelines. Additionally, the court must impose a
sentence which is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the
victim and the community, and the rehabilitative needs of the
defendant.
Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)
(internal citations and quotation marks omitted). “[W]here a sentence is
within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.” Commonwealth v.
Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
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Initially, the trial court had the benefit of a pre-sentence investigation
report (“PSI”), which the court expressly stated it had considered prior to
imposing sentence. N.T., 5/25/18, at 3. “[W]here the trial court is informed
by a [PSI], it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed.” Commonwealth v. Downing, 990
A.2d 788, 794 (Pa. Super. 2010) (quotation marks and citations omitted).
Moreover, the trial court considered the sentencing guidelines,
Cacurak’s probation history, including two revocations, Cacurak’s
rehabilitative needs, and the protection of the community. See N.T., 5/25/18,
at 3; Trial Court Opinion, 9/17/18, at 8-9. Thus, the trial court properly
considered all of the statutory factors before sentencing Cacurak. See
McClendon, supra. Moreover, the sentence was within the standard range
of the guidelines. See Moury, supra. Accordingly, we conclude that the trial
court’s sentence was not improperly excessive, and Cacurak’s discretionary
sentencing challenge is wholly frivolous.
Finally, our independent review of the record discloses no additional
non-frivolous issues that could be raised on appeal. We therefore grant
Attorney Westrick’s Petition, and affirm Cacurak’s judgment of sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/2019
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