Com. v. Mcdonald, V.

J-S44008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VERNEL J. MCDONALD,
Appellant No. 3285 EDA 2016
Appeal from the Judgment of Sentence Entered October 13, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011816-2012
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 16, 2017
Appellant, Vernel J. McDonald, appeals from the judgment of sentence
of an aggregate term of 7½ to 15 years’ incarceration, imposed after a jury
convicted him of voluntary manslaughter, carrying a firearm without a
license (hereinafter, “VUFA 6106”),1 carrying a firearm on a public street in
Philadelphia (hereinafter, “VUFA 6108”), and possessing an instrument of
crime (hereinafter, “PIC”). On appeal, Appellant seeks to challenge the
discretionary aspects of his VUFA 6106 sentence. Additionally, his counsel,
Stephen T. O’Hanlon, Esq., seeks to withdraw his representation of Appellant
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
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1
We use VUFA 6106 to refer to the fact this offense is a violation of section
6106 of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6127.
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review, we affirm Appellant’s judgment of sentence and grant counsel’s
petition to withdraw.
A detailed recitation of the facts underlying Appellant’s convictions is
unnecessary to our disposition of his appeal. We only note that on June 13,
2012, Appellant shot and killed Tyrell Brown during a botched drug deal.
Appellant was tried before a jury, and on July 2, 2014, he was convicted of
the above-stated offenses. On September 16, 2014, the court sentenced
him to 5 to 10 years’ incarceration for his voluntary manslaughter
conviction, concurrent terms of 1 to 2 years’ imprisonment for each of his
PIC and VUFA 6108 convictions, and a consecutive term of 2½ to 5 years’
incarceration for his VUFA 6106 offense. Therefore, Appellant’s aggregate
sentence was 7½ to 15 years’ incarceration.
Appellant filed a timely notice of appeal, and after this Court affirmed
his September 16, 2014 judgment of sentence, our Supreme Court denied
his subsequent petition for allowance of appeal. See Commonwealth v.
McDonald, 125 A.3d 457 (Pa. Super. 2015) (unpublished memorandum),
appeal denied, 129 A.3d 1242 (Pa. 2015).
Appellant thereafter filed a petition under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and Attorney O’Hanlon was appointed
to represent him. In an amended petition filed on June 1, 2016, Attorney
O’Hanlon asserted that Appellant’s trial counsel was ineffective for not
objecting to the sentencing court’s incorrectly utilizing a deadly-weapon-
enhancement (DWE) sentencing guideline range with respect to Appellant’s
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conviction for VUFA 6106. On October 13, 2016, the PCRA court vacated
Appellant’s judgment of sentence and resentenced him, that same day, to a
term of 5 to 10 years’ incarceration for voluntary manslaughter, a
concurrent term of 6 to 12 months’ for PIC, a concurrent term of 1 to 2
years’ incarceration for VUFA 6108, and a consecutive term of 2½ to 5
years’ incarceration for VUFA 6106. In other words, the court imposed the
same aggregate sentence of 7½ to 15 years’ incarceration.
Appellant filed a timely post-sentence motion, which the court denied.
He then filed a timely notice of appeal. When the court directed Appellant to
file a Pa.R.A.P. 1925(b) statement, Attorney O’Hanlon submitted a Rule
1925(c)(4) statement of his intent to file an Anders/Santiago brief. On
January 23, 2017, Attorney O’Hanlon filed with this Court a petition to
withdraw from representing Appellant. He also filed an Anders/Santiago
brief, asserting that the single sentencing issue Appellant seeks to raise on
appeal is frivolous, and that Appellant has no other non-frivolous issues that
counsel could present herein.
When faced with a petition to withdraw and Anders/Santiago brief,
[t]his Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
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(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. 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 right 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.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders/Santiago, this Court must then “conduct 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) (citations and footnote omitted).
In this case, Attorney O’Hanlon’s Anders/Santiago brief complies
with the above-stated requirements. Namely, he includes a summary of the
relevant factual and procedural history, he refers to portions of the record
that could arguably support Appellant’s sentencing claim, and he sets forth
his conclusion that Appellant’s appeal is frivolous. He also explains his
reasons for reaching that determination, and supports his rationale with
citations to the record and pertinent legal authority. Attorney O’Hanlon also
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states in his petition to withdraw that he has supplied Appellant with a copy
of his Anders/Santiago brief, and he attached a letter directed to Appellant
in which he informs Appellant of the rights enumerated in Nischan.
Accordingly, counsel has complied with the technical requirements for
withdrawal. We will now independently review the record to determine if
Appellant’s sentencing issue is frivolous, and to ascertain if there are any
other non-frivolous issues he could pursue on appeal.
Appellant seeks to argue that the trial court abused its discretion by
resentencing him to the same term of incarceration for VUFA 6106 as the
court had originally imposed when utilizing the incorrect DWE guideline
ranges. Appellant’s argument constitutes a challenge to the discretionary
aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Attorney O’Hanlon preserved Appellant’s sentencing claim in a
post-sentence motion, and he filed a timely appeal on Appellant’s behalf.
However, counsel did not include a Rule 2119(f) statement in his
Anders/Santiago brief. Nevertheless, this Court has overlooked the
omission of a Rule 2119(f) statement where counsel is seeking to withdraw.
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009); see also
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (“Where
counsel files an Anders brief, this Court has reviewed the matter even
absent a separate [Rule] 2119(f) statement.”). Therefore, “we do not
consider counsel’s failure to submit a Rule 2119(f) statement as precluding
review of whether Appellant’s issue is frivolous.” Zeigler, 112 A.3d at 661.
In assessing Appellant’s claim that the court erred in resentencing
him, we apply the following, well-settled standard of review:
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.
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.
1999) (en banc) (quotations marks and citations omitted). See
also Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
(2007) (citation omitted) (“An abuse of discretion may not be
found merely because an appellate court might have reached a
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different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice bias or ill-will, or such
a lack of support as to be clearly erroneous.”).
Commonwealth v. Coulverson, 34 A.3d 135, 143–44 (Pa. Super. 2011).
After reviewing the record in this case, it is clear that Appellant cannot
demonstrate an abuse of discretion by the trial court in resentencing him to
the same term of incarceration for VUFA 6106 as the court had originally
imposed under the DWE sentencing guidelines. The offense gravity score for
VUFA 6106 is 9. See N.T. Resentencing, 10/13/16, at 6. Appellant’s prior
record score at the time of his resentencing hearing was 1. Id. Therefore,
under the non-DWE Sentencing Guidelines, Appellant faced a standard
range, minimum sentence of 18 to 30 months’ incarceration for that offense.
Id. He received a minimum sentence of 30 months’ incarceration, thus
constituting a standard range sentence.
We recognize that at the resentencing hearing, Appellant stressed that
his original VUFA 6106 sentence was in the mitigated range of the DWE
sentencing guidelines. See id. at 7. Accordingly, Appellant argued that he
should again receive a mitigated range sentence under the non-DWE
sentencing guidelines, which would mean a minimum term of 6 to 12
months’ incarceration. Id. However, the court explained that it “was not
[the court’s] intent to sentence [Appellant] in the mitigated range” at the
original sentencing proceeding; instead, it was simply a coincidence that the
sentence the court felt was appropriate, i.e., 2½ to 5 years’ incarceration,
fell within the mitigated (rather than standard) range of the DWE guidelines.
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Id. at 9, 14. The court stated that it still believed a term of incarceration of
2½ to 5 years was appropriate for Appellant’s VUFA 6106 offense, despite
that that sentence fell within the standard range of the non-DWE
guidelines. Id. at 9.
In regard to why this sentence was appropriate, the trial court referred
to the reasons it stated at Appellant’s initial sentencing hearing, including
that Appellant had made the conscious decision “to load [himself] with a
gun.” Id. at 8. At the original sentencing hearing, the court had elaborated
that, even if Appellant’s act of shooting the victim was “spur-of-the-
moment[,]” he had consciously decided to illegally carry a loaded gun on the
day of the shooting. N.T. Sentencing, 9/16/14, at 33. The court stressed
that Appellant’s decision to carry that gun, and his “foresight to bring
someone with [him] that also had a loaded gun[,]” had “put the chain of
events into action.” Id. at 33-34. The court also pointed out that Appellant
“at any point … could have made the decision to stop it before [he] got
there[,]” yet he chose not to. Id. at 34. For those reasons, the court
believed a consecutive term of 2½ to 5 years’ incarceration for Appellant’s
VUFA 6106 conviction was appropriate, and it maintained that belief at the
time of Appellant’s resentencing.
We do not ascertain any unreasonableness in the court’s sentencing
decision. Clearly, at Appellant’s resentencing hearing, the court considered
the sentencing guidelines, and was cognizant of the fact that the term of
incarceration it was imposing was a standard, rather than mitigated, range
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sentence under the non-DWE guidelines. The court was not bound to
impose a mitigated range term of incarceration simply because its original
sentence was within the mitigated range of the DWE guidelines. See
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (“When
imposing a sentence, the sentencing court is required to consider the
sentence ranges set forth in the Sentencing Guidelines, but it is not bound
by the Sentencing Guidelines.”) (citations omitted).
Therefore, we agree with Attorney O’Hanlon that Appellant’s challenge
to his VUFA 6106 sentence is frivolous. Additionally, our independent review
of the record reveals no other non-frivolous issues that Appellant could
present herein. Consequently, we affirm his judgment of sentence and grant
counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2017
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