Com. v. Josephs, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRENTON ANDRE JOSEPHS
Appellant No. 54 MDA 2016
Appeal from the Judgment of Sentence November 23, 2015
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005777-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRENTON ANDRE JOSEPHS
Appellant No. 55 MDA 2016
Appeal from the Judgment of Sentence November 23, 2015
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001735-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 19, 2016
Brenton Andre Josephs (“Appellant”) appeals from the November 23,
2015 judgment of sentence entered in the Berks County Court of Common
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Pleas following his guilty plea convictions for criminal mischief1 at Docket No.
CP-06-CR-0005777-2014, and delivery of a controlled substance2 at Docket
No. CP-06-CR-0001735-2015. Appellant’s counsel has filed an Anders3
brief, together with a petition to withdraw as counsel. We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
On November 23, 2015, Appellant entered an open guilty plea to one
count of criminal mischief and one count of delivery of a controlled
substance stemming from separate incidents. On the same day, the trial
court sentenced Appellant to one to seven years’ incarceration on the
delivery of a controlled substance conviction and a concurrent sentence of
six to twelve months’ incarceration on the criminal mischief conviction.
Appellant filed a post-sentence motion requesting reconsideration or
modification of the sentence imposed. The trial court denied the post-trial
motion on December 9, 2016. On January 8, 2016, Appellant filed a timely
notice of appeal,4 and on May 23, 2016, counsel filed the Anders brief
together with an application to withdraw as counsel. Appellant filed no
further submissions either pro se or through privately-retained counsel.
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1
18 Pa.C.S. § 3304.
2
35 P.S. § 780-113(a)(30).
3
Anders v. California, 386 U.S. 738 (1967).
4
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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As previously noted, Appellant’s counsel has filed an application
seeking to withdraw from representation pursuant to Anders v. California
and its Pennsylvania counterpart, Commonwealth v. Santiago.5 Before
addressing the merits of Appellant’s underlying issues presented, we must
first pass on counsel’s petition to withdraw. 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; (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 must also provide the appellant with a
copy of the Anders brief, together with a letter that advises the appellant of
his or her 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). Substantial compliance with these requirements is
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5
978 A.2d 349 (Pa.2009).
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sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super.2007). “After establishing that the antecedent requirements have
been met, this Court must then make an independent evaluation of the
record to determine whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).
Instantly, counsel contemporaneously filed a petition to withdraw as
counsel with the Anders brief. The petition states counsel’s determination
that no non-frivolous appellate issues exist. See Petition to Withdraw As
Counsel, ¶ 4. The petition further explains that counsel notified Appellant of
the withdrawal request and forwarded a copy of the brief to Appellant
together with a letter explaining his right to proceed pro se or with new,
privately-retained counsel to raise any additional points or arguments that
Appellant believed had merit. See id. at ¶ 5; see also Letter to Appellant,
May 17, 2016. In the Anders brief, counsel provides a summary of the
facts and procedural history of the case with citations to the record, refers to
evidence of record that might arguably support the issue raised on appeal,
provides citations to relevant case law, and states her conclusion that the
appeal is wholly frivolous and her reasons therefor. See Anders Brief, pp.
6-17. Accordingly, counsel has substantially complied with the requirements
of Anders and Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issue of
arguable merit raised in the Anders brief:
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Whether the sentencing court abused its discretion in imposing a
sentence of one (1) to seven (7) years of incarceration for
[d]elivery of [m]arijuana and a concurrent sentence of six (6) to
twelve (12) months incarceration for [c]riminal [m]ischief where
the sentence was manifestly excessive and fails to consider the
fundamental norms underlying the Sentencing Code, including
mitigating factors such as the Appellant’s good work history, his
care for two minor children and his taking responsibility for his
actions in entering a guilty plea?
Anders Brief, p. 5.
This claim raises a challenge to the discretionary aspects of Appellant’s
sentence. “Challenges to the discretionary aspects of sentencing do not
entitle a petitioner to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
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.
Allen, 24 A.3d at 1064.
Here, Appellant filed a timely notice of appeal and preserved his
discretionary aspects of sentencing issue in a motion for reconsideration of
sentence. Further, Appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
See Anders Brief, pp. 11-12. Accordingly, we now determine whether
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Appellant has raised a substantial question for review and, if so, proceed to
a discussion of the merits of the claim. See Pa.R.A.P. 2119(f);
Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).
“A substantial question will be found where the defendant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the [sentencing] code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v.
Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see
also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a
substantial question on a case-by-case basis.” Id. A bald or generic
assertion that a sentence is excessive does not, by itself, raise a substantial
question justifying this Court’s review of the merits of the underlying claim.
Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 701
(Pa.Super.2013). Further, “[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. Disalvo, 70
A.3d 900, 903 (Pa.Super.2013); see also Commonwealth v. Ratushny,
17 A.3d 1269, 1273 (Pa.Super.2011) (“argument that the sentencing court
failed to adequately consider mitigating factors in favor of a lesser sentence
does not present a substantial question appropriate for our review.”);
Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa.Super.2006)
(“[A]ppellant’s contention that the trial court did not adequately consider a
mitigating circumstance when imposing sentence does not raise a
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substantial question sufficient to justify appellate review of the merits of
such claim.”).
“[A] substantial question exists when a sentencing court imposed a
sentence in the aggravated range without considering mitigating factors.”
Commonwealth v. Rhoades, 8 A.3d 912, 919 n.12 (Pa.Super.2010) (citing
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003))
(emphasis in original). However, “where 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).
In his Pa.R.A.P. 2119(f) statement and his brief, Appellant alleges that
the trial court abused its discretion by sentencing him without considering
certain mitigating factors. See Anders Brief, p. 9.6 Such a claim does not
raise a substantial question for review. See Disalvo, supra.7
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6
The mitigating factors Appellant claims the trial court failed to consider
include his good work history, his care for his children and his niece and
nephew, his statement of remorse at his sentencing, and his taking
responsibility by pleading guilty. See Anders Brief, p. 14.
7
We further note Appellant’s claim does not allege that the sentencing court
departed from the standard range and sentenced Appellant in the
aggravated range of the sentencing guidelines. It alleges merely that
Appellant received a sentence at the higher end of the standard range.
Therefore, this claim does not present a substantial question for this Court’s
review as an unexplained departure from the sentencing guidelines coupled
with a claim of excessiveness. See Moury, supra.
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Moreover, even had Appellant stated a substantial question for review,
we would affirm on the merits. We review discretionary aspects of sentence
claims under the following standard of review:
[S]entencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias
or ill will. It is more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Initially, where a sentencing judge had the benefit of a presentence
investigation report, it is presumed that the judge was aware of all relevant
information regarding the defendant’s character and weighed those
considerations along with any mitigating factors. Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa.Super.2004).
Additionally, the sentencing guidelines are merely advisory in nature.
See Commonwealth v. Walls, 926 A.2d 957, 964 (Pa.2007) (“[T]he
guidelines have no binding effect, create no presumption in sentencing, and
do not predominate over other sentencing factors – they are advisory
guideposts that are valuable, may provide an essential starting point, and
that must be respected and considered; they recommend, however, rather
than require a particular sentence.”). “[I]t is well-established that a
sentencing court can impose a sentence that is the maximum period
authorized by the statute, 42 Pa.C.S. § 9756(a).” Commonwealth v.
Saranchak, 675 A.2d 268, 277 n. 17 (Pa.1996).
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Our review of the sentencing transcript reveals that the lower court did
not abuse its discretion. See generally N.T. 11/23/2015. Instead, the trial
court imposed a sentence that was consistent with the protection of the
public, took into account the gravity of the offense as it related to the impact
on the life of the victim and on the community, and considered the
Appellant’s rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id.
The trial court explained that, in sentencing Appellant to a standard
range sentence, it took into consideration the nature and circumstances of
the offense, the history and characteristics of Appellant, the Sentencing
Guidelines, the pre-sentence investigation report, and the testimony from
the sentencing hearing.8 See Trial Court Pa.R.A.P. 1925(a) Opinion, filed
March 29, 2016, pp. 4-5; N.T. 11/23/2015, p. 15.
We find no abuse of discretion in the trial court’s imposition of
Appellant’s standard range sentence. Accordingly, Appellant’s excessiveness
claim fails on the merits.
We agree with counsel that Appellant’s claim is wholly frivolous.
Moreover, our independent review of the record has revealed no other
preserved issues of arguable merit. Accordingly, we affirm the judgment of
sentence.
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8
Defense counsel expressly informed the trial court that Appellant cared for
his two children, his niece, and his nephew. See N.T. 11/23/2015, pp. 11-
12.
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Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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