Com. v. Peck, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MICHAEL WILLIAM PECK, :
:
Appellant : No. 1149 MDA 2015
Appeal from the Judgment of Sentence January 16, 2014
in the Court of Common Pleas of Perry County,
Criminal Division, No(s): CP-50-CR-0000168-2013
BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2016
Michael William Peck (“Peck”) appeals from the judgment of sentence
imposed following his guilty plea to failure to comply with registration
requirements for sexual offenders.1 Additionally, William M. Shreve, Esquire
(“Attorney Shreve”), Peck’s counsel, has filed a Petition to Withdraw as
counsel and an accompanying brief pursuant to Anders v. California, 386
U.S. 738 (1967) (hereinafter the “Anders Brief”). We grant Attorney
Shreve’s Petition to Withdraw, and affirm Peck’s judgment of sentence.
In 2011, pursuant to a negotiated plea agreement, Peck pled guilty to
indecent assault and received a sentence of two years of probation. At the
time of sentencing, Peck was advised that, due to the nature of his crime, he
might be required to register as a sexual offender. Subsequently, Peck was
1
See 18 Pa.C.S.A. § 4915.1(a)(3).
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required to register as a sexual offender.2 According to the Affidavit of
Probable Cause, Peck updated his registration on December 21, 2012, but
provided inaccurate information regarding his place of employment and
residence. Peck was subsequently charged with failure to provide accurate
registration information, a felony of the first degree.3 On December 10,
2013, pursuant to a negotiated plea agreement, Peck pled guilty to providing
inaccurate registration information, and agreed to the imposition of a term
of not less than 29 months in prison.4 On January 16, 2014, the trial court
sentenced Peck to a term of 19 to 58 months in prison.5 Peck filed a post-
sentence Motion, which the trial court denied. Peck did not file a direct
appeal.
On January 12, 2015, Peck, acting pro se, filed a Petition pursuant to
the Post Conviction Relief Act (“PCRA”).6 Attorney Shreve was assigned as
PCRA counsel, and subsequently filed an amended Petition on Peck’s behalf.
2
According to the Affidavit of Probable Cause, Peck is a Tier 2 sexual
offender, and is required to register for a period of 25 years.
3
See 18 Pa.C.S.A. § 4915.1(c)(3).
4
See N.T., 12/10/13, at 12.
5
At the sentencing hearing, the trial judge indicated that he was imposing
on Peck a mitigated range sentence of 29 to 58 months in prison, but was
reducing the sentence to 19 to 58 months because Peck was owed 10
months of credit for time served. See N.T., 1/16/14, at 5-7; see also id. at
6-7 (wherein the trial court explained that, by structuring Peck’s sentence in
this fashion, it would hasten Peck’s eligibility for parole).
6
See 42 Pa.C.S.A. §§ 9541-9546.
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On June 15, 2015, following a hearing, the PCRA court reinstated Peck’s
direct appeal rights. On July 1, 2015, Peck filed a timely Notice of Appeal.
Attorney Shreve filed a Petition to Withdraw as counsel and an Anders
Brief. In his Anders Brief, Attorney Shreve raises, on Peck’s behalf, the
following questions for our review:
1. [Whether] 42 P[a].C.S.A. § 9799 applied to [Peck],
considering that his indecent assault conviction was prior to
the effective date of the statute?
2. Was insufficient evidence presented to sustain the verdict?
3. Was [Peck’s] sentence illegal due to the possibility of his
sentence being subject to a mandatory minimum?
Anders Brief at 7 (issues renumbered for ease of reference).
“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.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, he 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.
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Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our 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, 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 duty to conduct its own review of the
trial court’s proceedings and render an independent judgment as to whether
the appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228
(citation omitted).
Here, Attorney Shreve has complied with the requirements of Anders.
Attorney Shreve indicates that he examined the record and determined that
an appeal would be frivolous. Further, Attorney Shreve’s Anders Brief,
together with his Petition to Withdraw, minimally comport with the
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requirements set forth by the Supreme Court of Pennsylvania in Santiago.7
Finally, the record includes a copy of the letter that Attorney Shreve sent to
Peck, advising him of his right to proceed pro se or retain alternate counsel
and file additional claims, and stating Attorney Shreve’s intention to seek
permission to withdraw. Accordingly, Attorney Shreve has substantially
complied with the procedural requirements for withdrawing from
representation, and we will conduct an independent review to determine
whether Peck’s appeal is wholly frivolous.
In his first issue, Peck contends that he was sentenced for the
underlying crime (i.e., indecent assault) on November 2, 2011, requiring him
to register under the Sexual Offender Registration and Notification Act
(“SORNA”), codified at 42 Pa.C.S.A. § 9799.10 to 9799.41. Anders Brief at
11. Peck asserts that SORNA requires that persons found guilty of a violent
sexual offense are required to register with the Pennsylvania state police.
Id. Peck claims that the ex post facto clauses of the federal and state
constitutions prohibit the retroactive application of SORNA. Id.
7
In the Anders Brief, Attorney Shreve failed to state his reasons for
concluding that the appeal is frivolous. Attorney Shreve also failed to
provide any citations to the record, or to the controlling case law and
statutes that support his conclusions that Peck’s claims are frivolous.
However, Attorney Shreve has provided sufficient information in his Petition
to Withdraw. While we disapprove of Attorney Shreve’s noncompliance with
the technical requirements of Santiago, our independent review reveals
that Peck’s issues are, in fact, wholly frivolous, as explained below.
Accordingly, in the interest of judicial economy, and because Attorney
Shreve included the relevant Santiago requirements in his Petition to
Withdraw, we will not remand based on the deficiencies of the Anders Brief.
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Our independent review of the record discloses that Peck was notified
at his initial sentencing in 2011, that a registration requirement might attach
to his conviction. See N.T., 11/2/11, at 8-9. Subsequently, Peck was
notified of his registration requirement, and Peck thereafter complied with
such registration requirement. If Peck wished to challenge the imposition of
his registration requirement, he should have done so upon his initial
notification of such requirement. However, Peck did not do so, and instead
accepted, without challenge, the imposition of a registration requirement.
Accordingly, the imposition on Peck of a registration requirement is not
before us. See Pa.R.A.P. 302(a) (stating that issues not raised in the trial
court cannot be raised for the first time on appeal). Rather, the only issue
before this Court is the penalty imposed for Peck’s violation of his
registration requirement. Thus, we conclude that Peck’s first claim is, in
fact, wholly frivolous.8
In his second issue, Peck contends that the evidence presented against
him was insufficient to sustain the verdict. Anders Brief at 12.
Our independent review of the record discloses that Peck knowingly
and voluntarily pled guilty to a violation of 18 Pa.C.S.A. § 4915.1(a)(3).
See N.T., 12/10/13, at 4-12. In so doing, Peck specifically agreed to waive
8
We further observe that, even if Peck’s first issue were properly before us,
we would conclude that it lacks merit. See Commonwealth v. Perez, 97
A.3d 747, 759 (Pa. Super. 2014) (holding that the retroactive application of
SORNA to the defendant did not violate the ex post facto clause of the
federal Constitution).
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his right to have the Commonwealth meet its “burden of proving each and
every element of the crime charged by proof beyond a reasonable doubt.”
Id. at 6. Accordingly, Peck’s argument that the Commonwealth failed to
present sufficient evidence of his guilt is, in fact, wholly frivolous.
In his final issue, Peck contends that his sentence may be illegal due
to the possibility that the trial court imposed a mandatory minimum
sentence, in violation of Alleyne v. United States, 133 S. Ct. 2151
(2013).9 Anders Brief at 10.
We observe that there is nothing in the record to suggest that Peck’s
sentence was enhanced by any fact that mandatorily increased the range of
penalties for his crime. Peck pled guilty to failure to provide accurate
registration information, a first-degree felony, pursuant to a negotiated
guilty plea, and thereafter received the agreed-upon prison sentence (29
months, less 10 months of credit for time served). Accordingly, Peck’s
argument his sentence violates Alleyne is, in fact, wholly frivolous.
In conclusion, we agree with Attorney Shreve’s analysis that Peck’s
sentencing issues are without merit and wholly frivolous. In addition, having
9
In Alleyne, the Supreme Court of the United States held that “facts that
increase mandatory minimum sentences must be submitted to the jury” and
must be found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155,
2163. “The Alleyne decision, therefore, renders those Pennsylvania
mandatory minimum sentencing statutes that do not pertain to prior
convictions constitutionally infirm insofar as they permit a judge to
automatically increase a defendant’s sentence based on a preponderance of
the evidence standard.” Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.
Super. 2013) (en banc) (footnote omitted).
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independently reviewed the entire record before us, we conclude there are
no other issues of merit for appellate review. Thus, we grant Attorney
Shreve’s Petition to Withdraw, and affirm Peck’s judgment of sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2016
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