Com. v. Soto-Moreno, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GERMAN SOTO-MORENO,
Appellant. : No. 3072 EDA 2018
Appeal from the Judgment of Sentence Entered, September 12, 2018,
in the Court of Common Pleas of Chester County,
Criminal Division at No(s): CP-15-CR-0000423-2017,
CP-15-CR-0000424-2017.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 09, 2019
German Soto Moreno appeals from the judgment of sentence imposed
following his conviction of multiple counts of burglary' and related offenses.
Additionally, Moreno's counsel 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 counsel's petition, and affirm Moreno's judgment of
sentence.
Between August and September of 2016, several burglaries occurred at
modular or trailer -style residences in Chester County, Pennsylvania, which
were occupied by low-income, migrant farmworkers of Hispanic descent. In
' 18 Pa.C.S. § 3502(a)(2).
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each instance, the burglar entered the premises while the occupants were out
working in the local mushroom industry, and stole jewelry, religious objects,
and U.S. currency.2 Police discovered that several of the stolen items had
been sold to pawn shops in Wilmington, Delaware. Surveillance video from
one of the pawn shops revealed that Moreno, using a fraudulent U.S.
permanent resident card,3 pawned the stolen items. During an interview with
police, Moreno confessed to committing the crimes.
Police arrested Moreno and charged him with multiple counts of burglary
at two separate docket numbers. On March 26, 2018, Moreno entered an
open guilty plea to one count of burglary at docket number CP-15-CR-423-
2017, and six counts of burglary at docket number CP-15-CR-424-2017.4 All
of the convictions were graded as first -degree felonies. On June 13, 2018,
the trial court sentenced Moreno to five to twenty years of imprisonment for
the single count of burglary at 423-2017. At 424-2017, the trial court
2Because of their immigration status, these types of victims generally avoid
using banking institutions, and sometimes keep large amounts of U.S.
currency in their residences.
3Moreno is a Mexican citizen who is not lawfully in this country. He has been
deported twice, and each time he has returned illegally back into this country.
4 At the time of the burglaries, Moreno was serving a term of parole for prior
residential burglary convictions at four other docket numbers: CR-1158-2015;
CR-1205-2013; CR-3233-2013; and CR-2743-2013. The trial court revoked
his parole at those docket numbers, and reinstated probationary sentences on
his prior convictions.
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sentenced Moreno to ten to twenty years of imprisonment for each of the six
counts of burglary, to be served concurrently with each other and
consecutively to the sentence imposed at 423-2017.
Moreno filed a motion for reconsideration of sentence, which resulted in
the reduction of his sentence at 423-2017 to three to twenty years of
imprisonment. Moreno filed a second motion for reconsideration of sentence,
which resulted in the further reduction of his sentence at 423-2017 to three
to six years of imprisonment on September 12, 2018.5 Upon both motions,
the trial court denied reconsideration of Moreno's sentence imposed at 424-
2017. Thus, following reconsideration, his aggregate sentence was reduced
to thirteen to twenty-six years in prison.
On October 1, 2018, Moreno filed a timely pro se notice of appeal. The
trial court appointed counsel, who filed another notice of appeal on October
12, 2018.6 The trial court ordered Moreno to file a Pa.R.A.P. 1925(b) concise
5 This sentence fell within the standard range of the sentencing guidelines.
The sentences imposed at 424-2017 were the statutory maximum.
6 The notice of appeal filed by counsel is deficient insofar as it does not comply
with Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (decided
June 1, 2018, and holding that, "in future cases when a single order
. . .
resolves issues arising on more than one lower court docket, separate notices
of appeal must be filed. The failure to do so will result in quashal of the
appeal."). Instead, counsel filed a single notice of appeal listing both docket
numbers. Notwithstanding, the certified record reflects that Moreno filed a
timely pro se notice of appeal in the trial court at both docket numbers.
However, those filings are not included in the certified record. Given our
willingness to construe pro se filings liberally, we will assume for purposes of
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statement of errors complained of on appeal. In response, counsel filed a
statement of intent to file an Anders brief. Given that neither counsel nor
Moreno raised any claim of error before the trial court, the trial court declined
to file an opinion pursuant to Pa.R.A.P. 1925(a).
In this Court, counsel filed a petition to withdraw as counsel and an
accompanying Anders brief. In the Anders brief, counsel raises the following
issues that might arguably support the appeal:
1. Did the imposition of an aggregate sentence of thirteen (13) to
twenty-six (26) years' confinement for seven [b]urglary
convictions raise a substantial question that the Sentencing
Code was violated by the sentencing court?
2. Ifa substantial question was raised, did the sentencing court
abuse its discretion?
Anders Brief at 5 (numbering added).
"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. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc) (citation omitted). Pursuant to Anders, when counsel
believes an appeal is frivolous and wishes to withdraw from representation,
she 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
this appeal that Moreno's pro se notices of appeal complied with the dictates
of Walker. See Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa.
Super. 2003).
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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 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 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).
Here, counsel has complied with each of the requirements of Anders.
Counsel indicates that she conscientiously examined the record and
determined that an appeal would be frivolous. Further, the Anders brief
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comports with the requirements set forth by the Supreme Court of
Pennsylvania in Santiago. Finally, the record includes a copy of the letter
that counsel sent to Moreno, advising him of his right to proceed pro se or
retain alternate counsel and file additional claims, and stating counsel's
intention to seek permission to withdraw.7 Accordingly, counsel has complied
with the procedural requirements for withdrawing from representation, and
we will conduct an independent review to determine whether Moreno's appeal
is wholly frivolous.
The issue raised in the Anders brief presents a challenge to the
discretionary aspects of Moreno's sentence.8 "Challenges to the discretionary
aspects of sentencing do not entitle an appellant to review as of right."
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to
reaching the merits of a discretionary sentencing issue, this Court conducts 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, [see] Pa.R.A.P. 2119(f); and (4) whether there
Moreno has not filed any response to the Anders brief.
8 As Moreno entered an open guilty plea, he retained the right to challenge
the discretionary aspects of his sentence. See Commonwealth v. Luketic,
162 A.3d 1149, 1159 (Pa. Super. 2017) (holding that when a defendant enters
a guilty plea which does not involve a plea bargain designating the sentence
to be imposed, he waives the right to challenge all non -jurisdictional defects
except the legality of the sentence and the validity of the plea, but retains the
right to challenge the discretionary aspects of his sentence).
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is asubstantial question that the sentence appealed from is not
appropriate under the Sentencing Code, [see] 42 Pa.C.S.
§ 9781(b).
Id. (citation omitted). When an appellant challenges the discretionary aspects
of his sentence, we must consider his brief on this issue as a petition for
permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.
Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18
(Pa. 1987); 42 Pa.C.S. § 9781(b).
In the instant case, Moreno filed a timely notice of appeal, and two
timely post -sentence motions for reconsideration of sentence. However,
Moreno raised no excessiveness challenge in either motion. Nor did he claim
that his sentence was excessive at the original sentencing hearing, or during
the two hearings conducted on his motions for reconsideration. Generally,
issues that challenge the discretionary aspects of sentencing are waived if
they are not raised during sentencing proceedings or in a post -sentence
motion. See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super.
2004) (holding that issues challenging the discretionary aspects of a sentence
are waived if not raised in a post -sentence motion or by presenting the claim
to the trial court during the sentencing proceedings); see also Pa.R.A.P. 302.
Additionally, while the Anders brief includes a separate "Statement of
Reasons to allow Appeal from the Discretionary Aspects of Sentence," which
we presume is intended to be a Rule 2119(f) statement, it does not indicate
the manner in which Moreno's sentence raises a substantial question. See
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Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008) (stating
that an appellate court will only evaluate substantive discretionary sentencing
claims that were relied upon in the Rule 2119(f) concise statement).
While these deficiencies would generally result in waiver, in light of the
fact that counsel has filed an Anders brief and petition to withdraw, we will
address Moreno's contention. See Commonwealth v. Lilley, 978 A.2d 995,
998 (Pa. Super. 2009) (addressing a discretionary sentencing issue despite
the absence of a Rule 2119(f) statement in the Anders brief); see also
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(concluding that Anders requires review of issues otherwise waived on
appeal).
Our review is governed by the following principles:
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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted). In making a reasonableness determination, a court should consider
four factors:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
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(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d)(1)-(4).
Here, Moreno came before the trial court with a prior record score of
RFEL (repeat felon). He was sentenced on seven counts of residential
burglary, each graded as a first -degree felony with an offense gravity score of
seven. He was also on parole for four other residential burglary convictions.
Given his convictions and criminal history, Moreno faced a maximum
aggregate sentence of seventy to 140 years in prison. Yet, the trial court,
upon reconsideration, sentenced Moreno to an aggregate prison term of
thirteen to twenty-six years. Despite the imposition of a statutory maximum
sentence on six of the convictions, the trial court's decision to run those
sentences concurrently resulted in an aggregate sentence for all seven counts
of burglary in the mitigated range of the sentencing guidelines. Therefore,
Moreno's sentence is clearly not excessive.
Additionally, the trial court considered a pre -sentence investigation
report. Where a sentencing court is informed by a pre -sentence investigation
report, "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. Ventura, 975
A.2d 1128, 1135 (Pa. Super. 2009).
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Moreover, the trial court explained its reasons for the sentence on the
record, noting the nature of the crimes, Moreno's criminal record, his failure
to rehabilitate, and the fact that he was in this country illegally. See N.T.
Sentencing, 6/13/18, at 21-23; see also 42 Pa.C.S.A. § 9721(b). Thus, we
discern no abuse of discretion by the trial court, and agree with counsel's
conclusion that Moreno's excessive sentencing challenge is wholly frivolous
and does not entitle him to relief.
Finally, our review of the record discloses no other non -frivolous issues
that Moreno could raise that his counsel overlooked. Dempster, supra.
Accordingly, we grant counsel's petition to withdraw, and affirm the judgment
of sentence.
Petition to withdraw granted, judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/9/19
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