Com. v. Freedman, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRANDYN FREEDMAN
Appellant No. 2946 EDA 2014
Appeal from the Judgment of Sentence September 16, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000871-2008
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 29, 2015
Brandyn Freedman appeals from the judgment of sentence imposed by
the Court of Common Pleas of Delaware County following revocation of his
probation. Freedman’s counsel also seeks to withdraw pursuant to the
dictates of Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), and Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981). Upon review, we grant counsel’s petition to
withdraw and affirm Freedman’s judgment of sentence.
Freedman pled guilty to unlawful contact with a minor,1 and on
November 13, 2008, the court sentenced him to one year less one day to
two years less one day in the county correctional facility, followed by five
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1
18 Pa.C.S. § 6318.
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years of county probation. He was ordered not to have unsupervised
contact with minors under the age of seventeen, and to register under
Megan’s Law for ten years.
In 2010 and 2013, Freedman was found in violation of his parole and
probation. The 2013 violation led to imposition of a new sentence of three
years’ probation. In July 2014, a bench warrant was issued for further
violations, and on September 16, 2014, following Gagnon II hearing,2 at
which Freedman stipulated to the violations, the court resentenced him to
serve 18 to 60 months’ imprisonment. The court recommended to the state
parole board that Freedman’s release be contingent on his successful
completion of the Department of Corrections Sexual Offenders Program.
N.T. Gagnon II Hearing, 9/16/14, at 20.
Freedman filed a pro se motion for reconsideration of sentence, which
the trial court dismissed on September 14, 2014, noting that the pleading
was a nullity because Freedman was represented by counsel, and hybrid
representation is prohibited, citing Commonwealth v. Nischan, 928 A.2d
349 (Pa. Super. 2007).
Following the filing of a timely notice of appeal, the court directed
counsel to file a statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On November 5, 2014, counsel filed a statement of
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2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). The trial
court filed its Rule 1925(a) opinion on January 2, 2015.
On February 23, 2015, Freedman’s counsel filed an Anders brief.
“When faced with a purported Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super.
2005). Furthermore, counsel must comply with certain mandates when
seeking to withdraw pursuant to Anders, Santiago and McClendon. These
mandates are not overly burdensome and have been summarized as follows:
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be
wholly frivolous. Counsel must also file an Anders brief
setting forth issues that might arguably support the appeal
along with any other issues necessary for the effective
appellate presentation thereof.
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant
of the right to retain new counsel, proceed pro se or raise
any additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition
to withdraw and remand the case with appropriate
instructions (e.g., directing counsel either to comply with
Anders or file an advocate’s brief on Appellant’s behalf).
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations
omitted).
Here, counsel has provided the facts and procedural history of the
case, and avers that, after a thorough review of the record, he finds the
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appeal to be wholly frivolous, and states his reasons for this conclusion.
Counsel provided a copy of the petition and Anders brief to Freedman.
Counsel has not submitted documentation to this Court that he advised
Freeman of the right to retain new counsel, or proceed pro se, and raise any
additional points he deems worthy of this Court’s attention. However, on
May 8, 2015, Freedman filed a pro se response to the Anders brief.
Accordingly, we find counsel has met the requirements of Anders, Santiago
and McClendon.
Once counsel has satisfied the above requirements, this Court
conducts its own review of the proceedings and renders an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
In his Anders brief, the sole issue of arguable merit raised by counsel
is “whether the new maximum sentence of 60 months[’] imprisonment
imposed upon Freedman is harsh and excessive under the circumstances.”
Anders Brief, at 1.3
Freedman challenges the discretionary aspects of his sentence. When
the discretionary aspects of a sentence are questioned, an appeal is not
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3
Although Freedman does not include a separate statement of questions
involved in his brief, his argument includes the following statement: “The
sentence imposed by the lower court of 18 to 60 months[’] imprisonment
following a Gagnon II hearing [on] September 16, 2014[,] was harsh and
excessive under the circumstances.” Appellant’s Brief, at 2.
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guaranteed as of right. Commonwealth v. Moore, 617 A.2d 8, 11 (Pa.
Super. 1992).
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, 42
Pa.C.S. § 9781(b).
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation
omitted).
Freedman filed a timely notice of appeal and preserved the issue,
albeit obliquely, during the Gagnon II and in a pro se motion for
reconsideration of sentence, which the court dismissed because of the hybrid
representation issue. Neither the Anders brief nor the pro se brief includes
a concise statement of reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence, as required by Pa.R.A.P.
2119(f). The Commonwealth has not objected to this omission. It is well-
settled that in the absence of objection from the Commonwealth, this Court
may ignore the omission of such statement and proceed to determine if the
appellant has raised a substantial question. Commonwealth v. Kiesel,
854 A.2d 530, 533 (Pa. 2004).
A claim that the court imposed a sentence that is unreasonably
disproportionate to a defendant’s crimes and is unduly excessive raises a
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substantial question. Commonwealth v. Williams, 69 A.3d 735, 740 (Pa.
Super. 2013).
We begin by noting that “[t]he imposition of sentence is vested in the
discretion of the trial court, and should not be disturbed on appeal for a mere
error of judgment but only for an abuse of discretion and a showing that a
sentence was manifestly unreasonable.” Commonwealth v. Walls, 926 A.2d
957, 961 (Pa. 2007). “The proper standard of review for an appellate court is
to focus on the pertinent statutory provisions in the Sentencing Code,
specifically 42 Pa.C.S. § 9781(c) and (d), and 42 Pa.C.S. § 9721(b).” Id. at
963. We also consider a sentence imposed following revocation of probation in
light of the limitations set forth in 42 Pa.C.S. § 9771(c).4 Because subsections
9781(c) and (d) include a focus on sentencing guidelines, however, and
because sentencing guidelines do not apply to revocation sentences, in this
case we look solely to the provisions of 42 Pa.C.S. § 9721(b).
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4
Section 9771(c) provides that a court may only impose a sentence of total
confinement upon revocation of probation if it finds that:
(1) the defendant has been convicted of another crime;
(2) the conduct of the defendant indicates that it is likely that
he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of
the court.
42 Pa.C.S. § 9771(c).
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Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001).
Section 9721(b) provides, in relevant part, as follows:
[T]he court shall follow the general principle that the sentence
imposed should call for confinement that 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 on the community, and the
rehabilitative needs of the defendant.
42 Pa.C.S. § 9721(b).
At the Gagnon II hearing, Freedman stipulated to violating several
conditions of his probation including that he refrain from using controlled
substances, obtain permission from his probation officer before leaving the
Commonwealth, participate in and successfully complete a sex offender
treatment program, and have no contact with minors without a responsible
adult present. Freedman, who was 18 years old when he committed the
underlying offense, testified that he had matured since that time, and since
his previous probation violations in 2010 and 2013. After hearing from
Freedman, the court reviewed the history of the case, noting:
August 2010, at the time of the first Gagnon proceeding, among
other things, it was directed that Mr. Freedman successfully
complete the County Prison’s Sexual Offender Program.
February 2013, three years of probation imposed, more sex
offenders treatment directed along with other prohibitions.
.....
I tried in 2010 at the County Level. I was lenient and I think
generous in 2013. Yet, here we all are again. Given your age,
you successfully completing treatment and investing in that
treatment is critical.
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N.T. Gagnon II Hearing, 9/16/14, at 18-19. The court then sentenced
Freedman to a term of 18 months to 5 years’ incarceration, and directed him
to enroll in the State Prison Sexual Offenders Treatment Program. Although
Freedman’s probation officer recommended a minimum sentence of 30
months, the court imposed a minimum sentence of 18 months based on the
probation officer’s statement that 18 months is the average time for an
individual to complete treatment. Id. at 10.
A sentencing court, upon revocation of probation, is allowed to
consider any sentencing option it had at the initial sentencing.
Commonwealth v. Raphael, 69 A.3d 735 (Pa. 2013). In light of
Freedman’s repeated violations, including his failure to complete treatment,
the trial court’s imposition of a state sentence, which will allow Freedman to
rehabilitate himself through participation in the sexual offenders treatment
program, is a reasonable exercise of judicial discretion. See 42 Pa.C.S. §
9721(b).
Accordingly, although we find that Freedman has raised a substantial
question with regard to sentencing, we conclude that he is not entitled to
relief.5
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5
Pursuant to the dictates of Commonwealth v. Flowers, ___ A.3d ___
(Pa. Super. 2015), 2015 WL 1612010, we have conducted an independent
review of the record, including the transcripts of Freedman’s May 13, 2008
guilty plea hearing, his November 13, 2008 sentencing hearing and his
September 16, 2014 Gagnon II hearing. We discern no non-frivolous
issues overlooked by counsel.
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Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2015
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