Com. v. Holmes, E.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EDWARD HOLMES, : No. 740 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 26, 2014,
in the Court of Common Pleas of Lackawanna County
Criminal Division at Nos. CP-35-CR-0002459-2013,
CP-35-CR-0002460-2013, CP-35-CR-0002623-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 09, 2014
Edward Holmes appeals from the judgment of sentence of March 26,
2014, following his conviction of simple assault, terroristic threats, theft by
deception, and possession of a controlled substance. Appointed counsel,
Donna M. DeVita, Esq., has filed a petition to withdraw and accompanying
Anders1 brief. After careful review, we grant the petition to withdraw and
affirm the judgment of sentence.
On December 6, 2013, appellant entered an open guilty plea to simple
assault, terroristic threats, and theft by deception. As part of the plea
* Former Justice specially assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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agreement, the remaining charges were nolle prossed. The simple assault
charge related to an incident on October 31, 2013, wherein appellant threw
a candle at the victim, striking him and causing injury. (Notes of testimony,
12/6/13 at 5.) The terroristic threats charge related to a separate incident
on October 27, 2013, wherein appellant placed a pillow over his
ex-girlfriend’s face, grabbed her by the neck, and made threats, including
stating, “Not now, but next time.” (Id. at 6.) With regard to theft by
deception, it was alleged that on September 8, 2013, appellant cashed a
check for $468.02 using the victim’s identification. (Id.)
On March 26, 2014, appellant appeared before the Honorable Vito P.
Geroulo for sentencing. Along with the three charges above, appellant was
to be sentenced for a 2011 case of simple possession. Despite appellant’s
repeat felony offender (“REFL”) status, appellant asked for a county
sentence due to his diagnosis of stage 4 colon cancer and the fact that he is
an alcoholic. (Notes of testimony, 3/26/14 at 5-6.) Appellant also noted
that he had no prison misconducts, was a block worker, and never violated
probation/parole. (Id. at 6-7.) Appellant’s prior felonies were from 1980
and 1992. (Id. at 6.)
Judge Geroulo imposed a sentence of 1 to 2 years’ incarceration for
simple assault, 1 to 3 years for terroristic threats, 1 to 2 years for theft by
deception, and 6 to 12 months for simple possession. (Id. at 8-9.)
Appellant’s sentences for simple assault and terroristic threats were run
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concurrently for an aggregate sentence of 2½ to 6 years. (Id.) Appellant’s
sentences all fell at the bottom of the standard range of the sentencing
guidelines. (Id. at 9-10.)
On March 27, 2014, appellant filed a motion for reconsideration of
sentence, again asking for a county sentence in light of his medical history
and prison record. Appellant’s post-sentence motion was denied on
March 28, 2014. This timely appeal followed on April 24, 2014. Appellant
complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has
filed an opinion.
Appellant has raised the following issues for this court’s review,
challenging the discretionary aspects of his sentence:
A. Whether the sentences imposed were
inappropriately harsh and excessive and an
abuse of discretion?
B. Whether the lower court failed to take into
consideration Appellant’s medical and
rehabilitation needs when it imposed its
sentences?
Appellant’s brief at 4.
Counsel having filed a petition to withdraw, we reiterate that “[w]hen
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. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
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In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel 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.
Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we find that Attorney DeVita has complied with all of the
above requirements. In addition, Attorney DeVita served appellant a copy of
the Anders brief, and advised him of his right to proceed pro se or hire a
private attorney to raise any additional points he deemed worthy of this
court’s review. Appellant has not responded to counsel’s motion to
withdraw. As we find the requirements of Anders and Santiago are met,
we will proceed to the issues on appeal.
A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a
matter of right. Commonwealth v. Hunter, 768
A.2d 1136 (Pa.Super.2001)[,] appeal denied, 568
Pa. 695, 796 A.2d 979 (2001). When challenging
the discretionary aspects of a sentence, an appellant
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must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement
demonstrating that there is a substantial question as
to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Commonwealth v.
Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987);
42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The
requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal
‘furthers the purpose evident in the Sentencing Code
as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors
impinging on the sentencing decision to exceptional
cases.’” Commonwealth v. Williams, 386
Pa.Super. 322, 562 A.2d 1385, 1387 (1989)
(en banc) (emphasis in original).
Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).
Instantly, appellant has complied with Rule 2119(f) by including the
requisite statement in his brief. (Appellant’s brief at 8-9.) However, we find
that appellant does not raise a substantial question for our review.
Appellant acknowledges that he received a standard range sentence but
argues that the aggregate sentence was excessive in light of the
circumstances. (Id.) Appellant’s argument is mere boilerplate. Appellant
entered an open guilty plea and received a guideline sentence. Appellant
falls well short of raising a “substantial question” for our review with respect
to the trial court’s exercise of its sentencing discretion. There is simply
nothing to review here. Commonwealth v. Maneval, 688 A.2d 1198,
1199-1200 (Pa.Super. 1997) (“Generally, if the sentence imposed falls
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within the sentencing guidelines, no substantial question exists.”), citing
Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.Super. 1995).
With regard to appellant’s claim that the trial court failed to give
sufficient weight to mitigating factors such as his alcoholism and medical
condition, an argument that the sentencing court failed to consider
mitigating factors in favor of a lesser sentence does not present a
substantial question appropriate for our review; as such, we need not
address it. Commonwealth v. Hanson, 856 A.2d 1254, 1257-1258
(Pa.Super. 2004), citing Commonwealth v. McNabb, 819 A.2d 54, 57
(Pa.Super. 2003). See also Commonwealth v. Griffin, 804 A.2d 1, 9
(Pa.Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied,
545 U.S. 1148 (2005), citing Williams, supra (an allegation that the
sentencing court did not adequately consider various factors is, in effect, a
request that this court substitute its judgment for that of the lower court in
fashioning a defendant’s sentence).
In addition, the court had the benefit of a PSI report. “Our Supreme
Court has ruled that where pre-sentence reports exist, the presumption will
stand that the sentencing judge was both aware of and appropriately
weighed all relevant information contained therein.” Griffin, supra at 8,
citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). We note
that Judge Geroulo was well aware of appellant’s cancer diagnosis and
directed that he be housed in an appropriate facility. (Notes of testimony,
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3/26/14 at 9.) Judge Geroulo also indicated his intention to monitor
appellant’s case to ensure that any and all medical needs are being
provided. (Id.)
Having determined that the instant appeal is wholly frivolous, and
after our own independent review, that there are no issues of arguable merit
apparent from the record, we will grant Attorney DeVita’s petition to
withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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