Com. v. Santiago-Hernandez, G.

J-S57033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GILB SANTIAGO-HERNANDEZ, :
:
Appellant : No. 755 MDA 2019
Appeal from the Judgment of Sentence Entered December 10, 2018
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002077-2018
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 24, 2019
Gilb Santiago-Hernandez (“Santiago-Hernandez”) appeals from the
judgment of sentence imposed following his guilty plea to three counts of
simple assault, and one count each of recklessly endangering another person,
disorderly conduct, and resisting arrest.1 Additionally, Robert M. Buttner,
Esquire (“Attorney Buttner”), has filed an Application to Withdraw as Counsel,
and an accompanying brief pursuant to Anders v. California, 386 U.S. 738(1967). We grant Attorney Buttner’s Application to Withdraw, and affirm
Santiago-Hernandez’s judgment of sentence.
During the plea hearing, Santiago-Hernandez agreed to the following
statement of facts:
On May 31st of 2018, [Santiago-Hernandez] did intentionally
punch Amy B[e]ndick [(“Bendick”), his girlfriend,] in the face, as
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1 18 Pa.C.S.A. §§ 2701(a)(1), 2705, 5503(a)(1), 5104.
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well as punch [Edwardsville Police] Officer Michael Lehman in the
face, as well as [O]fficer Nicholas Rebal in the face. [Santiago-
Hernandez] also recklessly endangered [] B[e]ndick by a course
of conduct that put her at risk of bodily injury. He also engaged
in a fight with the police that came to arrest him that day[,] as
well as resisted arrest once the police were on the scene to take
him into custody.
N.T., 10/22/18, at 5.
On October 22, 2018, Santiago-Hernandez pled guilty to the above-
mentioned charges.2 Santiago-Hernandez also agreed to have no contact with
the victims; to undergo an anger management evaluation, and comply with
the recommendations; and to undergo a mental health evaluation and
batterer’s intervention evaluation, and to follow the recommendations. The
trial court deferred sentencing and ordered a pre-sentence investigation
report (“PSI”).
On December 10, 2018, the trial court sentenced Santiago-Hernandez
to an aggregate prison term of 11-23 months. The court also ordered
Santiago-Hernandez to complete 40 hours of community service. Additionally,
the court directed that Santiago-Hernandez would be immediately eligible for
work release, and, upon Bendick’s request, permitted Santiago-Hernandez to
resume contact with Bendick.
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2 Santiago-Hernandez agreed to plead guilty in exchange for withdrawal of
additional remaining charges. However, the plea agreement did not include
an agreement as to a specific negotiated sentence or a sentencing
recommendation.
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Santiago-Hernandez filed a Motion to Modify Sentence the following day,
requesting that the court modify his sentence to a term of probation or house
arrest. On April 5, 2019, the trial court denied Santiago-Hernandez’s Motion
to Modify Sentence. Santiago-Hernandez thereafter filed a timely Notice of
Appeal. The trial court ordered Santiago-Hernandez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
In lieu of filing a concise statement, Attorney Buttner filed a Statement of his
intention to withdraw as counsel. On August 26, 2019, Attorney Buttner filed
an Application to Withdraw as Counsel, and an accompanying Anders Brief.
We must first determine whether Attorney Buttner has complied with
the dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc) (stating that “[w]hen faced with a purported Anders brief, this Court
may not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”) (citation omitted). Pursuant to
Anders, when an attorney believes that an appeal is frivolous and wishes to
withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to the
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the [appellate] court.
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Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, Attorney Buttner has complied with the
requirements set forth in Anders by indicating that he reviewed the record
and determined that Santiago-Hernandez’s appeal would be wholly frivolous.
Further, the record contains a copy of the letter that Attorney Buttner sent to
Santiago-Hernandez, informing him of Attorney Buttner’s intention to
withdraw, and advising him of his rights to proceed pro se, retain counsel, and
file additional claims.3 Finally, Attorney Buttner’s Anders Brief meets the
standards set forth in Santiago. Because Attorney Buttner has complied with
the procedural requirements for withdrawing from representation, we will
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3 Santiago-Hernandez did not file a pro se appellate brief, nor did he retain
alternate counsel for this appeal.
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independently review the record to determine whether Santiago-Hernandez’s
appeal is, in fact, wholly frivolous.
In the Anders Brief, Attorney Buttner raises the following issue:
“Whether imposing a standard range sentence on each count and an
aggregate sentence of 11 months to 23 months, rather than probation or
house arrest, is harsh and excessive[,] constituting an abuse of discretion by
the trial court?” Anders Brief at 3.
Santiago-Hernandez claims that the trial court imposed an excessive
sentence because the applicable sentencing range permitted probation or
house arrest. Id. at 8-9. Santiago-Hernandez also argues that the court
failed to consider mitigating factors such as his reconciliation with Bendick, his
acceptance of responsibility, and his employment until the time of sentencing.
Id. at 9, 11.
Santiago-Hernandez challenges the discretionary aspects of his
sentence, from which there is no absolute right to appeal. 4 See
Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Prior to
reaching the merits of a discretionary sentencing issue, this Court conducts
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4 Because the parties did not bargain for a specific sentence when negotiating
the guilty plea, Santiago-Hernandez is not precluded from challenging the
discretionary aspects of his sentence on appeal. Commonwealth v.
Heaster, 171 A.3d 268, 271 (Pa. Super. 2017) (concluding that appellant
could challenge the discretionary aspects of his sentence after entering a
“hybrid” guilty plea, i.e., a plea that negotiated a particular aspect of the
sentence, but did not include a sentencing agreement).
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a four-part analysis to determine: (1) whether the 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.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Santiago-Hernandez filed a timely Notice of Appeal, preserved his
sentencing claim in his Motion to Modify Sentence, and included a separate
Rule 2119(f) Statement in the Anders Brief. Additionally, Santiago-
Hernandez’s claim raises a substantial question for our review. See
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (stating that “an excessive sentence claim—in conjunction with an
assertion that the [trial] court failed to consider mitigating factors—raises a
substantial question.” (citation omitted)).
Our standard of review of a challenge to the discretionary aspects of a
sentence is well established:
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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).
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The Sentencing Code provides that “the [trial] 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.A. § 9721(b). The trial court
must also consider the sentencing guidelines. See id.; see also
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating
that “[w]hen imposing a sentence, the [trial] court is required to consider the
sentence ranges set forth in the Sentencing Guidelines….”).
Importantly, the trial court in the instant case had the benefit of a PSI.
Where a trial court is informed by a PSI, “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) (citing
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). In discussing
Devers, this Court in Ventura explained as follows:
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a [PSI], it will be presumed that he or she was aware of
the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors. Additionally, the sentencing court must state its reasons
for the sentence on the record. The sentencing judge can satisfy
the requirement that reasons for imposing sentence be placed on
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the record by indicating that he or she has been informed by the
[PSI]; thus properly considering and weighing all relevant factors.
Ventura, 975 A.2d at 1135 (citation omitted).
Because the trial court here confirmed that it had reviewed Santiago-
Hernandez’s PSI (see N.T., 12/10/19, at 2), it is presumed that the court was
informed of and considered all mitigating factors, including Santiago-
Hernandez’s rehabilitative needs, character and history. See Ventura,
supra. Both parties indicated that they had reviewed the PSI, and indicated
that they had no additions or corrections for the court to consider. N.T.,
12/10/19, at 2. Additionally, Santiago-Hernandez’s counsel also stated that
Santiago-Hernandez was gainfully employed in a full-time position, and
Bendick explained to the court that she and Santiago-Hernandez had
reconciled. Id. at 2-3. Further, in imposing the standard-range sentence, the
trial court noted that Santiago-Martinez’s convictions arose out of a domestic
violence incident, and involved the assault of police officers. Id. at 2.
Upon review, we do not find Santiago-Hernandez’s standard-range
sentence unreasonable, and we otherwise discern no abuse of the trial court’s
discretion. See Moury, 992 A.2d at 171 (explaining that “where a sentence
is within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.”). Our review confirms
that the trial court adequately considered the relevant sentencing
considerations, including mitigating factors, and was fully informed by a PSI.
See 42 Pa.C.S.A. § 9721(b); Sheller, supra; see also Ventura, supra.-8-
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Thus, Santiago-Hernandez’s challenge to the discretionary aspects of his
sentence fails.
Finally, our independent review of the record discloses no additional
non-frivolous issues that Santiago-Hernandez could raise on appeal. We
therefore grant Attorney Buttner’s Application to Withdraw, and affirm
Santiago-Hernandez’s judgment of sentence.
Application to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2019
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