Com. v. Quick, J.

J-S10044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAHMEEN RAHEE QUICK :
:
Appellant : No. 2335 EDA 2018
Appeal from the Judgment of Sentence Entered June 25, 2018
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005613-2016
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 22, 2019
Appellant, Jahmeen Rahee Quick, appeals from the judgment of
sentence entered in the Lehigh County Court of Common Pleas, following his
guilty plea to fleeing or attempting to elude a police officer and recklessly
endangering another person (“REAP”).1 We affirm and grant counsel’s petition
to withdraw.
The relevant facts and procedural history of this case are as follows. On
August 15, 2015, police attempted to perform a traffic stop based on
Appellant’s operation of a motor vehicle. Rather than pull over, however,
Appellant sped away from police, attempting to elude them until he lost control
of his vehicle and crashed into a wall. Appellant ran from the scene of the
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1 75 Pa.C.S.A. § 3733(a) and 18 Pa.C.S.A. § 2705, respectively.
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* Retired Senior Judge assigned to the Superior Court.
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crash but later surrendered to police on August 25, 2015.
On May 24, 2018, Appellant entered a guilty plea to fleeing or
attempting to elude a police officer and REAP. The plea agreement called for
the sentences to run concurrently, with the minimum overall sentence capped
at eleven (11) months. The court deferred sentencing for the completion of a
presentence investigation (“PSI”) report. After reviewing the PSI, the court
sentenced Appellant on June 25, 2018, to an aggregate of eleven (11) months
to two (2) years’ imprisonment in a state facility, with this sentence and the
recommitment sentence on Appellant’s parole violations to run consecutively.
The court also determined that Appellant was Boot Camp eligible.
On July 5, 2018, Appellant filed a post-sentence motion for
reconsideration of sentence, which the court denied on July 11, 2018.
Appellant timely filed a notice of appeal on August 1, 2018. On August 3,
2018, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely
complied. On January 2, 2019, counsel filed an application to withdraw and a
brief in this Court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967).
As a preliminary matter, counsel seeks to withdraw his representation
pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,
978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition
the Court for leave to withdraw, certifying that after a thorough review of the
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record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d
266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
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Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, 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. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel has filed a petition to withdraw. The
petition states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. In the Anders brief, counsel provides a
summary of the facts and procedural history of the case. Counsel’s argument
refers to relevant law that might arguably support Appellant’s issues. Counsel
further states the reasons for his conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the technical requirements
of Anders and Santiago.
Appellant has not responded to the Anders brief pro se or with newly-
retained private counsel. Counsel raises the following issues on Appellant’s
behalf:
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WHETHER THE [TRIAL] COURT ABUSED ITS SENTENCING
DISCRETION BY ORDERING THE TWO SENTENCES TO RUN
CONSECUTIVE TO [APPELLANT’S] PROBATION VIOLATION
AND ORDERING THAT THE SENTENCE BE SERVED IN A
STATE FACILITY?
MAY APPOINTED COUNSEL BE PERMITTED TO WITHDRAW
AFTER A CONSCIENTIOUS REVIEW OF THE ISSUES AND
THE FACTS PURSUANT TO THE ANDERS CASE?
(Anders Brief at 7).
Appellant argues that the sentencing court’s imposition of a two year
maximum sentence was harsh and manifestly excessive as it required
Appellant to be incarcerated in a state facility. Appellant further alleges that
the sentencing court abused its discretion by ordering the sentence for his
new offenses and the backtime for his parole violation to run consecutively.
Appellant also claims the court failed to consider certain mitigating factors,
such as Appellant’s cooperation in the prosecution, his remorse for his criminal
activity, and his rehabilitative needs. Appellant concludes this Court should
remand for resentencing. As presented, Appellant’s claims challenge the
discretionary aspects of his sentence. See Commonwealth v. Austin, 66
A.3d 798, 808 (Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258(2013) (considering challenge to imposition of consecutive sentences as claim
involving discretionary aspects of sentencing); Commonwealth v. Lutes,
793 A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing); Commonwealth
v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.
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653, 676 A.2d 1195 (1996) (explaining claim that court did not consider
mitigating factors challenges discretionary aspects of sentencing).2
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[W]e conduct 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, 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial question
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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005)
(emphasis in original). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as
to his maximum sentence, so he can challenge the discretionary aspects of
his sentence.
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as to the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); 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. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks
omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)).
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
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sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. Bald allegations of excessiveness, however, do not raise a substantial
question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,
a substantial question will be found “only where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the Sentencing
Code or a particular fundamental norm underlying the sentencing process….”
Id. Nevertheless, “[a]n allegation that a sentencing court ‘failed to consider’
or ‘did not adequately consider’ certain factors does not raise a substantial
question that the sentence was inappropriate.” Cruz-Centeno, supra at 545(quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995),
appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also
Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining
allegation that sentencing court failed to consider specific mitigating factor
generally does not raise substantial question; claim that sentencing court
ignored appellant’s rehabilitative needs failed to raise substantial question).
“Where [PSI] reports exist, we shall continue to presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18
(1988).
A [PSI] report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
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engaging in an effort of legal purification, we state clearly
that [sentencing courts] are under no compulsion to employ
checklists or any extended or systematic definitions of their
punishment procedure. Having been fully informed by the
pre-sentence report, the sentencing court’s discretion
should not be disturbed. This is particularly true, we repeat,
in those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.
Id. at 102, 546 A.2d at 18. See also Tirado, supra (explaining if sentencing
court has benefit of PSI, law presumes court was aware of relevant information
regarding appellant’s character and weighed those considerations along with
mitigating factors).
Furthermore,
Pennsylvania law affords the sentencing court discretion to
impose [a] sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this
discretion does not raise a substantial question. In fact, this
Court has recognized the imposition of consecutive, rather
than concurrent, sentences may raise a substantial question
in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature
of the crimes and the length of imprisonment.
Austin, supra at 808 (internal citations and quotation marks omitted). See
also Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995)
(stating appellant is not entitled to “volume discount” for his crimes by having
all sentences run concurrently). Compare Commonwealth v. Dodge, 957
A.2d 1198 (Pa.Super. 2008), appeal denied, 602 Pa. 662, 980 A.2d 605(2009) (holding consecutive, standard range sentences on thirty-seven counts
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of petty theft offenses for aggregate sentence of 58½ to 124 years’
imprisonment constituted virtual life sentence and was so manifestly
excessive as to raise substantial question). “Thus, in our view, the key to
resolving the preliminary substantial question inquiry is whether the decision
to sentence consecutively raises the aggregate sentence to, what appears
upon its face to be, an excessive level in light of the criminal conduct at issue
in the case.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011).
But see Austin, supra (holding that challenge to imposition of consecutive
sentences, which yields extensive aggregate sentence, does not necessarily
present substantial question as to discretionary aspects of sentencing, unless
court’s exercise of discretion led to sentence that is grossly incongruent with
criminal conduct at issue and patently unreasonable). Additionally, Section
6138 of the Prisons and Parole Code requires a new sentence and any
backtime for a parole violation to run consecutively. 61 Pa.C.S.A. §
6138(a)(5)(i-iii). In other words, a parolee may not serve a new sentence
concurrent with his backtime. Id.
Instantly, Appellant’s post-sentence motion and Rule 2119(f) statement
properly preserve his claims. Nevertheless, Appellant’s bald allegation of
excessiveness does not warrant our review. See Mouzon, supra. Likewise,
Appellant’s claim the sentencing court failed to consider mitigating factors,
such as Appellant’s cooperation in the prosecution, his remorse for his criminal
activity, and his rehabilitative needs, does not pose a substantial question.
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See Berry, supra; Cruz-Centeno, supra. Moreover, the court had the
benefit of a PSI report. Therefore, we can presume the court was aware of
the relevant information regarding mitigating circumstances. See Devers,
supra; see also Tirado, supra. Finally, Appellant’s complaint regarding the
court’s imposition of a consecutive sentence also fails to raise a substantial
question. See Austin, supra. Actually, Pennsylvania law requires the
backtime for parole violations and the sentence imposed for new offenses to
run consecutively. See 61 Pa.C.S.A. § 6138(a)(5)(i-iii). Therefore, the court
had no discretion to impose Appellant’s new sentence concurrent with his
backtime. See id. Thus, Appellant is not entitled to relief on these grounds.
Following an independent review of the record, we agree with counsel that the
appeal is wholly frivolous. See Dempster, supra. Accordingly, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/19
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