Com. v. Miller, E.

J-S58024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EMMANUEL MILLER :
:
Appellant : No. 410 WDA 2018
Appeal from the Judgment of Sentence February 9, 2018
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000465-2017
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 16, 2018
Emmanuel Miller (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to driving under the influence (DUI) and driving
without a license.1 Appellant’s counsel, Emily M. Merski, Esquire (Counsel),
seeks to withdraw from representation pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009). Upon review, we affirm Appellant’s judgment of sentence and grant
Counsel’s petition to withdraw.
The trial court recounted the factual and procedural history of this case
as follows:
[Appellant] entered a plea on [ ] November 6, 2017. The plea
was to two counts[:] Count 4, [DUI], as a Tier III, first offense
with a minor occupant in the vehicle and Count 5, Drivers Required
to be Licensed. The violation section pled to by [Appellant] was
____________________________________________
1 75 Pa.C.S.A. §§ 3802(d)(3), 1501(a).
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3802(d)(3) for a combination of Alcohol and Controlled Substance
or a Combination of Controlled Substances. The offense was
graded as a misdemeanor of the first degree because at the time
of the incident [Appellant] was operating a motor vehicle with a
minor present while under the influence pursuant to 75 Pa.C.S.A.
[§] 3804(C.1)(1). [Appellant’s] plea involved a Commonwealth
Sentencing recommendation of a low-end standard range.
A Guideline Form was prepared in advance of sentencing and
[Appellant] underwent a drug and alcohol assessment as required
and also a CRN evaluation. The Drug and Alcohol Assessment
recommended a level of care and [Appellant] was to commence
treatment on [November 22, 2017,] and it was then adjusted on
[November 22, 2017] to start outpatient treatment. The Mortimer
Filkins score on [Appellant’s] CRN was a 56 and [Appellant’s]
Offense Gravity Score for the applicable DUI was a five.
[Appellant’s] Prior Record Score was also a five.
His prior record stemmed from a number of significant criminal
offenses including a juvenile robbery for which he was adjudicated
delinquent, multiple misdemeanors in Erie County as well as
Escape as a felony and most recently a Firearms Not to be Carried
Without License charge as a felony. A review of [Appellant’s]
Guideline Report indicated that he had served a significant
sentence as a result of a conviction in 2002 and a 36-72 month
SCI sentence in 2011.
At the time of [Appellant’s] sentencing, there were issues that
suggested ongoing mental health and drug and alcohol issues and
other issues including indications of instability in the community.
[Appellant] had just completed his state sentence at the time he
committed the offense before the Court. He was also operating a
motor vehicle at the time without a valid license.
Applying the Offense Gravity Score and prior record score of five,
the applicable standard range was a minimum in the range of 12-
18 months.
Trial Court Opinion, 5/7/18, at 1-2.
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The trial court sentenced Appellant to 12 to 36 months of incarceration.
Appellant filed a timely post-sentence motion which the trial court denied.
Thereafter, Appellant filed this timely appeal.
On appeal, Counsel has filed a petition for leave to withdraw as counsel
in addition to an Anders brief. There are particular mandates that counsel
seeking to withdraw pursuant to Anders must follow. These mandates and
the significant protection they provide to an Anders appellant arise because
a criminal defendant has a constitutional right to a direct appeal and to counsel
on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.
2007). We have summarized these requirements 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).
Id. (citations omitted).
Additionally, there are requirements as to precisely what an Anders
brief must contain:
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[T]he Anders brief that accompanies court-appointed counsel’s
petition to withdraw … 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.
Santiago, 978 A.2d 349, 361 (Pa. 2009). When faced with a purported
Anders brief, we may not review the merits of the underlying issues without
first deciding whether counsel has properly requested permission to withdraw.
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation
omitted). If counsel has met these obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.
Instantly, we conclude that Counsel has complied with the requirements
outlined above. Counsel has filed a petition with this Court stating that after
reviewing the record, she finds this appeal to be wholly frivolous. Petition for
Leave to Withdraw as Counsel, 7/24/18, at ¶ 3. In conformance with
Santiago, Counsel’s brief includes summaries of the facts and procedural
history of the case, and discusses the issues she believes might arguably
support Appellant’s appeal. See Anders Brief at 4-9. Counsel’s brief sets
forth her conclusion that the appeal is frivolous and includes citation to
relevant authority. See id. at 9-10. Finally, Counsel has attached to her
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petition to withdraw the letter that she sent to Appellant, which enclosed
Counsel’s petition and Anders brief. Counsel’s letter advised Appellant of his
right to proceed pro se or with private counsel and to raise any additional
issues that he deems worthy of this Court’s consideration.
Counsel’s Anders brief advances Appellant’s overarching argument
challenging the discretionary aspects of Appellant’s sentence. We recognize:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal
quotations and citations omitted).
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),
appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-
part test to invoke this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.” Id. We conduct this four-part test to determine
whether:
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(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Here, Appellant has complied with the first three prongs of the
discretionary aspect test to invoke our jurisdiction by raising his issue in a
timely post-sentence motion, filing a timely notice of appeal, and including in
his appellate brief a Rule 2119(f) concise statement. In addition, by asserting
that his sentence beyond the standard range is unreasonable given the
mitigating circumstances, he has raised a substantial question. See, e.g.,
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en
banc) (stating that a substantial question is raised where an appellant alleges
that the sentencing court imposed a sentence in the aggravated range without
adequately considering mitigating circumstances).
In his argument, Appellant recounts the procedural history of his case,
and cites case law for general propositions relating to the discretionary aspects
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of sentencing. See Anders Brief at 8-9. With regard to the specifics of his
claim, Appellant argues:
Specifically, the Appellant argues that the court failed to consider
the mitigating factors of the Appellant’s case. The Appellant
contends that the trial court did not take into consideration the
fact that he has significant mental health issues that he was
currently treating in Crawford County with both therapy and
medication management. The Appellant suffers from longtime
various mental health diagnoses which significantly motivated the
actions taken by the Appellant for the current conviction and those
in the past. The Appellant respectfully argued to the trial court
that his ability to continue with the services that he currently uses
and trusts – and will utilize upon his parole – was only visible if
the court imposed a county-length sentence.
The Appellant argues that given the mitigating factors of his case
his sentence is excessive.
Id.The Commonwealth, in response, states that the trial court considered
“all of the necessary factors” and acted within its discretion in imposing
Appellant’s sentence. Commonwealth Brief at 13.
We review a challenge to a sentence that falls outside of the guidelines
mindful of the following:
The sentencing guidelines are not mandatory, and sentencing
courts retain “broad discretion in sentencing matters, and
therefore, may sentence defendants outside the [g]uidelines.”
[Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 620-
21 (2002); see 42 Pa.C.S. §9721(b)] (citing Commonwealth v.
Ellis, 700 A.2d 948, 958 (Pa.Super.1997)). “In every case where
the court imposes a sentence ... outside the guidelines adopted
by the Pennsylvania Commission on Sentencing ... the court shall
provide a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines.” 42 Pa.C.S. §
9721(b). However, “[t]his requirement is satisfied ‘when the judge
states his reasons for the sentence on the record and in the
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defendant’s presence.’” Commonwealth v. Widmer, 446 Pa.
Super. 408, 667 A.2d 215, 223 (1995), reversed on other
grounds, 547 Pa. 137, 689 A.2d 211 (1997). Consequently, all
that a trial court must do to comply with the above procedural
requirements is to state adequate reasons for the imposition of
sentence on the record in open court. See Robinson, 931 A.2d
at 26 (quoting Commonwealth v. Walls, 846 A.2d 152, 158
(Pa.Super.2004), reversed on other grounds, 592 Pa. 557, 926
A.2d 957 (2007)) (“If a court chooses to sentence a defendant
outside of the sentencing guidelines, it should state on the record
adequate reasons for the deviation.”).
“When imposing sentence, a court is required to consider ‘the
particular circumstances of the offense and the character of the
defendant.’” Commonwealth v. McClendon, 403 Pa.Super. 467,
589 A.2d 706, 712–13 (1991) (en banc) (quoting
Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158,
159 (1985)). “In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.” Id.Commonwealth v. Antidormi, 84 A.3d 736, 760–61 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).
Consistent with the foregoing, and upon review of the record, we agree
with the Commonwealth that Appellant’s sentencing claim does not merit
relief. The crux of Appellant’s argument – that the trial court disregarded
mitigating factors – is not supported by the record.
Contrary to Appellant’s argument, the record belies Appellant’s claim
that the trial court failed to consider mitigating factors when it imposed
Appellant’s sentence. In addition to its commentary about other statutory
considerations, the court addressed Appellant:
. . . I understand where you are. I really do. And I’m pausing
because I’m really trying to think of other options. But everything
goes back to the same answer for me, and that is that the
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sentence that I’m going to impose here is the right one. I’ll
explain it to you in a minute, okay? I don’t do it lightly. It’s not
like I’m wishing to send you away for a long time. By definition,
in the standard range, I’m at 12 months. That’s a long time.
House arrest is always an option in certain cases, but it just
doesn’t fit this case. I mean for a lot of reasons. And so then I’m
looking at whether 12 months in a county facility makes sense
where you’re not going to get any programming, you’re not going
to get a halfway house upon release. You’re not going to get
anything.
And I really think that you have the wish to do better, right? And
you have kind of the sense in your head of what you got to do to
get there. You think you need to find a job. And I would tell you
that while finding a job is a big deal to staying on the right path,
finding an income stream, whether it’s a disability income stream
or whatever is equally important. It’s hard to find work if you
can’t get yourself cleaned up and show up for an interview on time
and all those things. There is nothing wrong with getting some
assistance when you need it to get yourself on stable footing, so
then you can work from there. I agree with you. I don’t want you
for 30 years to not be looking for work. But, you know, let’s get
you squared and started, and I think part of that process will come
from some programming that’s available upon release that the
state has that we just don’t have in our county jail. It makes no
sense to put you there.
I also have a pretty firm starting point whenever I see someone
that has a standard range state area and has been in state before
that, generally speaking, the county does not serve any major
deterrent type of effect from an incarceration standpoint. But,
ultimately, what it comes down to is this: I think that the best
chance for you to get stability and get on your feet right is to do
the time and then come out with some programming that’s laid
out well for you. And that’s not going to happen . . . with a local
sentence.
N.T., 1/30/18, at 10-12.
Based on the foregoing, we find no merit to Appellant’s claims that the
trial court abused its discretion by disregarding mitigating factors when it
imposed Appellant’s sentence. See, e.g., Felmlee, supra (judgment of
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sentence in aggravated range affirmed where court noted mitigating factors
and “carefully reviewed all the facts and made an intelligent decision as to
sentencing”); cf. Commonwealth v. Hyland, 875 A.2d 1175 (Pa. Super.
2005) (judgment of sentence vacated where court “focused exclusively” on
aggravating factors and “virtually ignored” mitigating factors such as
appellant’s lack of prior criminal record, his age, his personal characteristics,
and his life situation). Accordingly, we affirm the judgment of sentence.2
Judgment of sentence affirmed. Petition to withdraw granted. Motion
denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2018
____________________________________________
2 On August 20, 2018, Appellant filed with this Court a pro se Application for
Immediate Release, seeking to have this Court order his immediate release
from incarceration. Appellant’s motion is denied.
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