Com. v. Paullman, L.

J-S95042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LEVELLE PAULLMAN, :
:
Appellant : No. 464 EDA 2016
Appeal from the Judgment of Sentence January 7, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0000339-2014
CP-51-CR-0001024-2012
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 11, 2017
Levelle Paullman (“Paullman”) appeals from the judgment of sentence
imposed following the revocation of his probation. Additionally, Victor
Rauch, Esquire (“Counsel”), has filed a Petition to Withdraw as counsel and
an accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). We grant Counsel’s Petition to Withdraw, and affirm the judgment
of sentence.
On May 17, 2012, Paullman entered a negotiated guilty plea to
burglary in exchange for a sentence of eleven and one-half to twenty-three
months in prison, followed by three years’ probation. On September 12,
2013, Paullman was found in technical violation of his probation, and re-
sentenced to eleven and one-half to twenty-three months in prison followed
by five years’ probation. On October 30, 2014, while still serving the
burglary sentence, Paullman entered a negotiated guilty plea to receiving
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stolen property in exchange for a sentence of three to twenty-three months
in prison, followed by three years’ probation. Further, the trial court re-
sentenced Paullman to three to twenty-three months in prison, followed by
three years’ probation for violating the burglary sentence. The two
sentences were to run concurrently. On January 7, 2016, following a
hearing, Paullman was found in technical violation of the conditions of both
probationary sentences. The trial court resentenced Paullman to concurrent
terms of one and one-half to three years in prison (for each violation).
Paullman filed a Notice of Appeal. The trial court ordered Paullman to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Counsel filed a Statement of intent to file an Anders brief in lieu of filing a
concise statement.
Counsel has filed a brief pursuant to Anders that raises the following
question for our review: “Was [Paullman’s] sentence for technical violations
of probation excessive?” Anders Brief at 3. Additionally, Counsel filed a
Petition to Withdraw on August 9, 2016. Paullman did not file a pro se
response or retain new counsel.
Before addressing Paullman’s issues on appeal, we must determine
whether Counsel has complied with the dictates of Anders and its progeny
in petitioning to withdraw from representation. See Commonwealth v.
Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012). Pursuant to Anders,
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when counsel believes that an appeal is frivolous and wishes to withdraw
from representation, 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
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.
Id. (citation omitted). Additionally, the Pennsylvania Supreme Court has
explained 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).
Here, we conclude that Counsel has substantially complied with each
of the requirements of Anders and Santiago. See Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Counsel indicates
that he made a conscientious examination of the record and determined that
an appeal would be wholly frivolous. Further, Counsel’s Anders brief
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comports with the requirements set forth by the Supreme Court of
Pennsylvania in Santiago. Finally, the record contains a copy of the letter
that Counsel sent to Paullman, advising him of his right to proceed pro se or
retain alternate counsel, file additional claims, and Counsel’s intention to
seek permission to withdraw. Thus, Counsel has complied with the
procedural requirement for withdrawing from representation. We next
examine the record to make an independent determination of whether
Paullman’s appeal is, in fact, wholly frivolous.
Paullman challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] 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).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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.
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Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Paullman filed a timely Notice of Appeal, and included a Rule
2119(f) Statement in his brief. Anders Brief at 7-8. However, Paullman did
not raise his sentencing claim in a motion for reconsideration, or at
sentencing. See Commonwealth v. Reaves, 923 A.2d 1119, 1125 (Pa.
2007) (stating that a “failure to file a motion for reconsideration after failing
to object at sentencing … operates to waive issues relating to the
discretionary aspects of sentencing”); see also Commonwealth v.
Williams, 787 A.2d 1085, 1088 (Pa. Super. 2001) (stating that claims
challenging discretionary aspects of sentencing are waived when the
sentencing judge is not afforded the opportunity to reconsider or modify the
sentence though a post-sentence motion or an objection at sentencing).
Thus, Paullman’s claim is not preserved for our review.
Regardless of this defect, Anders requires that we examine the merits
of Paullman’s claim to determine whether his appeal is, in fact, “wholly
frivolous” in order to rule upon Counsel’s request to withdraw. See
Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super. 1990) (stating
that discretionary aspects of sentencing raised in an Anders brief must be
addressed on appeal, despite the fact that the claim was not properly
presented so as to determine whether counsel is entitled to withdraw); see
also Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(stating that where counsel files an Anders brief, this Court will review
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discretionary aspects of sentencing claims that were otherwise not properly
preserved). Thus, we will review Paullman’s sentencing claims.
Our standard of review for challenges to discretionary aspects of
sentencing is well settled:
[S]entencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias
or ill will. It is more than just an error in judgment.
Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)
(citation omitted).
Paullman asserts that the sentence was manifestly excessive. Anders
Brief at 10, 14.
Upon revocation of probation, the alternatives available to the court
shall be the same as were available at the time of the initial sentencing.
Pa.C.S.A. § 9771(b); see also Commonwealth v. Fish, 752 A.2d 921, 923
(Pa. Super. 2002). When imposing a sentence of total confinement after a
probation, the sentencing court must consider the factors set forth in
sections 9771(c) and 9721(b) of the Sentencing Code. See
Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006).
Violation of probation may result in a more severe sentence than the original
sentence. See Commonwealth v. Smith, 669 A.2d 1008, 1011 (Pa.
Super. 1996); see also Commonwealth v. Bryd, 663 A.2d 229, 231 (Pa.
Super. 1995). Following revocation of probation, a sentencing court need
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not undertake a lengthy discourse for its reasons for imposing a sentence of
total confinement, but the record as a whole must reflect the court’s
consideration of the factors of the crime and character of the offender. See
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
Here, in imposing sentence, the trial court considered Paullman’s
background, Paullman’s criminal history, including numerous probation and
parole violations,1 his mental health challenges, his rehabilitation needs, and
determined that a prison term was needed to vindicate the authority of the
court. See N.T., 1/7/16, at 6-8.
Based upon the foregoing, we discern no abuse of the sentencing
court’s discretion in imposing the sentence. See Commonwealth v.
Sierra, 752 A.2d 910, 914-15 (Pa. Super. 2000) (concluding that the trial
court’s imposition of a prison sentence following probation/parole violations
was proper where the court considered defendant’s prior criminal history,
substance abuse problems, mental health problems, defendant’s statements
at sentencing, and the ineffectiveness of parole and probation in
rehabilitating the defendant).
Further, our independent review discloses no other non-frivolous
issues that Paullman could raise on appeal. Accordingly, we grant Counsel’s
Petition to Withdraw and affirm Paullman’s judgment of sentence.
1
At the probation violation hearing, the probation officer testified that
Paullman had tested positive for cocaine while on probation and had left his
court-ordered treatment facility. N.T., 1/7/16, at 5.
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Petition to Withdraw granted; judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
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