Com. v. Moore, M.

J-S61022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUIS AMIN MOORE :
:
Appellant : No. 1305 EDA 2019
Appeal from the Judgment of Sentence Entered March 20, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006068-2017
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED DECEMBER 13, 2019
Appellant, Marquis Amin Moore, appeals from the judgment of sentence
entered on March 20, 2019, after the trial court found him in violation of his
probation. On appeal, Appellant’s counsel filed a petition to withdraw as
counsel and a brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review,
we grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
We briefly summarize the facts and procedural history of this case as
follows. On September 13, 2017, Appellant was arrested and charged with
knowing and intentional possession of a controlled substance pursuant to 35
P.S. § 780-113(a)(16), possession of drug paraphernalia under 35 P.S.
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* Former Justice specially assigned to the Superior Court.
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§ 780-113(a)(32), false identification to law enforcement in violation of 18
Pa.C.S.A. § 4914(A), and other offenses. See Police Criminal Complaint,
9/13/17. On October 19, 2017, Appellant entered guilty pleas to simple
possession and false identification to law enforcement. The trial court
sentenced him to time served to 12 months’ incarceration for simple
possession. In addition, the trial court sentenced Appellant to serve one year
of probation (consecutive to his sentence of total confinement) for false
identification to law enforcement. One of the conditions of Appellant’s
probationary sentence required him to complete and follow the
recommendations of Diagnostic Services at the Delaware County jail, including
drug and alcohol evaluations.
On February 11, 2019, Delaware County’s Adult Probation and Parole
Services Department (the department) issued a request for a Gagnon II1
hearing in which it alleged that Appellant engaged in inappropriate behavior
during two sessions of a drug and alcohol program. This conduct included the
use of foul language, aggressive gesturing, stealing supplies, extorting other
participants, and making inappropriate remarks toward instructors. On
February 22, 2019, the department issued a Gagnon II hearing report in
which it recommended that Appellant be held in violation of the terms of his
probation and that he be resentenced to a period of total confinement.
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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The trial court convened a hearing on March 20, 2019 to consider
Appellant’s alleged probation violations. At the hearing, Appellant did not
contest his alleged conduct and the trial court found him in violation of his
probation. Consequently, the court resentenced Appellant to six to 12 months’
incarceration.2 In addition, the court ordered Appellant to undergo a
psychiatric evaluation.
Appellant filed a counseled notice of appeal on April 18, 2019.
Thereafter, on April 24, 2019, the court ordered Appellant to file and serve a
concise statement pursuant to Pa.R.A.P. 1925(b). On May 13, 2019, counsel
for Appellant filed a statement pursuant to Pa.R.A.P. 1925(c)(4) declaring that
he intended to file an Anders brief and seek leave to withdraw. The trial court
issued its opinion on June 11, 2019.
Before reaching the merits of the appeal, we must first address the
propriety of counsel's petition to withdraw and Anders brief. We have
previously determined:
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
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2Appellant’s six to 12 month sentence was ordered to run concurrent to other
sentences the trial court imposed at the conclusion of the March 20, 2019
hearing.
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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 the
appellant's behalf). By contrast, if counsel's petition and brief
satisfy Anders, we will then undertake our own review of the
appeal to determine if it is wholly frivolous. If the appeal is
frivolous, we will grant the withdrawal petition and affirm the
judgment of sentence. However, if there are non-frivolous issues,
we will deny the petition and remand for the filing of an advocate's
brief.
Our Supreme Court has clarified portions of the Anders
procedure:
In 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.
Santiago, 978 A.2d at 361.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (some
citations omitted).
Upon review, counsel has complied with all of the foregoing
requirements pursuant to Anders and Santiago. Appellant has not
responded. Thus, we proceed to review the issue set forth in counsel’s
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Anders brief before conducting an independent review of the record to discern
if there are non-frivolous issues overlooked by counsel. Id.
Counsel for Appellant identifies only a single issue which arguably
supports this appeal. This claim alleges that the trial court imposed an unduly
harsh and excessive sentence in view of the trivial nature of Appellant’s
alleged violations and the trial court’s imposition of a sentence of incarceration
without regard to counsel’s arguments. See Anders Brief at 3. In support of
this claim, counsel asserts that Appellant’s sentence was unduly harsh and
excessive since “the mitigating circumstances presented in the record far
outweigh[ed] the need to impose the amount of jail time” ordered by the trial
court. Id. at 8.
It is now settled that we may review discretionary sentencing challenges
within the context of an appeal from the revocation of probation.
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en
banc). As such, we undertake a review of Appellant’s challenge to the
discretionary aspects of his revocation sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to appellate review as of right.
Commonwealth v. Sierra, 752 A.2d 910, 912 (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. 1410 [now Rule 720]; (3) whether appellant's brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
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substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
[Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super.
2005),] quoting Commonwealth v. Martin, 611 A.2d 731, 735
(Pa. Super. 1992). “Objections to the discretionary aspects of a
sentence are generally waived if they are not raised at the
sentencing hearing or raised in a motion to modify the sentence
imposed at that hearing.” Id. (citations omitted).
Commonwealth v. Evans, 901 A.2d 528, 533-534 (Pa. Super. 2006).
Applying this test, we find that Appellant preserved his claim for
appellate review. First, Appellant filed a timely notice of appeal. In addition,
although Appellant did not file a motion to have the trial court reconsider his
sentence, he raised the instant claims at his sentencing hearing. Third,
Appellant included a statement pursuant to Pa.R.A.P. 2119(f) in his brief.
Lastly, we conclude that Appellant has raised a substantial question for our
review. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014) (noting that this Court has held that an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question), appeal denied, 105 A.3d 736 (Pa.
2014).
Turning to the merits of Appellant’s discretionary sentencing challenge,
we conclude that his claims are, indeed, frivolous.
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
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judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
At sentencing, Appellant did not contest the facts which showed him to
be both uncooperative and disruptive in a drug treatment program. As such,
there was ample support for the trial court to conclude that probation was no
longer a feasible alternative and that a term of incarceration was needed to
vindicate the authority of the court. Under these circumstances, a six to 12
month sentence, concurrent to other punishments imposed at the March 20,
2019 hearing, was imminently reasonable. In the absence of any evidence of
bias or ill will, we are without grounds to disturb the trial court’s sentence.
Finally, we have conducted an independent review of the entire record as
required by Anders and have not identified any other non-frivolous issues.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/19
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