Com. v. Reynolds, M.

J-S60020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK G. REYNOLDS
Appellant No. 477 MDA 2014
Appeal from the Judgment of Sentence January 3, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at Nos: CP-40-CR-0000335-2013, and
CP-40-CR-0000856-2013
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 08, 2014
Appellant Mark G. Reynolds appeals the Court of Common Pleas of
Luzerne County’s (trial court) January 3, 2014 judgment of sentence.
Appellant’s counsel has filed a petition to withdraw, alleging that this appeal
is wholly frivolous, and filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). For the reasons set forth below, we affirm and grant the petition to
withdraw.
The facts and procedural history underlying this appeal are
undisputed. Briefly, on November 18, 2013, Appellant pled guilty to theft by
deception (18 Pa.C.S.A. § 3922(a)(3)) at docket number 335 and to two
counts of terroristic threats with intent to terrorize (18 Pa.C.S.A.
§ 2706(a)(1)) and resisting arrest (18 Pa.C.S.A. § 5104) at docket number
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856. On January 3, 2014, the trial court sentenced Appellant to thirteen to
thirty months’ incarceration in a state correctional institution for his
convictions for theft by deception, and the two counts of terroristic threats.
The trial court also sentenced Appellant to nine to eighteen months’
imprisonment for the resisting arrest conviction. The court ordered the
sentences to run concurrently.
On January 13, 2014, Appellant filed a motion to modify his sentence,
requesting that he be permitted to serve his sentence at the Luzerne County
Correctional Facility (county facility). The trial court denied the motion on
January 16, 2014. Appellant appealed to this Court.
Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, in which he argued that the trial court abused its
discretion in refusing to allow him to serve his sentence at the county
facility, the trial court issued a Pa.R.A.P. 1925(a) opinion on April 17, 2014.
In its Rule 1925(a) opinion, the trial court concluded that Appellant’s
challenge to the discretionary aspects of the sentence imposed was
meritless. Specifically, the trial court concluded that Appellant failed to raise
a substantial question.
On July 10, 2014, Appellant’s counsel filed a motion to withdraw as
counsel and filed an Anders brief, wherein counsel raises a single issue for
our review: “Whether the [t]rial [c]ourt abused its discretion in sentencing
[Appellant].” Anders/Santiago Brief at 1.
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When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 1) petition the
court for leave to withdraw stating that, after making a conscientious
examination of the record, counsel has determined that the appeal would be
frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s petition to withdraw from representation provides
that counsel reviewed the record and concluded that the appeal is frivolous.
Furthermore, counsel notified Appellant that he was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
his Anders brief. Counsel also advised Appellant of his right to retain new
counsel, proceed pro se, or raise any additional points he deems worthy of
this Court’s attention. Accordingly, we conclude that counsel has satisfied
the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court
held:
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[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.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates
that he has complied with the briefing requirements of Santiago. We,
therefore, conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met his 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 355 n.5. Thus,
we now turn to the merits of Appellant’s appeal.
Appellant essentially argues that the trial court abused its discretion in
requiring him to serve his sentence at a state correctional institution, instead
of the county facility.
It is well-settled that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215,
1220 (Pa. Super. 2011). Rather, where an appellant challenges the
discretionary aspects of a sentence, an appellant’s appeal should be
considered as a petition for allowance of appeal. Commonwealth v.
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W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first two requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, and
preserved the issue on appeal through his motion to modify the sentence
imposed. Appellant, however, has failed to meet the third prong, because
he failed to include a Pa.R.A.P. 2119(f) statement in his brief.1 Nonetheless,
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1
Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
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“[a] failure to include the Rule 2119(f) statement does not automatically
waive an appellant’s argument,” unless the appellee, i.e., the
Commonwealth, objects to such omission. Commonwealth v. Roser, 914
A.2d 447, 457 (Pa. Super. 2006), appeal denied, 927 A.2d 624 (Pa. 2007).
Instantly, the Commonwealth has not objected to the absence of the Rule
2119(f) statement as it did not file an appellate brief and, as a result, we will
review Appellant’s claim.
Under Section 9762 of the Sentencing Code, 42 Pa.C.S.A. § 9762,
All persons sentenced three or more years after the effective
date [(November 24, 2008)] of this subsection to total or partial
confinement shall be committed as follows:
....
(2) Maximum terms of two years or more but less than five
years shall be committed to the Department of Corrections
for confinement, except upon a finding of all of the
following:
(i) The chief administrator of the county prison, or
the administrator’s designee, has certified that the
county prison is available for the commitment of
persons sentenced to maximum terms of two or
more years but less than five years.
(ii) The attorney for the Commonwealth has
consented to the confinement of the person in the
county prison.
(iii) The sentencing court has approved the
confinement of the person in the county prison
within the jurisdiction of the court.
42 Pa.C.S.A. § 9762(b)(2) (emphasis added).
Here, based on the plain language of Section 9762(b)(2), the trial
court did not abuse its discretion in directing Appellant serve his sentence at
a state correctional institution, instead of the county facility. Moreover, we
note that Appellant provides absolutely no evidentiary support, nor does our
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review of the record reveal any, for how he meets the exceptions under
Section 9262(b)(2). As the trial court found, none of the exceptions apply in
the case sub judice. Trial Court Opinion, 4/17/14, at 6.
We have conducted an independent review of the record and
addressed Appellant’s issue regarding his state sentence. Based on our
conclusions above, we agree with counsel that the issue Appellant seeks to
litigate in this appeal is wholly frivolous. Also, we do not discern any non-
frivolous issues that Appellant could have raised. We, therefore, grant
counsel’s petition to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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