Com. v. Clark, E., Jr.

J-S81016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDDIE LEE CLARK, JR. :
:
Appellant : No. 1589 MDA 2018
Appeal from the Judgment of Sentence Entered August 9, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0005979-2017
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED MAY 13, 2019
Appellant Eddie Lee Clark, Jr., appeals from the Judgment of Sentence
imposed after he entered an open guilty plea to one count of Aggravated
Cruelty to Animal.1 Appellant challenges the discretionary aspects of his
sentence. With this appeal, Appellant’s counsel has filed a Petition to
Withdraw and an Anders2 brief. We affirm the Judgment of Sentence and
grant counsel’s Petition to Withdraw.
On August 9, 2018, Appellant entered an open guilty plea to one count
of Aggravated Cruelty to Animal. The court sentenced Appellant within the
sentencing guidelines to 12 months to 36 months’ of incarceration. Trial Ct.
____________________________________________
1 18 Pa.C.S. § 5534(a)(2).
2 Anders v. California, 386 U.S. 738 (1967).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S81016-18
Op., dated 9/28/18, at 2. On August 17, 2018, Appellant filed a Post-Sentence
Motion to Modify Sentence, which the Court denied on August 20, 2018.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925. Appellant’s counsel has filed both an Anders Brief and a
Petition to Withdraw as Counsel. Appellant has not filed a response.
As a preliminary matter, we address counsel’s Petition to Withdraw.
“When presented with an Anders Brief, this Court may not review the merits
of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). In order for counsel to withdraw from an appeal
pursuant to Anders, our Supreme Court has determined that counsel must
meet the following requirements:
(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).
Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that he sent Appellant a copy of
-2-
J-S81016-18
the Anders Brief and petition to withdraw, as well as a letter explaining to
Appellant that he has the right to retain new counsel, proceed pro se, or to
raise any additional points. See Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we now have the
responsibility to “make a full examination of the proceedings and make an
independent judgment as to whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 354-55 n.5 (citation omitted);
see Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (noting Anders requires the reviewing court to “review ‘the case’ as
presented in the entire record with consideration first of issues raised by
counsel”).
We first address the issue raised by counsel in the Anders Brief:
Whether the trial court erred in failing to sentence Appellant in the
mitigated range of the sentencing guidelines based upon his true
expression of remorse and his work to improve himself while in
the Berks County Jail System?
Anders Brief at 5.
Appellant challenges the discretionary aspects of his sentence,
contending that the trial court abused its discretion in failing to sentence him
in the mitigated range of the sentencing guidelines. See Anders Brief at 13-
18.
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
-3-
J-S81016-18
768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue, we must determine: (1) whether appellant has
filed a timely notice of appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under the
Sentencing Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006).
In the instant case, Appellant met the first three elements by filing a
timely Notice of Appeal, properly preserving the issue in a Post-Sentence
Motion to modify his sentence, and including a Statement of Reasons Relied
Upon for Allowance of Appeal pursuant to Pa.R.A.P. 2119(f). Thus, we proceed
to address whether Appellant’s sentencing challenge raises a substantial
question for our review.
Whether a substantial question has been raised regarding discretionary
sentencing is determined on a case-by-case basis. Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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.” Id. (citation and quotation omitted).
-4-
J-S81016-18
Appellant asserts that the trial court abused its discretion by failing to
mitigate his sentence based on his true expression of remorse and the positive
measures he had taken during his incarceration in Berks County Jail. Anders
Brief at 13-18.
Sentencing is a matter vested in the sound discretion of the sentencing
court, and a sentence will not be disturbed on appeal without a manifest abuse
of that discretion. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.
Super. 2003). To constitute an abuse of discretion, the sentence must either
exceed the statutory limits or be manifestly excessive; it is not shown merely
by an error in judgment by the court. Id. Rather, the appellant must
demonstrate, 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. Id.Claims that the sentencing court did not adequately consider mitigating
factors generally do not raise a substantial question. See Commonwealth
v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). Additionally, we have held
that the court’s refusal to weigh mitigating factors as an appellant wished,
absent more, does not raise a substantial question. Moury, 992 A.2d 162,
175; see also Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.
2014) (“[W]e have held that a claim that a court did not weigh the factors as
an appellant wishes does not raise a substantial question”).
-5-
J-S81016-18
Appellant’s claim amounts to no more than a bald allegation that the
court abused its discretion in failing to consider mitigating factors as he
wished. The trial court considered the Appellant’s presentence investigation
report, nature of the offense, sentencing guidelines, and Appellant’s written
and oral colloquies, which discussed mitigating factors. N.T. 8/9/18 at 7-15.
Additionally, the court sentenced Appellant within the standard range of the
sentencing guidelines. Id.; Trial Ct. Op. at 2. Pursuant to the above case
law, Appellant has failed to raise a substantial question.
Additionally, our independent review of the record does not reveal any
non-frivolous arguments available to Appellant. We, therefore, affirm
Appellant’s Judgment of Sentence and grant counsel’s Petition to Withdraw.
Judgment of Sentence affirmed. Counsel’s Petition to Withdraw as
Counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/13/2019
-6-