Com. v. Benson, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT LEE BENSON :
:
Appellant : No. 817 WDA 2021
Appeal from the Judgment of Sentence Entered March 29, 2021
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000494-2020,
CP-61-CR-0000764-2018
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 5, 2022
Appellant, Robert Lee Benson, appeals nunc pro tunc from the judgment
of sentence entered in the Venango County Court of Common Pleas, following
his guilty plea to two counts of simple assault, and one count of resisting
arrest.1 We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows. On
January 14, 2019, Appellant pled guilty at docket CP-XX-XXXXXXX-2018
(“docket 764-2018”) to one count of simple assault, based on a physical
altercation Appellant had with his paramour (“Victim”). As part of the plea
deal, the Commonwealth agreed to recommend a sentence of probation. The
court sentenced Appellant on March 12, 2019, in accordance with the plea
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1 18 Pa.C.S.A. §§ 2701(a)(1); and 5104, respectively.
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deal and imposed a term of 24 months’ probation. The court revoked
probation on June 13, 2019, and resentenced Appellant on July 19, 2019, to
24 months’ probation. The court revoked probation again on September 26,
2019, and resentenced Appellant on October 22, 2019, to 146 days to 23
months and 29 days’ imprisonment. Appellant was paroled on October 25,
2019.
On February 5, 2021, Appellant pled guilty at docket No. CP-61-CR-
0000494-2020 (“docket 494-2020”), to two counts of simple assault and one
count of resisting arrest. Appellant’s guilty plea stemmed from another
incident of domestic violence with Victim, during which Appellant also
struggled with police and resisted arrest. The Commonwealth agreed as part
of the plea deal to recommend standard range sentences. The court deferred
sentencing pending preparation of a pre-sentence investigation (“PSI”) report.
On February 9, 2021, the court revoked parole at docket 764-2018, based on
Appellant’s convictions at docket 494-2020.
Appellant proceeded to sentencing at both dockets on March 29, 2021.
At sentencing, the court reviewed Appellant’s prior record score and the
offense gravity score for each crime. The court considered Appellant’s actions
at docket 494-2020 in slamming Victim against a wall and choking her,
resisting arrest, and almost injuring the officers in the process. The court
further had the benefit of a PSI report. The court also heard testimony from
Victim. The court noted Appellant’s long history of violent offenses, and that
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Appellant was still on supervision for his prior assault on Victim at docket 764-
2018 when he committed the crimes at docket 494-2020. Ultimately, the
court abided by the terms of the plea deal at docket 494-2020, imposing
standard range sentences for each crime. Specifically, the court sentenced
Appellant to 1 to 2 years’ imprisonment for both simple assault convictions,
and 9 to 24 months’ imprisonment for resisting arrest. The court imposed
each sentence consecutively, for an aggregate term at docket 494-2020 of 33
to 72 months’ imprisonment. The court noted that any lesser sentence would
depreciate the seriousness of the offenses. At docket 764-2018, the court
immediately re-paroled Appellant, noting that parole would expire at this
docket on May 28, 2021.
On April 19, 2021, Appellant sought reinstatement of his post-sentence
motion rights nunc pro tunc. The court granted relief that day, and Appellant
timely filed post-sentence motions nunc pro tunc on April 26, 2021. The court
denied relief that day. Appellant did not file a timely direct appeal but
following restoration of his direct appeal rights nunc pro tunc on July 2, 2021,
Appellant timely filed a nunc pro tunc notice of appeal on July 12, 2021. On
July 21, 2021, the court ordered Appellant to file a concise statement of errors
complained of on appeal. Appellant timely complied on July 23, 2021.
As a preliminary matter, we observe that Appellant filed a single notice
of appeal listing both underlying docket numbers, in violation of
Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018) (holding that
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common practice of filing single notice of appeal from order involving more
than one docket will no longer be tolerated; such practice violates Pa.R.A.P.
341, which requires filing of separate appeals from order that resolves issues
arising on more than one docket; failure to file separate appeals generally
requires appellate court to quash appeal). Recently, however, in
Commonwealth v. Young, ___ Pa. ___, 265 A.3d 462 (2021), the Supreme
Court expressly overruled the pronouncement in Walker that the failure to
file separate notices of appeal in connection with issues arising at more than
one docket necessarily requires this Court to quash the appeal. The Young
Court held that Pa.R.A.P. 341 “requires that when a single order resolves
issues arising on more than one docket, separate notices of appeal must be
filed from that order at each docket; but, where a timely appeal is erroneously
filed at only one docket, [Pa.R.A.P.] 902 permits the appellate court, in its
discretion, to allow correction of the error, where appropriate.” Id. at ___,
265 A.3d at 477.
Under Young, we could remand for Appellant to file corrected notices
of appeal at each underlying docket. See, e.g., Interest of A.S.C., No. 1015
EDA 2021 (Pa.Super. filed July 20, 2022) (unpublished memorandum)
(remanding under Young for appellant to file corrected notice of appeal at
each separate trial court docket within 10 days). See also Pa.R.A.P. 126(b)
(stating we may rely on unpublished decisions filed in this Court after May 1,
2019 for their persuasive value).
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Nevertheless, we decline to take such action in this case because it is
clear from Appellant’s argument that he is challenging only his sentence at
docket 494-2020. Notwithstanding Appellant’s reference to both dockets in
his statement of questions presented, the crux of his argument is that the
court imposed too harsh of a sentence of imprisonment. Here, the court
imposed no sentence of imprisonment at docket 764-2018. Rather, the
court immediately re-paroled Appellant at that docket. Indeed, the trial court
opinion states:
[I]t is not clear what, specifically, [Appellant] considers to
be excessive about the sanction for his parole revocation at
[docket] 764-2018, even when considered in conjunction
with the sentence at [docket] 494-2020. The court took
none of [Appellant’s] street time, properly applied his time
served to [docket] 764-2018, directed that he served the
unexpired term, and re-paroled him immediately. As a
result, following his sentencing at [docket] 494-2020,
[Appellant] had approximately two months remaining on his
sentence at [docket] 764-2018, which expired on May 28,
2021. To the extent that [Appellant] argues that the original
sentence—following his second probation revocation in nine
months in October of 2019—of 146 days to 24 months less
a day was excessive, that is not the proper subject of this
appeal. …
(Trial Court Opinion, filed 1/3/22, at 4). Under these circumstances, we
consider Appellant’s claims at docket 764-2018 abandoned and confine our
review to Appellant’s claims at docket 494-2020.
As a second preliminary matter, appellate counsel seeks to withdraw
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159,
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978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition
the Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; 2)
file a brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw:
Neither Anders nor McClendon2 requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
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2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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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.
Id. at 178-79, 978 A.2d at 361. After confirming that counsel has met the
antecedent requirements to withdraw, this Court makes an independent
review of the record to confirm that the appeal is wholly frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also
Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).
Instantly, appellate counsel has filed a petition to withdraw. The petition
states that counsel reviewed the trial court record and determined that the
appeal is frivolous. Counsel also served a copy of the petition to Appellant,
along with a letter advising him of his right to file a response to counsel’s
petition as either a pro se litigant, or through new counsel. Further, counsel
filed an Anders brief which explains the facts and procedural history of the
case and discusses the relevant law. Counsel’s brief also cites to the record
and explains counsel’s conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the requirements set forth
in Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
The sentence in this case was manifestly excessive and
clearly unreasonable in that the period of incarceration he
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received for both his revocation sentence and his sentence
on the new charges was too harsh considering the
aggregate amount of time he received.
(Anders Brief at 2).3
Appellant argues that a lighter imprisonment sentence could have
achieved the goals of protecting the public and serving the rehabilitative needs
of Appellant. Appellant asserts the court relied too heavily on Victim’s remarks
at sentencing. Appellant complains the court imposed consecutive sentences
at the top of the standard range for each crime. Appellant concludes the
sentence was excessive, the court abused its sentencing discretion, and this
Court must grant relief. We disagree.
Initially, a challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979(2001). Prior to reaching the merits of a discretionary sentencing issue:
We 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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
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3 Appellant has not filed a responsive brief pro se or with newly-retained
counsel.
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denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
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.”
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal
citation omitted). In other words, an appellant’s Rule 2119(f) statement must
sufficiently articulate the manner in which the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).
This Court has stated:
Pennsylvania law affords the sentencing court discretion to
impose [a] sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this
discretion does not raise a substantial question. In fact, this
Court has recognized the imposition of consecutive, rather
than concurrent, sentences may raise a substantial question
in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature
of the crimes and the length of imprisonment.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013), appeal
denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation
marks omitted).
Further, this Court will not disturb the judgment of the sentencing court
absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843-9-
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(Pa.Super. 2006).
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to determine
the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. Simply
stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are
difficult to gauge from the cold transcript used upon
appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that
should not be lightly disturbed. Even with the advent of the
sentencing guidelines, the power of sentencing is a function
to be performed by the sentencing court. Thus, rather than
cabin the exercise of a sentencing court’s discretion, the
guidelines merely inform the sentencing decision.
Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62
(2007) (internal quotation marks, footnotes, and citations omitted).
Pursuant to Section 9721(b), “the court shall follow the general principle
that the sentence imposed should call for confinement that is consistent with
the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). See also Commonwealth
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v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where court had benefit
of PSI report, we can presume it was aware of relevant information regarding
defendant’s character and weighed those considerations along with mitigating
statutory factors).
Instantly, the trial court explained:
[Appellant’s] aggregated sentence—a minimum of just
under 3 years and a maximum of 6 years—can hardly be
described as extreme or grossly disproportionate under the
circumstances. [Appellant] has been convicted multiple
times over the course of the past two to three years in
connection with violent incidents where [Appellant] injured
the same victim, his paramour. The sentences here are all
within the standard guideline ranges, albeit at the top of the
standard range. … [Appellant] may believe his sentence to
be unduly harsh, but the circumstances here fall well short
of the extreme circumstances necessary to raise a
substantial question.
[Appellant’s] argument that the court improperly weighed
the victim’s statement in crafting his sentence is of no avail.
The court is not certain what portion of the record would
support [Appellant’s] claim. Regardless, a defendant’s
claim that a court was unduly influenced by a victim’s
statement does not raise a substantial question.
(Trial Court Opinion at 5) (internal citations omitted).
We agree with the court that Appellant’s claims, as presented, do not
raise a substantial question. See Commonwealth v. Zirkle, 107 A.3d 127,
133 (Pa.Super. 2014), appeal denied, 632 Pa. 671, 117 A.3d 297 (2015)
(considering appellant’s challenge that court was unduly influenced by victims’
statements and stating: “[A] claim that a court did not weigh the factors as
an appellant wishes does not raise a substantial question”); Austin, supra.- 11 -
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Moreover, the court had the benefit of a PSI report, so the court was
aware of all relevant and mitigating factors. See Fowler, supra. The court
further noted in the sentencing order that any lesser sentence would
depreciate the seriousness of the offenses. Thus, even if Appellant’s claims
had raised a substantial question, they would not merit relief. See Fullin,
supra. See also Walls, supra. Following our independent review of the
record, we agree the appeal is frivolous. See Dempster, supra; Palm,
supra. Accordingly, we affirm and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2022
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