Com. v. Dignard, J.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JUSTIN SCOTT DIGNARD, : No. 1629 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, August 9, 2016,
in the Court of Common Pleas of Venango County
Criminal Division at No. CP-61-CR-0000143-2016
BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 15, 2018
Justin Scott Dignard appeals from the August 9, 20161 judgment of
sentence entered in the Court of Common Pleas of Venango County following
his convictions for robbery—threat of serious bodily injury and robbery
(felony 2).2 Matthew C. Parson, Esq. (“Attorney Parson”) has filed an
application to withdraw, alleging that the appeal is frivolous, accompanied by
1 Appellant’s appeal rights were reinstated pursuant to a petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546,
proceeding. Appellant’s appellate counsel mistakenly stated that he appealed
to this court from the order of October 2, 2017, which granted the PCRA
petition. Appellant’s appeal properly lies from the judgment of sentence,
dated August 9, 2016. The caption originally stated that the appeal was from
the PCRA order. We have amended the caption accordingly.
2 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 3701(a)(1)(v), respectively.
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an Anders brief.3 After careful review, we grant counsel’s petition to withdraw
and affirm the judgment of sentence.
The following factual and procedural history as originally set forth by the
trial court is as follows:
The above-captioned cases arise out of two armed
robberies of businesses located in Oil City,
Pennsylvania, occurring on December 30, 2011 and
June 1, 2012, respectively. [Appellant] eluded
authorities for a lengthy period of time, but was
eventually arrested . . . .
[Appellant] signed a plea agreement dated June 2,
2016, in which he pled guilty to Count 2, Robbery-
Threat of Serious Bodily Injury (Felony 1) at
CR No. 143-2016, and Count 1, Robbery (Felony 2) at
CR No. 142-2016. The Commonwealth recommended
[appellant] serve standard range sentences at both
counts and that they be served concurrently.
Prior to sentencing, [appellant] underwent a
pre-sentence investigation and his prior record score
was calculated as being a three (3). The guidelines
called for a sentence of fifteen (15) to
twenty-one (21) months, and the statutory minimum
and maximum sentences were sixty (60) to one
hundred and twenty (120) months at Count 1, Felony
2 Robbery. The guidelines called for a sentence of
forty-two (42) to fifty-four (54) months, and the
statutory minimum and maximum sentences were
one hundred and twenty (120) to two hundred and
forty [240] months at Count 2, Felony 1 Robbery-
Threat of Serious Bodily Injury.
On August 9, 2016, [appellant] was sentenced by this
Court at CR No. 142-2016 on Count 1, Felony 2
Robbery as follows:
3See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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pay the costs of prosecution, all other
costs, pay a fine $0 in order to facilitate
restitution, make restitution payable to
the Clerk of Court[s] of Venango County,
in the sum of $900, for the use of Leroy
and Elizabeth George, said restitution
shall be paid in ten (10) years and is a
condition of sentence, and undergo an
imprisonment in a STATE INSTITUTION
OF THE DEPARTMENT OF CORRECTIONS
for a minimum of which shall be
twenty-one (21) months, the maximum of
which shall be ten (10) years.
Judge Boyer’s August 9, 2016 Amended Sentence
Order (emphasis in original). In the same sentence
order, [appellant] was sentenced by this Court at
CR No. 143-2016 on Count 2, Felony 1 Robbery-
Threat of Serious Bodily Injury as follows:
pay the costs of prosecution, all other
costs, pay a fine $0 in order to facilitate
restitution, make restitution payable to
the Clerk of Court[s] of Venango County,
in the sum of $6,130, for the use of
Thorne’s Market, 809 Grandview Road, Oil
City, Pennsylvania, 16301 (Said
Restitution shall be joint and several with
codefendant, Adrian Dignard at
C.R. No. 78-2016.) said restitution shall
be paid with [sic] ten (10) years and is a
condition of sentence, and undergo an
imprisonment in a STATE INSTITUTION
OF THE DEPARTMENT OF CORRECTIONS
for a minimum of which shall be forty-two
(42) months, the maximum of which shall
be twenty (20) years.
Id. (emphasis in original). The Court stated that the
sentences imposed at CR No. 142-2016 and
CR No. 143-2016 were to be served concurrently. Id.
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[Appellant] filed a timely notice of appeal, and
[appellant] filed the instant Concise Statement on
November 17, 2017.[4]
Trial court opinion, 12/8/175 at 1-3.
Appellant raises the following issue for this court’s review: “Whether
the Sentencing Court erred as a matter of law or abused its discretion when
the Sentencing Court ordered a Sentence to the maximum of the statute for
the sole basis of ensuring restitution was paid in full[?]” (Appellant’s brief
at 5.)
On February 16, 2018, Attorney Parson filed in this court a petition for
leave to withdraw as counsel, because he found the appeal to be “wholly
frivolous,” and an Anders brief. (Petition for leave to withdraw as counsel,
2/16/18 at 1, ¶ 4 (emphasis in original).) This court denied the petition to
withdraw on the basis that Attorney Parson failed to comply with the third and
fourth requirements of Santiago in that he failed to set forth his conclusion
that the appeal was frivolous and failed to set forth his reasons for concluding
that the appeal was frivolous.
4 Appellant filed for reinstatement of his appeal rights due to ineffective
assistance of counsel under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. On October 2, 2017, the trial court granted the
PCRA petition and ordered Attorney Parson, appellant’s PCRA counsel, to file
a direct appeal on behalf of appellant from the judgment of sentence.
Attorney Parson filed the notice of appeal on October 26, 2017.
5The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on December 8,
2017.
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When this court denied the petition to withdraw, we remanded this case
to the trial court with instruction to counsel to file either a compliant
Anders/Santiago brief or an advocate’s brief within 30 days of the date of
this court’s memorandum. Attorney Parson filed a timely Anders brief on
June 20, 2018.
A request by appointed counsel to withdraw
pursuant to Anders and Santiago gives rise to
certain requirements and obligations, for both
appointed counsel and this Court. Commonwealth
v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods, 939
A.2d 896, 898 (Pa.Super. 2007). This
Court has summarized these
requirements as follows:
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
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petition and brief to the
appellant, advising the
appellant of the right to retain
new counsel, proceed pro se
or raise additional points
worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise requirements of an Anders brief:
[T]he Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
. . . 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 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
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issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked the
existence of potentially non-frivolous issues.” Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Regarding the requirements of Anders, Attorney Parson has filed a
petition that avers that, after a conscientious examination of the record, he
finds the appeal to be wholly frivolous. He has also filed a brief that attempts
to set forth the issues that might arguably support the appeal. He identifies
the issue in the statement of questions involved in the brief as “Whether the
Sentencing Court erred as a matter of law or abused its discretion when the
Sentencing Court ordered a Sentence to the maximum of the statute for the
sole basis of ensuring restitution was paid in full[?]” (Anders brief at 5.) The
body of the argument section of the brief addresses the issue contained in the
statement of questions involved, so the issue set forth in the brief complies
with Anders. A review of the record reveals that Attorney Parson complied
with the requirements of Anders concerning notification to appellant.
With respect to the requirements of Santiago, Attorney Parson has
provided a summary of the procedural history and facts. He has also set forth
his conclusion that the appeal is frivolous. Attorney Parson reaches this
conclusion because, based on his review of the relevant case law, the trial
court’s imposition of a sentence with the maximum sentence at the statutory
limit does not constitute an abuse of discretion.
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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. As Attorney Parson has fulfilled
the requirements of Santiago, we now turn to the merits of appellant’s
appeal.
The possible issue raised in the brief is that the trial court erred as a
matter of law or abused its discretion when it ordered a sentence to the
statutory maximum for the sole basis of ensuring that restitution was paid in
full.
In reviewing the record, the trial court had the benefit of a pre-sentence
investigation report when it imposed the sentence on appellant. The trial court
imposed minimum sentences within the sentencing guidelines for both robbery
convictions. The trial court imposed the statutory maximums for both robbery
convictions and ran the sentences concurrent to one another. At the
sentencing hearing, the trial court initially stated, “I am putting the maximum
period of supervision in, that’s because of the restitution.” (Notes of
testimony, 8/9/16 at 22.) However, later at the sentencing hearing, the trial
court attempted to clarify the sentencing with respect to restitution:
At the restitution I need to say, restitution shall be
paid within twenty years. Restitution is a condition of
sentence. Now that’s on the---wow that’s---no I can’t
do that because of the ten years. I need to say on
both of these cases, restitution shall be paid within ten
years and is a condition of sentence, because the max
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on that $6,130 is the ten year sentence, it can’t
exceed that. So restitution has to be paid in ten years
as a condition of sentence on both. Okay.
Id. at 26-27.
In addition, while discussing the imposition of the sentence, the trial
court stated, “[a]ny lesser sentence would depreciate the seriousness of the
offense.” (Id. at 25.)
After a review of the sentencing hearing transcript, it is apparent that
the trial court did not impose the statutory maximum sentences in order for
appellant to pay restitution. One can see how appellant might think that the
trial court based the sentence on restitution, but a review of the transcript as
a whole yields a different interpretation. Attorney Parson is correct when he
determined that this issue was frivolous as it is not an accurate
characterization of the trial court’s reasoning for the sentence. On the record,
the trial court stated that it imposed the sentences due to the seriousness of
the offenses. An appeal based on this issue of a sentence based on restitution
would be frivolous. This court reviews challenges to discretionary aspects of
sentencing based on whether there was a manifest abuse of discretion.
Commonwealth v. Mola, 838 A.2d 791, 792 n.2 (Pa.Super. 2003). This
court agrees with Attorney Parson that the trial court did not commit a
manifest abuse of discretion.
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Additionally, our independent review of the entire record has not
disclosed any potentially non-frivolous issues. Consequently, we grant
counsel’s petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2018
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