Com. v. Peebles, K.

J-S41043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN PAUL PEEBLES :
:
Appellant : No. 72 MDA 2017
Appeal from the Judgment of Sentence December 8, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000878-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 04, 2017
Appellant, Kevin Paul Peebles, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following his open
guilty plea to failure to comply with sex offender registration requirements.1
We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
Appellant is a tier III convicted sex offender who must comply with lifetime
reporting requirements under the Sexual Offender Registration and
Notification Act (“SORNA”). Appellant completed registration at the police
barracks in Berks County on October 26, 2015, but failed to disclose that he
had a Facebook social media account, in direct violation of the registration
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1
18 Pa.C.S.A. § 4915.1(a)(3).
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*Retired Senior Judge assigned to the Superior Court.
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requirements. As a result, Appellant entered an open guilty plea on
December 8, 2016, to failure to comply with registration requirements. 2
With the benefit of a pre-sentence investigative (“PSI”) report, the court
sentenced Appellant to a term of four and a half (4½) to ten (10) years’
imprisonment. Appellant’s sentence was in the mitigated range.
Appellant filed a post-sentence motion nunc pro tunc on December 29,
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2
The U.S. Supreme Court recently declared that North Carolina’s statute,
banning sex offenders from accessing social networking websites, violated
the First Amendment of the federal constitution. See Packingham v.
North Carolina, 137 S. Ct. 1730 (decided June 19, 2017) (declaring
unconstitutional North Carolina statute that banned registered sex offenders
from “access[ing] a commercial social networking Web site where the sex
offender knows that the site permits children to become members or to
create or maintain personal Web pages on the commercial social networking
Web Site”). According to the Supreme Court, the statute at issue imposed
an unprecedented burden on free speech that was overly broad; no State
can enact such a complete bar to the exercise of First Amendment rights.
Id. The Court did say, however, that a State could enact more specific laws,
so long as the restrictions are limited in context and narrowly tailored. But,
a State cannot enact what constitutes a complete bar to the exercise of First
Amendment rights on “websites integral to the fabric of our modern society
and culture.” Id. at 1738.
The Pennsylvania statute relevant to the present case makes it a crime for
individuals subject to registration to fail to register as required, verify an
address, and provide accurate information when registering. See 18
Pa.C.S.A. § 4915.1. Accurate demographic information for a registered sex
offender contains, inter alia, a “[p]rimary or given name, including an alias
used by the individual, nickname, pseudonym, ethnic or tribal name,
regardless of the context used and any designations or monikers used for
self-identification in Internet communications or postings.” 42 Pa.C.S.A. §
9799.16(b). Pennsylvania law does not foreclose a sex offender’s access to
social media; the law provides for criminal punishment if, when registering,
the sex offender fails to provide accurate/complete information regarding
social networking accounts. See 42 Pa.C.S.A. § 4915.1. Thus, the
Packingham decision does not impact the instant case.
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2016. On January 2, 2017, the court considered the motion to reinstate
post-sentence rights nunc pro tunc and denied the motion on the merits.
Appellant timely filed a notice of appeal on January 11, 2017. That same
date, the court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). Appellant timely complied
on January 27, 2017. Appellate counsel filed on April 11, 2017, a petition to
withdraw representation with this Court.
As a preliminary matter, 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, 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). After establishing 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
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A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[3] 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, 359-60. Thus, the Court
held:
[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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition to withdraw. The petition
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3
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated April 11,
2017, attached to Petition to Withdraw as Counsel). In the Anders brief,
counsel provides a summary of the facts and procedural history of the case.
Counsel’s argument refers to relevant law that might arguably support
Appellant’s issue. Counsel further states the reasons for his conclusion that
the appeal is wholly frivolous. Therefore, counsel has substantially complied
with the requirements of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
WHETHER APPELLANT’S SENTENCE OF 54 MONTHS TO 10
YEARS IN A STATE CORRECTIONAL INSTITUTION WAS
MANIFESTLY EXCESSIVE, CLEARLY UNREASONABLE, AND
CONTRARY TO THE FUNDAMENTAL NORMS UNDERLYING
THE SENTENCING CODE, WHERE THE COURT IMPOSED A
SENTENCE THAT, ALTHOUGH IN THE MITIGATED RANGE
OF THE SENTENCING GUIDELINES, FAILED TO FULLY
ACCOUNT FOR APPELLANT’S REMORSE FOR THE CRIME
AND THE NATURE OF THE CRIMINAL CONDUCT?
(Anders Brief at 8).
Appellant argues the court did not consider the requisite statutory
factors under 42 Pa.C.S.A. § 9721(b) when it imposed sentence.
Specifically, Appellant avers the court did not fully consider Appellant’s
expressions of remorse and lack of wrongful intent in failing to disclose his
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Facebook social media account. Next, Appellant asserts the court did not
fully consider on the record the protection of the public or the gravity of the
offense as it relates to the impact on the community. Appellant claims the
court did not consider whether Appellant’s conduct harmed the community,
Appellant’s rehabilitative needs, or how incarceration would prevent
Appellant from committing future criminal acts. As a result, Appellant
submits the court imposed an unreasonable and manifestly excessive
sentence, which constitutes too severe a punishment. Appellant points out
that the court noted the confusion inherent in the registration questions
under SORNA. Appellant argues that the General Assembly did not intend to
punish individuals like him for wrongful conduct based on confusion and
misapprehension of the law. Appellant contends application of the
sentencing guidelines is clearly unreasonable pursuant to Section 9781(c)(2)
under these circumstances. For these reasons, Appellant concludes his
sentence violated the sentencing code’s norms of fundamental fairness and
we should vacate and remand for resentencing. As presented, Appellant
challenges the discretionary aspects of his sentence.4 See Commonwealth
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4
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
(Footnote Continued Next Page)
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v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is
manifestly excessive challenges discretionary aspects of sentencing);
Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal
denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing
court failed to consider or did not adequately consider certain factors
implicates discretionary aspects of sentencing); Commonwealth v.
Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en banc) (explaining claim
sentencing court failed to consider Section 9721(b) factors pertains to
discretionary sentencing matters).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspects of 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. 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
denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary
_______________________
(Footnote Continued)
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
guilty plea included no negotiated sentence.
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aspects of 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. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003). “This failure
cannot be cured by submitting the challenge in a Rule 1925(b) statement.”
Commonwealth v. McAfee, 849 A.2d 270, 275, (Pa.Super. 2004), appeal
denied, 580 Pa. 695, 860 A.2d 122 (2004).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,
112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),
cert. denied, 556 U.S. 1264, 129 S. Ct. 2450, 174 L. Ed. 2d 240 (2009).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the
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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.” Sierra, supra at 913. A claim that a sentence is
manifestly excessive might raise a substantial question if the appellant’s
Rule 2119(f) statement sufficiently articulates the manner in which the
sentence imposed violates a specific provision of the Sentencing Code or the
norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d
at 627. Nevertheless, as a general rule, “[a]n allegation that a sentencing
court ‘failed to consider’ or ‘did not adequately consider’ certain factors does
not raise a substantial question that the sentence was inappropriate.” Cruz-
Centeno, supra at 545 (quoting Commonwealth v. Urrutia, 653 A.2d
706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873
(1995)). Moreover, where the sentencing court had the benefit of a PSI
report, the law presumes the court was aware of and weighed relevant
information regarding a defendant’s character along with mitigating
statutory factors. Tirado, supra at 366 n.6.
Instantly, Appellant raised the following issues in his post-sentence
motion nunc pro tunc:
4. [Appellant] asks this court to modify his sentence in this
case as he believes that the sentence is overly harsh.
5. [Appellant] believes that the within requested relief
should be granted for the following reasons:
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a) [Appellant] believes his failure to register a
Facebook Social Media account to be a relatively
minor infraction;
b) [Appellant] is truly remorseful and repentant
for [his] acts of misbehavior;
c) [Appellant] does not expect to have any
further contact with the criminal justice system; and
d) [Appellant] wishes to consummate a
meaningful and accelerated reintegration into society
at large.
* * *
(Appellant’s Post-Sentence Motion Nunc Pro Tunc, filed December 29, 2016,
at 1-2). Significantly, Appellant failed to preserve in his post-sentence
motion nunc pro tunc his claims that the court failed to give adequate
consideration to the protection of the public, the gravity of Appellant’s
offense as it relates to the impact on the community, whether Appellant’s
conduct harmed the community, Appellant’s rehabilitative needs, and how
incarceration would prevent Appellant from committing future criminal
conduct. Thus, these claims are waived. See Mann, supra. Appellant’s
inclusion of these issues in his Rule 1925(b) statement does not cure this
defect. See McAfee, supra. Appellant also failed to preserve his claim that
application of the sentencing guidelines is clearly unreasonable pursuant to
Section 9781(c)(2). See Mann, supra.
Regarding Appellant’s claim that the court did not fully consider
Appellant’s expressions of remorse and lack of wrongful intent in failing to
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disclose his Facebook social media account, Appellant properly preserved his
discretionary aspects of sentencing claim in his post-sentence motion nunc
pro tunc, but not in his Rule 2119(f) statement. Additionally, Appellant’s
assertion that the court did not fully consider these mitigating factors does
not present a substantial question under the facts of this case. See Cruz-
Centeno, supra. Moreover, the court had the benefit of a PSI report. (See
N.T. Guilty Plea/Sentencing, 12/8/16, at 35). Therefore, we can presume
the court considered the relevant information and mitigating factors. See
Tirado, supra. Finally, the record belies Appellant’s contentions. In
analyzing Appellant’s challenge to its sentencing discretion, the court
reasoned:
[At the sentencing hearing,] the Commonwealth put on the
record the standard range sentence for the offense:
Your honor, [Appellant] has a prior record score of 5,
which is indicated in the [PSI] report. The offense
gravity score for this offense is a 10, which would
make the standard range 60 to 72 months plus or
minus 12 months. [(N.T. Guilty Plea/Sentencing,
12/8/16, at 32).]
Appellant’s attorney…argued the mitigating circumstances
of the offense. Primarily, that Appellant took responsibility
for his actions and the circumstances of his failure to
register was a failure to register a Facebook account.
Additionally, Appellant gave further statements admitting
his culpability.
In conjunction with statements, [the court] stated that:
I have reviewed the PSI and I’ve taken that into
account[.]
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* * *
I’ve also taken into account the proceeding[s] here
today and [Appellant’s] statements and what I
believe to be [Appellant’s] understandings of the
proceedings and I’ve taken into account the
provisions of the sentencing guidelines, the
information that’s been provided in conjunction with
the entry of this plea, which is the written and oral
colloquies, and [Appellant’s allocution. … Id. at 33-
34.]
The court, having considered these parameters, deemed it
appropriate to sentence Appellant to a period of
incarceration within the mitigated range.
(Trial Court Opinion, filed February 16, 2017, at 2-3) (some internal citations
omitted). The record shows the court adequately considered Appellant’s
display of remorse and the nature of Appellant’s criminal conduct when the
court imposed sentence. Following our independent review of the record, we
agree the appeal is wholly frivolous. See 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: 8/4/2017
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