Com. v. Valle, D.

J-S29024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTEZ VALLE :
:
Appellant : No. 3210 EDA 2018
Appeal from the Judgment of Sentence Entered October 23, 2018,
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001174-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 04, 2019
Dontez Valle appeals from the judgment of sentence1 entered in the
Court of Common Pleas of Bucks County. Counsel has also filed a brief and
petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
After careful review, we affirm and grant counsel’s petition to withdraw.
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1 Although Valle filed his notice of appeal from the September 24, 2018 order
denying post-sentence motions, the appeal is technically taken from the
judgment of sentence. See Commonwealth v. Chamberlain, 658 A.2d 395(Pa. Super. 1995) (order denying post-sentence motion acts to finalize
judgment of sentence; thus, appeal is taken from judgment of sentence, not
order denying post-sentence motion). Therefore, we have amended the
caption to reflect that the appeal is from Valle’s October 23, 2018 judgment
of sentence.
J-S29024-19
On April 21, 2018, Valle entered an open guilty plea to one count each
of simple assault2 (M2) and strangulation3 (F2). The charges stemmed from
Valle’s violent attack on his 13-year-old daughter during a public, verbal
altercation. At the time he committed the instant offenses, Valle was on state
parole for an unrelated charge. Valle was sentenced on September 19, 2018,
to 3½ to 10 years’ imprisonment, with credit for time served. On September
19, 2018, Valle filed a motion to reconsider his sentence; the trial court denied
the motion on September 24, 2018. Valle filed a timely notice of appeal and
court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Valle presents the following issue for our review: “Whether the trial
court abused its discretion by imposing an excessive sentence that exceeded
what is necessary to protect the public and to rehabilitate [Valle.]” Appellant’s
Brief, at 5.
Prior to reviewing Valle’s claim, we must determine if counsel has
complied with the procedural requirements for withdrawal. In order to
withdraw pursuant to Anders, counsel must: (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 an appeal; and (3)
furnish a copy of the brief to the appellant and advise him of his right to obtain
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2 18 Pa.C.S. § 2701.
3 18 Pa.C.S. § 2718.
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new counsel or file a pro se brief raising any additional points that the
appellant deems worthy of review. Commonwealth v. Hernandez, 783
A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), the Pennsylvania Supreme Court held that, in order to
withdraw under Anders, counsel must also state his reasons for concluding
his client’s appeal is frivolous.
Instantly, counsel’s petition states that she has made an exhaustive
examination of the record and concluded the appeal is wholly frivolous.
Counsel indicates that she supplied Valle with a copy of the Anders brief and
a letter explaining his right to proceed pro se, or with privately-retained
counsel, and to raise any other issues he believes might have merit.4
Counsel’s brief sets out a single issue of arguable merit and, pursuant to the
dictates of Santiago, explains why she believes the appeal to be frivolous.
Thus, counsel has substantially complied with the requirements for
withdrawal. Accordingly, we will proceed with our independent review of the
proceedings and render an independent judgment as to whether the appeal
is, in fact, wholly frivolous. Commonwealth v. Wright, 846 A.2d 730, 736
(Pa. Super. 2004).
In her Anders brief, counsel raises a discretionary aspect of sentence
claim. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015).
____________________________________________
4Valle did not file a substantive response to counsel’s Anders brief, raising
any issues he believed to be meritorious.
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Challenges to the discretionary aspects of one’s sentence are not appealable
as of right, and in order for this Court to reach the merits of such claims, Valle
first must satisfy a four-part test to determine:
(1) whether the appeal is timely; (2) whether [he]
preserved his issue; (3) whether [his] brief includes a
concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the [S]entencing [C]ode.
Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018) (citations
omitted).
Valle has complied with the first three prongs of the above-stated test:
he has filed a timely appeal; he has preserved his discretionary claim in a
post-sentence motion; and he has included a Pa.R.A.P. 2119(f) concise
statement in his brief. With regard to the fourth prong, we note that:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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. (citations omitted). We also find that Valle has raised a substantial
question to invoke our appellate review. See Commonwealth v. Hill, 2013
PA Super 78 (Pa. Super. 2013).
Valle claims that the court’s sentence is excessive where he “took
responsibility for his actions by pleading guilty,” Appellant’s Brief, at 14, and
where he only committed the acts because he lacked proper parenting skills.
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“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.
2006). Moreover, the sentencing court has broad discretion in choosing the
range of permissible confinement that best suits a particular defendant and
the circumstances surrounding his crime. Commonwealth v. Wall, 846 A.2d
152, 154-55 (Pa. Super. 2004). The Sentencing Code sets forth the
considerations a trial court must take into account when formulating a
sentence, providing 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).
Instantly, the sentencing judge acknowledged that he considered the
fact that Valle was trying to make his life better, that he had accepted
responsibility for his criminal actions, and that he had “done well in jail.” N.T.
9/19/17, at 27-29. The judge believed that Valle was sincere and candid and
also noted that he considered the impact Valle’s actions had upon the victim,
his daughter. Id. at 27, 31. The court recognized that Valle “has some anger
issues” and determined that “the most important factor that [the court
needed] to consider [was Valle’s] need for rehabilitation.” Id. To that end,
the court struck a balance between imposing significant time in jail (a below-
the-mitigated-range sentence) and placing Valle in the proper confinement
setting (state prison) so that he could take advantage of the necessary
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rehabilitative programs. 42 Pa.C.S.A. § 9721(b). Under these circumstances,
we do not find that the trial court abused its discretion in sentencing Valle to
3½ to 10 years’ imprisonment. Fullin, supra.Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/19
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