Com. v. Sharpe, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHARLES MICHAEL SHARPE,
Appellant No. 2956 EDA 2013
Appeal from the Judgment of Sentence September 4, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000708-2009
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 09, 2015
Charles Michael Sharpe appeals from the judgment of sentence of two
to four years incarceration imposed by the trial court after he stipulated to
violating the terms of his probation. Counsel has filed a petition to withdraw
from representation and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We grant counsel’s petition to withdraw and affirm.
Appellant originally pled guilty in 2009 to dissemination of child
pornography, possession of child pornography, and criminal use of a
communication facility. The court sentenced him to concurrent periods of
incarceration of ninety-eight days to twenty-three months for the two child
pornography charges and a consecutive period of probation of five years for
*
Former Justice specially assigned to the Superior Court.
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the criminal use of a communication facility. Subsequently, Appellant
violated the terms of his probation by being unsuccessfully discharged from
outpatient sexual offender treatment, having contact with minor children,
and viewing pornography. Appellant admitted to masturbating and
fantasizing about young children while doing so. In addition, Appellant was
not permitted to have pets because he had previously admitted to
contemplating having sexual intercourse with a dog. Appellant, however,
was residing with a dog in his home.
On June 9, 2010, the court conducted a violation of probation hearing
and found Appellant in violation of his parole and probation. At the criminal
communication facility charge, the court resentenced Appellant to a period of
incarceration of one and one-half to three years incarceration to be followed
by four years probation. The defendant served his complete three-year
prison sentence.
Thereafter, Appellant again violated his probation. Specifically, he
admitted to drinking alcohol in violation of his probation, having contact with
three minor children over a three-day period, watching pornography and
masturbating while living with the children, and residing in a residence not
approved by his probation officer. Appellant waived his Gagnon I hearing,
and the court held a violation of probation hearing on September 4, 2013.
Appellant stipulated to violating the terms of his probation. He requested a
county sentence. However, the court imposed the aforementioned two to
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four year period of incarceration. In doing so, the court considered that a
2010 evaluation of Appellant indicated that he was a high-risk offender who
should receive treatment in state prison system. Appellant filed a timely
post-sentence motion on September 9, 2013, seeking reconsideration of his
sentence based on his assertion that he had been sexually abused as a child.
The court scheduled a hearing on that motion outside of the thirty-day
period in which Appellant had to file an appeal. See Pa.R.Crim.P. 708(E);
Commonwealth v. Coleman, 721 A.2d 798 (Pa.Super. 1998). Accordingly
Appellant timely appealed before the hearing, no hearing was conducted,
and the court denied the motion due to a lack of jurisdiction. The trial court
directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Appellant’s counsel filed a statement of his
intent to file an Anders brief. The matter is now ready for our review.
Appellant’s counsel has filed a petition to withdraw and an
accompanying Anders brief, contending that there are no non-frivolous
issues to be reviewed. In the Anders brief, counsel sets forth as the issue
arguably supporting an appeal as “Whether Appellant’s sentence was an
abuse of discretion in light of the facts of the present case.” Anders brief at
3.
As we do not address the merits of issues raised on appeal without
first reviewing a request to withdraw, we review counsel’s petition to
withdraw at the outset. Commonwealth v. Cartrette, 83 A.3d 1030-3-
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(Pa.Super. 2013) (en banc). The procedural requirements for withdrawal
require counsel to: 1) petition for leave to withdraw and state that, after
making a conscientious examination of the record, counsel has concluded
that the appeal is frivolous; 2) provide a copy of the Anders brief to the
defendant; and 3) inform the defendant that he has the right to retain
private counsel or raise, pro se, additional arguments that the defendant
deems worthy of the court’s attention. Id.Counsel’s petition to withdraw provides that he made a conscientious
review of the record and concluded that there are no non-frivolous issues.
Counsel notified Appellant that he was withdrawing and furnished Appellant
with copies of both the petition to withdraw and Anders brief. Additionally,
counsel informed Appellant of his right to retain new counsel or proceed pro
se to raise any issues he believes this Court should consider. Thus, counsel
has satisfied the procedural requirements of Anders.
Counsel having complied with the procedural dictates of Anders, we
next consider whether counsel’s Anders brief meets the substantive
requirements of Santiago. Under Santiago, an Anders brief 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.
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Santiago, supra at 361.
Counsel provided a short background of this case. He also briefly
discussed his reasons for determining that Appellant’s appeal is frivolous,
and provides statutory authority as to why he has concluded that the appeal
is wholly frivolous. Hence, counsel has minimally complied with the
requirements of Anders/Santiago. Accordingly, we proceed to the merits
of the issue raised and our own independent review of the entire record.
Appellant’s claim relates to the discretionary aspects of his sentence.
To adequately preserve a discretionary sentencing claim, the defendant
must present the issue in either a post-sentence motion or raise the claim
during the sentencing proceedings. Commonwealth v. Cartrette, 83 A.3d
1030, 1042 (Pa.Super. 2013) (en banc). In the non-Anders context, the
defendant must “preserve the issue in a court-ordered Pa.R.A.P. 1925(b)
concise statement and a Pa.R.A.P. 2119(f) statement.” Id.Instantly, the issue need not be preserved in a Rule 1925(b)
statement to permit review of whether the issue is frivolous where the party
indicates that he intends to file an Anders brief. Pa.R.A.P. 1925(c)(4).
However, were we to find that the issue is not frivolous, a remand for the
filing of a Rule 1925(b) statement would be in order. Id. Additionally,
where counsel files an Anders brief, this Court has reviewed the matter
even absent a separate Pa.R.A.P. 2119(f) statement. See Commonwealth
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v. Wilson, 578 A.2d 523 (Pa.Super. 1990); see also Commonwealth v.
Lilley, 978 A.2d 995 (Pa.Super. 2009).
We add that, “[t]here is no absolute right to appeal when challenging
the discretionary aspect of a sentence.” Id. “[A]n appeal is permitted only
after this Court determines that there is a substantial question that the
sentence was not appropriate under the sentencing code.” Id. When
considering the merits of a discretionary aspects of sentencing claim, we
analyze the sentencing court’s decision under an abuse of discretion
standard. Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.
2013). Our scope of review from a probation revocation sentence does
include considering discretionary sentencing claims. Cartrette, supra.Appellant in his post-sentence motion alleged that he should be re-
sentenced based on the fact that he was previously sexually abused. He did
not aver that his sentence was excessive. Appellant has not included a
separate Pa.R.A.P. 2119(f) statement in his Anders brief. Nonetheless, in
essence, Appellant complained that the trial court did not adequately
consider a mitigating factor. In Dodge, supra, we collected cases that
found that not adequately considering mitigating facts or facts of record did
not present a substantial question while noting the seeming incongruity of
that jurisprudence with other case law. Dodge, supra at 1272 n.8.
Appellant’s post-sentence motion claim does not raise a substantial
question. Id. Even assuming arguendo that Appellant’s post-sentence
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motion claim raises a substantial question for review, the claim is frivolous.
Pursuant to 42 Pa.C.S. § 9721(b), a revocation court “must ‘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.’” Cartrette, supra at 1040-
1041 (citing 42 Pa.C.S. § 9721(b)). “In addition, in all cases where the
court ‘resentences an offender following revocation of probation. . . .the
court shall make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the sentence
imposed.’” Id. Further, under 42 Pa.C.S. § 9771(c),
The court shall not impose a sentence of total confinement upon
revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he
will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the
court.
See also Cartrette, supra at 1041.
Here, the sentencing court stated that it expressly took into account a
2010 report indicating Appellant’s need for sex offender treatment and his
high risk of re-offending. It explained that it believed Appellant needed
additional treatment and that state incarceration would better provide for his
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needs. The Commonwealth also argued that Appellant was in need of
intensive sex offender treatment and was likely to commit other crimes if not
incarcerated.
Here, the nature of Appellant’s probation violations strongly suggests
that he was highly likely to commit sex crimes against minors if not
incarcerated and a state sentence was warranted to protect the public and
serve his rehabilitative needs. The sentencing court did not abuse its
discretion in imposing its sentence.
After our own independent review of the record and governing law, we
find that there are no preserved non-frivolous issues that exist or
meritorious issues that cannot be waived. Lilley, supra at 998 (“Once
counsel has satisfied the above requirements, it is then this Court's duty to
conduct its own review of the trial court's proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly
frivolous.”).
Appellant’s sentence of two to four years, combined with his prior one
and one-half to three year period of incarceration, does not exceed the
statutory maximum of seven years that is applicable to his third-degree
felony criminal use of communications facility charge. See Commonwealth
v. Crump, 995 A.2d 1280 (Pa.Super. 2010) (discussing legality of split-
sentences). Furthermore, the trial court had subject matter jurisdiction over
Appellant’s probation revocation since courts of common pleas have general
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subject matter jurisdiction. Cf. Commonwealth v. Bethea, 828 A.2d 1066(Pa. 2003).
Judgment of sentence affirmed. The petition to withdraw by Richard J.
Blasetti, Esq. is granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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