Com. v. Williams, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TOMMY J. WILLIAMS :
:
Appellant : No. 1565 MDA 2021
Appeal from the Judgment of Sentence Entered November 4, 2021
In the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000646-2021
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: JUNE 13, 2022
Appellant, Tommy J. Williams, appeals from the judgment of sentence
entered on November 4, 2021,1 following his guilty plea to five counts of
burglary, 18 Pa.C.S.A. § 3502(a)(4). On direct appeal, Appellant’s counsel
has filed both a petition for leave to withdraw as counsel and an accompanying
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* Former Justice specially assigned to the Superior Court.
1 The original judgment of sentence was imposed on October 25, 2021.
However, the trial court amended Appellant’s judgment of sentence on
November 4, 2021. On appeal, counsel for Appellant erroneously states that
the appeal is from the October 25, 2021 judgment of sentence rather than
from the November 4, 2021 amended judgment of sentence. In cases where
the trial court amends the judgment of sentence during the period it maintains
jurisdiction pursuant to 42 Pa.C.S.A. § 5505, the direct appeal lies from the
amended judgment of sentence. See Commonwealth v. Garzone, 993 A.2d
1245, 1254 n.6 (Pa. Super. 2010); see also Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation
omitted) (correcting caption when appellant misstates where appeal lies),
appeal denied, 800 A.2d 932 (Pa. 2002).
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brief pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that
Appellant’s counsel has substantially complied with the procedural
requirements necessary to withdraw. Moreover, after independently
reviewing the record, we conclude that the instant appeal is wholly frivolous.
We, therefore, grant counsel’s petition for leave to withdraw and affirm
Appellant’s judgment of sentence.
The trial court briefly summarized the facts and procedural history of
this case as follows:
On September 2, 2021, Appellant pled guilty to five (5) counts of
Burglary, 18 Pa.C.S.A. § 3502(a)(4), felonies of the first degree.
Appellant was sentenced on October 25, 2021, to incarceration,
the minimum of which is 12 months and the maximum of which is
24 months for each count of Burglary to be served consecutively
to each other. The aggregate minimum is 60 months and the
aggregate [m]aximum is 120 months.
Trial Court Opinion, 1/14/22, at 1.
Before we address the merits of this appeal, we must consider the
adequacy of counsel’s compliance with Anders and Santiago.
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, counsel must do the following:
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 petition and
brief to the appellant, advising the appellant of the right to retain new
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counsel, proceed pro se or raise any additional points worthy of this
Court's attention.
Commonwealth v. Tukhi, 149 A.3d 881, 885-86 (Pa. Super. 2016) (citation
omitted).
In Santiago, our Supreme Court addressed the contents of an Anders
brief, and required that the brief:
(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.
Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, counsel substantially complied with all of the above obligations.
Furthermore, neither the Commonwealth nor Appellant has responded to the
petition to withdraw or Anders’ brief. We, therefore, must review the entire
record and analyze whether this appeal is, in fact, wholly frivolous. In his
Anders’ brief, counsel submits the following issue for our review:
Was the sentence imposed on [Appellant] excessive in light of
[Appellant]’s circumstances?
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Anders’ Brief at 9.
As presented, Appellant’s claims (excessiveness and failure to consider
mitigating circumstances) challenge the discretionary aspects of the sentence.
It is well-settled that “[t]he right to appeal a discretionary aspect of sentence
is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.
Super. 2011). Rather, where an appellant challenges the discretionary
aspects of a sentence, an appellant’s appeal should be considered as a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.
Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
[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).
Id. at 170 (citation omitted). Whether a particular issue constitutes a
substantial question about the appropriateness of sentence is a question to be
evaluated on a case-by-case basis. See Commonwealth v. Kenner, 784
A.2d 808, 811 (Pa. Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first requirement of the four-part
Moury test. Appellant filed a timely appeal to this Court. However, a review
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of the record reveals that Appellant failed to preserve the issue on appeal.
Appellant did not raise the issue at his sentencing hearing, nor did he file a
motion to modify the sentence imposed. Therefore, Appellant has waived this
issue for failing to preserve it. See, e.g., Tukhi, 149 A.3d at 888;
Commonwealth v. Evans, 901 A.2d 528, 534 (Pa. Super. 2006). “Having
[the issue] been waived, pursuing this matter on direct appeal is frivolous.”
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008).
Moreover, even if this issue had not been waived, we find its substance
to be frivolous.
We will assume for purposes of our discussion that Appellant did raise a
substantial question for our review. See Commonwealth v. Johnson-
Daniels, 167 A.3d 17, 25 (Pa. Super. 2017) (substantial question raised
where sentence alleged to be excessive in light of mitigating factors and
rehabilitative needs).2
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2 We also note that Appellant included some language in the Anders Brief that
could be read as a statement for purposes of Pa.R.A.P. 2119(f). While it is
not a separate statement as required under Pa.R.A.P. 2119(f), we decline to
find waiver on this basis.
Even if the statement had not been included in any form, this Court has
previously determined that “[w]here counsel files an Anders brief, this Court
has reviewed the matter even absent a separate Pa.R.A.P. 2119(f) statement”
and we “do not consider counsel's failure to submit a Rule 2119(f) statement
as precluding review of whether [issues are] frivolous.” Commonwealth v.
Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citation omitted). Moreover,
the Commonwealth did not object to the omission of the Rule 2119(f)
statement. See Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.
Super. 2009) (Even though defendant failed to include a Rule 2119(f)
(Footnote Continued Next Page)
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Here, Appellant does not claim that his aggregate sentence is excessive.
Nor does Appellant challenge the imposition of consecutive sentences.
Appellant merely claims that the sentence imposed on each count was
excessive, noting that the trial court, while imposing the standard range
sentences on all counts, could have imposed lighter sentences, closer to the
low end of the standard range.
Upon review of the record, we find Appellant’s discretionary sentence
challenge unavailing. “[S]entencing is vested in the discretion of the trial
court, and will not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly unreasonable,
or which resulted from partiality, prejudice, bias or ill will. It is more than just
an error in judgment.” Commonwealth v. Brown, 249 A.3d 1206, 1211 (Pa.
Super. 2021).
Where, as here, the sentencing court imposes a sentence within the
guideline range, our review is limited to whether the trial court’s sentence is
“clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). The reasonableness
inquiry is to be a “fluid” one, based in part on the factors set forth in § 9781(d)
of the Sentencing Code:
(d) Review of record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
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statement with respect to the discretionary aspects of a sentence in his brief,
defendant’s claims were not waived since the Commonwealth failed to object
to the statement’s absence).
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(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
“In addition, a sentence may be unreasonable if the sentencing court
fails to consider the factors set forth in § 9721(b).” Commonwealth v.
Dodge, 957 A.2d 1198, 1200 (Pa. Super. 2008) (citation omitted).
The trial court, which had the benefit of a presentence investigation and
the applicable sentencing guideline form, see N.T. Sentencing., 10/25/21, at
3, explained the reasons for the sentence imposed as follows:
Sentence falls within the standard range of the sentencing
guideline[s]. And this is appropriate given the totality of the crime
spree over a one (1) year period, there being numerous victims.
There were four (4) other co-defendants and there were large
amounts of items stolen[.] . . . So after considering all the factors
that go into sentencing and the facts and circumstances
surrounding [Appellant], [the trial court] finds that a sentence of
total confinement is appropriate.
Id. at 5-6.
We also note that there is no requirement that a sentencing court’s
imposition of sentence must be the minimum possible confinement. See
Commonwealth v. Walls, 926 A.2d 957, 965 (Pa. 2007). Furthermore,
where the sentencing court had the benefit of a presentence investigation
report, we can assume the sentencing court “was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Devers, 46 A.2d 12, 18 (Pa. 1988); Commonwealth v. Tirado, 870 A.2d
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362, 368 (Pa. Super. 2005) (stating if sentencing court has benefit of
presentence investigation report, law expects court was aware of relevant
information regarding defendant’s character and weighed those
considerations along with any mitigating factors). Finally, an appellate court
may not reweigh the evidence and substitute its judgment for that of the finder
of fact. See, e.g., Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa.
1998).
For all of the foregoing reasons, we conclude that the trial court did not
abuse its discretion in sentencing Appellant, and that the sentence imposed is
not clearly unreasonable. Accordingly, we conclude that Appellant failed to
invoke our jurisdiction, but even if he had done so, we would nonetheless have
concluded that his discretionary aspect of sentencing claim was frivolous.
Finally, after independent review of the certified record, we discern no
additional, non-frivolous issues overlooked by counsel. See Commonwealth
v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017) (“After determining that
counsel has satisfied the[ ] technical requirements of Anders and Santiago,
this Court must then conduct an independent review of the record to discern
if there are any additional, non-frivolous issues overlooked by counsel.”)
(citation and internal quotations omitted). Accordingly, we affirm Appellant's
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2022
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