Com. v. Wilbur, B.

J-S13023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN SCOTT WILBUR :
:
Appellant : No. 931 MDA 2021
Appeal from the Judgment of Sentence Entered June 15, 2021
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000655-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN SCOTT WILBUR :
:
Appellant : No. 935 MDA 2021
Appeal from the Judgment of Sentence Entered June 15, 2021
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000663-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN WILBUR :
:
Appellant : No. 936 MDA 2021
Appeal from the Judgment of Sentence Entered June 15, 2021
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000727-2020
J-S13023-22
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: JULY 19, 2022
Appellant, Brian Scott Wilbur, appeals from the judgment of sentence
entered in the Lackawanna County Court of Common Pleas, following his open
guilty plea to theft by unlawful taking, simple assault, and terroristic threats.1
We affirm and grant counsel’s petition to withdraw.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case as follows:
Under docket number 2020 CR 655, Appellant incurred one
(1) count of Theft by Unlawful taking in violation of 18
[Pa.C.S.A.] § 3921 & one (1) count of Unauthorized Use of
a Motor Vehicle in violation of 18 [Pa.C.S.A.] § 3928. These
charges stemmed from a February 13, 2020, report from
the general manager of Peckville Self Storage. Specifically,
Appellant rented a U-Haul van from the victim on January
16, 2020 and neglected to return the vehicle. The victim
stated that all attempts to reach Appellant were
unsuccessful.
Under docket number 2020 CR 663, Appellant [incurred]
one (1) count of Harassment—Strike, Shove, Kick, etc. in
violation of 18 [Pa.C.S.A.] § 2709 (A)(1), one (1) count of
Strangulation in violation of 18 [Pa.C.S.A.] § 2718(a)(1),
and one (1) count of Simple Assault in violation of 18
[Pa.C.S.A.] § 2701(A)(1). These charges arose from an
April 6, 2020, incident which led to Appellant’s arrest
wherein police were called to the Roadway Inn in Moosic,
Pennsylvania due to a domestic dispute. The victim, who
was covered in blood, indicated to officers that Appellant
punched her in the nose and wrapped his hands tight around
her neck. The daughter of Appellant and the victim was
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3921(a); 2701; and 2706(a)(3), respectively.
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present while the incident occurred and confirmed these
events.
Under docket number 2020 CR 727, Appellant was charged
with two (2) counts of Terroristic Threats—Cause Serious
Public Inconvenience in violation of 18 [Pa.C.S.A.] §
2706(a)(3) and two (2) counts of Threat to Use Weapons of
Mass Destruction in violation of 18 [Pa.C.S.A.] § 2715(a)(3).
These charges arose from an April 6, 2020, incident where
Appellant was being transported to the processing center for
the charges of docket number 2020 CR 663. Appellant
repeatedly told transporting officers that he was positive
with the COVID-19 virus and that he hopes he infects both
of their families.
On August 25, 2020, Appellant entered a guilty plea under
2020 CR 655 to one (1) count of Theft by Unlawful taking in
violation of 18 [Pa.C.S.A.] § 3921. Under 2020 CR 663,
Appellant entered a guilty plea to one (1) count of Simple
Assault in violation of 18 [Pa.C.S.A.] § 2701(A)(1). Under
2020 CR 727, Appellant entered a guilty plea to one (1)
count of Terroristic Threats—Cause Serious Public
Inconvenience in violation of 18 [Pa.C.S.A.] § 2706(a)(3).
Prior to entering the guilty plea, Appellant executed a
lengthy written plea colloquy in which he indicated
awareness of the maximum penalties of fifteen (15) years
confinement and 32,500 dollars fine. Appellant indicated he
understood the elements of the crimes charged, was
pleased with his attorney, and agreed to the terms of the
plea agreement. This [c]ourt also conducted an oral inquiry
to determine whether Appellant entered a knowing,
voluntary, and intelligent plea. Appellant advised
awareness of the constitutional rights he forfeited, and the
penalties he faced by entering the guilty plea. Appellant
further indicated that no threats or promises were made in
exchange for his plea. In reference to docket 2020 CR 655,
Appellant admitted to taking possession of a Ford U-Haul
van with the intent to deprive the owner thereof. With
regards to docket 2020 CR 727, Appellant acknowledged
threatening a Moosic Police Officer that he was infected with
the COVID-19 virus and hoped to infect his family. In
reference to docket 2020 CR 663, Appellant admitted to
punching the victim in the nose and applying pressure
around her neck which caused her to blackout. After
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receiving affirmative responses, this court accepted the
guilty plea, and deferred sentence pending completion of a
Presentence Investigation Report. (hereinafter “PSI”).
Appellant was originally sentenced December 1, 2020, on all
three dockets to six to twelve months state incarceration
followed by two years special probation on the Theft by
Unlawful taking charge, six to twelve months state
incarceration followed by one-year special probation on the
simple assault charge, and six to twelve months state
incarceration followed by two years special probation on the
Terroristic Threats charge. On December 7, 2020, Appellant
filed a Motion for Reconsideration. Specifically, Appellant
expressed the desire to go to a long-term treatment facility.
On December 10, 2020, this [c]ourt vacated its sentence,
and graciously allowed Appellant to attend inpatient
treatment at Salvation Army in Binghamton, New York.[2]
Appellant did not successfully complete treatment at
Salvation Army and violated a Protection from Abuse Order
by calling the victim on the telephone. [Consequently, the
court revoked bail and scheduled a sentencing hearing].
Accordingly, on June 15, 2021, upon review of the updated
PSI, the sentencing guidelines, consideration of arguments
made by defense counsel as well as the facts and the
circumstances of the case, this [c]ourt re-sentenced
Appellant in the standard range on all dockets. Regarding
docket number 2020 CR 655 Theft by Unlawful taking, this
[c]ourt sentenced Appellant to twelve (12) to twenty-four
(24) months state incarceration plus two years Special
Probation. On docket number 2020 CR 663, Simple Assault,
this [c]ourt sentenced Appellant to six (6) to twelve (12)
months state incarceration. Concerning docket 2020 CR
727—Terroristic Threats, this [c]ourt imposed a sentence of
six (6) [to] twelve (12) months followed by two years
special probation.
____________________________________________
2 The order specifically stated that the court was granting Appellant’s petition
for reconsideration of sentence, vacating the sentence imposed, and
modifying Appellant’s bail to ROR, with Appellant to be released to the
Salvation Army in Binghamton. Upon completion of rehabilitation, the court
would schedule sentencing with an updated pre-sentence investigation report.
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Therefore, with all dockets being consecutive, Appellant’s
aggregate sentence is twenty-four (24) to forty-eight (48)
months of state incarceration, followed by five (5) years of
Special Probation. On June 17, 2021, Appellant filed a
Motion for Reconsideration, which this [c]ourt denied on
June 22, 2021. Accordingly, on July 14, 2021, Appellant
filed a timely Notice of Appeal to the Pennsylvania Superior
Court.
(Trial Court Opinion, filed December 30, 2021, at 1-4) (internal citations to
record and footnote omitted).3 On September 7, 2021, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on September 20,
2021.
Preliminarily, appellate 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,
____________________________________________
3 Appellant filed separate notices of appeal at each underlying docket, which
this Court consolidated sua sponte.
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978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw:
Neither Anders nor McClendon4 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, 360. 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. After confirming that counsel has met the
antecedent requirements to withdraw, this Court makes an independent
____________________________________________
4 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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review of the record to confirm that the appeal is wholly frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also
Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).
Instantly, appellate counsel has filed a petition to withdraw. The petition
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
proceed pro se to raise any additional issues Appellant deems worthy of this
Court’s attention. In the Anders brief, counsel provides a summary of the
facts and procedural history of the case and refers to relevant law surrounding
Appellant’s issues. Counsel further states the reasons for her conclusion that
the appeal is wholly frivolous. Therefore, counsel has substantially complied
with the technical requirements of Anders and Santiago.
Counsel raises the following issues on Appellant’s behalf:
Whether the sentences for theft by unlawful taking imposed
in 20[20] CR 655 (931 MDA 2021), for simple assault
imposed in 20[20] CR 663 (935 MDA 2021), and for
terroristic threats imposed in 20[20] CR 727 (936 MDA
2021) were harsh and excessive and an abuse of discretion.
(Anders Brief at 4).5
Appellant argues that the sentences imposed were unduly harsh and
excessive. Appellant asserts the court failed to properly consider the nature
____________________________________________
5 Appellant has not filed a response to the Anders brief pro se or with newly-
retained counsel.
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and circumstances of his crimes, or his mental health and severe addiction
issues. Appellant emphasizes that the crimes at issue occurred while
Appellant was under the influence of drugs. Appellant maintains that he would
benefit from attending a Domestic Violence program, and drug and mental
health counseling. Appellant insists that he will not be able to participate in
these programs based on the lengthy sentence imposed. Appellant complains
the court abused its discretion by sentencing Appellant on the high-end of the
standard range for each crime. Appellant submits the court did not consider
the relevant sentencing factors under Section 9721(b). Appellant concludes
the court abused its sentencing discretion, and this Court must vacate and
remand for resentencing. We disagree.
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979(2001). Prior to reaching the merits of a discretionary sentencing issue:
We 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) (internal citations omitted).
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Significantly, objections to the discretionary aspects of a sentence are
waived if they are not raised at the sentencing hearing or in a timely filed
post-sentence motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.
2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). “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).
Instantly, Appellant filed a timely post-sentence motion on June 17,
2021. Nevertheless, Appellant did not preserve any of the claims he raises on
appeal in that motion. Instead, Appellant merely requested the court to
reconsider and modify his sentence back to the sentence originally imposed
on December 1, 2020; or, to permit Appellant to finish the remainder of his
sentence in Lackawanna County prison. Appellant mentioned nothing about
the court’s alleged failure to consider mitigating factors, excessiveness of the
sentence, or any of the other arguments Appellant now advances on appeal.
Appellant’s failure to preserve his current claims in the post-sentence motion
constitutes waiver of his sentencing issue on appeal. See Griffin, supra;McAfee, supra.
Even if Appellant had preserved his claims on appeal, this Court will not
disturb the judgment of the sentencing court absent an abuse of discretion.
Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006).
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
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discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to determine
the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. Simply
stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are
difficult to gauge from the cold transcript used upon
appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that
should not be lightly disturbed. Even with the advent of the
sentencing guidelines, the power of sentencing is a function
to be performed by the sentencing court. Thus, rather than
cabin the exercise of a sentencing court’s discretion, the
guidelines merely inform the sentencing decision.
Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62
(2007) (internal quotation marks, footnotes, and citations omitted).
Pursuant to Section 9721(b), “the court shall 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.” 42 Pa.C.S.A. § 9721(b). See also Commonwealth
v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where court had benefit
of pre-sentence investigation report, we can presume it was aware of relevant
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information regarding defendant’s character and weighed those
considerations along with mitigating statutory factors).
Here, the trial court analyzed Appellant’s sentencing claim as follows:
Here, this [c]ourt imposed guideline range sentences on all
dockets, which is considered appropriate under the
Sentencing Code. Prior to sentencing, this [c]ourt precisely
reviewed the pre-sentence investigation report outlining
Appellant’s relevant personal background, as well as the
circumstances of the Appellant’s criminal history, drug
addiction, and mental health struggles. Pointedly, Appellant
possessed a prior record score of 1. However, Appellant’s
criminal history presents a multitude of PFA Contempt
Violations, assaults, harassments, and five (5) disorderly
conduct convictions, most not considered in the prior record
score. Appellant was denied from mental health court in
Lackawanna County due to his past assaultive behavior and
criminal history. Appellant demonstrated a continuing
incapability to appreciate the wrongfulness of his conduct,
which is clear by his failure to ever participate in, drug
rehabilitation such as attending meetings or working a
twelve-step recovery program. Appellant was given a gift
by this [c]ourt in allowing him to attend inpatient treatment
at Salvation Army, which he failed to complete. Appellant
also showed he has failed to take his mental health
counseling seriously, as he was not compliant with attending
therapy or maintaining appropriate medication use before
these charges.
It is readily apparent on the face of the record that this
[c]ourt was fully acquainted of the relevant mitigating and
aggravating factors via full argument by Appellant’s
attorney and an inclusive pre-sentence investigative report.
The weight to be given to those factors was within the field
of this [c]ourt to regulate. Therefore, aware of the
sentencing guidelines, and all other factors, this [c]ourt
imposed sentences within the standard range that are
neither unduly harsh nor excessive. There is no indication
in the record that this [c]ourt failed to consider the
individual circumstances or in any other way imposed a
harsh and excessive sentence, disproportionate to
Appellant’s actions. Appellant’s claims are without merit.
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(Trial Court Opinion at 8-9) (internal citation omitted). We see no abuse of
the court’s broad sentencing discretion. See Walls, supra; Fullin, supra.Therefore, even if Appellant had properly preserved his claim and raised a
substantial question, it would merit no relief. Following our independent
review of the record, we agree the appeal is frivolous. See Dempster, supra;
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: 07/19/2022
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