Com. v. Hartman, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ASHLYNN TAYLOR HARTMAN
Appellant No. 2027 MDA 2015
Appeal from the Judgment of Sentence September 16, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000006-2015
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 15, 2016
Ashlynn Taylor Hartman appeals from the judgment of sentence
imposed September 16, 2015, in the Franklin County Court of Common
Pleas. The trial court imposed an aggregate sentence of eight to 36 months’
imprisonment, following Hartman’s guilty plea to charges of possession of a
controlled substance and theft.1 Contemporaneous with this appeal,
Hartman’s counsel has filed a petition to withdraw from representation and
an Anders brief.2 See Anders v. California, 386 U.S. 738 (1967);
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §780-113(a)(16) and 18 Pa.C.S. § 3921(a), respectively.
2
When this appeal originally appeared before this panel, the transcript from
Hartman’s guilty plea hearing was not included in the certified record.
Consequently, we denied counsel’s petition to withdraw, and remanded with
instructions for counsel to obtain the requisite notes of testimony, so that
(Footnote Continued Next Page)
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Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). The sole issue
addressed in the Anders brief is a challenge to the discretionary aspects of
Hartman’s sentence. For the reasons that follow, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
The facts underlying Hartman’s guilty plea are as follows. On
November 7, 2014, Hartman stole three hydrocodone pills from the
complainant, Ralph Kline. When confronted by the police, Hartman admitted
to the theft, and, on August 5, 2015, entered a guilty plea to the above-
stated charges. On September 16, 2015, the trial court imposed a sentence
of six to 24 months’ imprisonment for the possession charge, and a
consecutive term of two to 12 months’ imprisonment for the theft charge.3
Hartman filed a timely post-sentence motion seeking modification of her
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(Footnote Continued)
she could review the entire record for any non-frivolous issues, and within
30 days of receipt of the transcript, to file either an advocate’s brief or
another Anders brief and petition to withdraw. See Commonwealth v.
Hartman, 2027 MDA 2015 (Pa. Super. filed 6/9/2016). Counsel promptly
complied with our directive.
3
The same day, Hartman was sentenced in three separate cases for
violations of probation. See Docket Nos. 1353-2012, 364-2013, and 1212-
2014. On those charges, the court imposed an aggregate term of 30 to 72
months’ imprisonment, and ordered that sentence to run consecutively to
the sentence imposed herein. The appeals from those sentences were
consolidated, and are pending before this Court. See Superior Court Docket
Nos. 1800 MDA 2015, 1801 MDA 2015, and 1802 MDA 2015.
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sentence. The trial court denied the motion on October 23, 2015, and this
timely appeal followed.4
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any
of the substantive issues raised on appeal. Commonwealth v. Bennett,
124 A.3d 327, 330 (Pa. Super. 2015). Our review of the record reveals
counsel has complied with the requirements for withdrawal outlined in
Anders, supra, and its progeny. Notably, counsel completed the following:
(1) she filed a petition for leave to withdraw, in which she states her belief
that the appeal is wholly frivolous; (2) she filed an Anders brief pursuant to
the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009); (3) she furnished a copy of the Anders brief to Hartman; and (4)
she advised Hartman of her right to retain new counsel or proceed pro se.
See Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013)
(en banc). Moreover, we have received no correspondence from Hartman
supplementing the Anders brief. Accordingly, we will proceed to examine
the record and make an independent determination of whether the appeal is
wholly frivolous.
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4
On November 20, 2015, the trial court ordered Hartman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hartman complied with the court’s directive, and filed a concise statement
on December 11, 2015.
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The sole issue identified in counsel’s Anders brief challenges the
discretionary aspects of her sentence. A challenge to the discretionary
aspects of a sentence is not absolute, but rather, “must be considered a
petition for permission to appeal.” Commonwealth v. Best, 120 A.3d 329,
348 (Pa. Super. 2015) (quotation omitted). To reach the merits of a
discretionary issue, this Court must determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved [the] issue; (3) whether Appellant’s 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 sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Counsel complied with the procedural requirements for this appeal by
filing both a post-sentence motion for reconsideration of sentence and a
timely notice of appeal. Counsel also included in the Anders brief a
statement of reasons relied upon for appeal pursuant to Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we
must consider whether Hartman raised a substantial question justifying our
review.
A substantial question exists when an appellant sets forth “a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
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1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted).
Here, Hartman contends the sentence was “manifestly unreasonable
because the court failed to consider a number of factors and gave too great
weight to negative factors[.]”5 Anders Brief at 12. Specifically, she
asserts: (1) the complainant did not suffer “any serious health
consequences” as a result of her theft of his pills; (2) she was “extremely
cooperative with the police;” (3) she gave birth only a few weeks prior to
sentencing and was “hoping to be able to bond with her child;” and (4) she
made positive changes in her life, including a successful stint on electronic
monitoring and completion of a county day reporting program. Id. at 12-13.
She states that “a reasonable sentence would have consisted of concurrent
sentences rather than running each case consecutive to one another.” Id.
at 12.
Further, Hartman disputes the trial court’s reliance on two negative
factors, namely, that she did not sign up for programming while in county
jail, and that she brought Xanax into a treatment facility and distributed it to
other patients. See id. at 13. Hartman explains she had no time to register
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5
It is well-established that when a defendant enters a guilty plea, she may
seek a discretionary appeal of those sentencing terms that were not
negotiated. Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super.
2009), appeal denied, 990 A.2d 726 (Pa. 2010). Here, Hartman entered an
open guilty plea.
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for classes in county jail because she had given birth only a few weeks prior
to her sentencing, and suspected she would be sentenced to state time.
See id. Moreover, she asserts she had a prescription for the Xanax, and
was instructed by her doctor to stay on the medication during her
pregnancy. See id. Therefore, she claims the trial court improperly relied
on these purportedly negative factors.
“[A]n allegation that the sentencing court failed to consider mitigating
factors generally does not raise a substantial question for our review.”
Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa. Super. 2010),
appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132 S.Ct. 1746 (U.S.
2012). However, this Court has held that an “excessive sentence claim[ ] in
conjunction with an assertion that the court did not consider mitigating
factors[,]” does present a substantial question for our review.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),
appeal denied, 125 A.3d 1198 (Pa. 2015), quoting Commonwealth v.
Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (en banc), appeal denied, 91
A.3d 161 (Pa. 2014). Moreover, while a challenge to the imposition of
consecutive versus concurrent sentences generally does not raise a
substantial question, such a claim may be addressed when the defendant
alleges the “aggregate sentence is unduly harsh, considering the nature of
the crimes and the length of imprisonment.” Commonwealth v. Moury,
992 A.2d 162, 171-172 (Pa. Super. 2010). Therefore, because we conclude
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Hartman has nominally raised a substantial question, we proceed to an
examination of her argument on appeal.
Our standard of review of claims challenging the discretionary aspects
of sentencing is well-established:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),
appeal denied, 125 A.3d 1198 (Pa. 2015).
Pursuant to the Sentencing Code, a trial 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. § 9721(b). The Code also
mandates an appellate court must vacate a sentence if it finds that the
sentence, while within the applicable guidelines, “involve[d] circumstances
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where the application of the guidelines would be clearly unreasonable[.]”6
42 Pa.C.S. § 9781(c)(2).
During the sentencing hearing, the trial court noted Hartman had been
“afforded a number of treatment times and opportunities,” including an
unsuccessful discharge from inpatient treatment in 2013, discipline at a
halfway house that same year for drinking and using heroin, further drug-
related arrests, and a discharge from an inpatient treatment in 2015 for
dealing drugs to other patients. N.T., 9/16/2015, at 5-6. The court further
observed:
I cannot fathom the depth of your lack of judgment. You
are a child. You have neither the skills nor the ability to conform
your conduct to the law, and you apparently, for the last two
years, have not taken the trouble you are in seriously, despite
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6
Counsel acknowledges, in the Anders brief, that Hartman’s sentences
were imposed within the standard range of the sentencing guidelines. See
Anders Brief at 14.
We note both the written and oral plea colloquies state the maximum
sentence Hartman could receive on the charge of possession was one year
imprisonment, so that her total maximum exposure for both charges was a
term of two years’ imprisonment. See Plea Agreement, 8/5/2015; N.T.,
8/5/2015, at 3. As noted above, however, Hartman was sentenced to a
term of six to 24 months’ imprisonment on the possession charge alone, and
an aggregate sentence of eight to 36 months. The Commonwealth
explained in its sentencing memorandum that Hartman faced a maximum
penalty of three years’ imprisonment for the possession charge because this
conviction was her second offense for such a crime. See Commonwealth’s
Sentencing Memorandum, 9/9/2015, at 1 n.1, citing 35 P.S. § 780-113(b).
Hartman did not object at the sentencing hearing, and has never claimed her
guilty plea was entered either unknowingly or involuntarily. Accordingly, we
need not address this apparent discrepancy on appeal.
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the not less than seven times the Adult Probation Department
has given you an opportunity to prove that you can stay in this
community.
Id. at 6-7. The court found “most reprehensible” Hartman’s conduct at
Clearbrook Lodge, an inpatient substance abuse facility. Id. at 7. During
her stay, Hartman passed out her prescribed medication to other patients.
See Commonwealth’s Answer to Defendant’s Motion Requesting Furlough,
8/11/2015, Exhibit B, Letter from Clinical Direction of Clearbrook Lodge to
Hartman’s Probation Officer, dated 7/7/2015. The court noted the patients
were in treatment to address a problem, and “lo and behold the problem
was living among them at the time.” N.T., 9/16/2015, at 7.
We find no reason to disturb the sentence imposed by the trial court.
Here, the court had the benefit of a pre-sentence investigation report, as
well as a probation violation packet prepared for the violation sentences
imposed that same day. See supra, n.3. It is well-settled that where a
trial court had the benefit of a pre-sentence investigation report, we will
presume the trial court was “aware of all appropriate sentencing factors and
considerations.” Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.
Super. 2010) (citation omitted). The trial court properly considered
Hartman’s numerous, prior failed attempts at treatment when imposing the
sentence herein. Further, our review of the sentencing transcript reveals the
court was more troubled by Hartman’s repeated violations than her failure to
register for any programs in county jail. With respect to Hartman’s
contention that she had a prescription for the drugs she brought into
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Clearbrook, we note the court’s concern was with the fact that she provided
those pills to other patients, not that she took them herself.
Because we agree with counsel’s assessment that this appeal is wholly
frivolous, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2016
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