Commonwealth v. Zeigler

J-S12008-15
2015 Pa. Super. 57
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD ZEIGLER,
Appellant No. 2248 EDA 2013
Appeal from the Judgment of Sentence May 2, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001450-2012
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
OPINION BY BOWES, J.: FILED MARCH 20, 2015
Edward Zeigler appeals from the judgment of sentence seven to
fourteen years incarceration to be followed by ten years probation imposed
by the trial court after he pled guilty to aggravated assault and persons not
to possess a firearm. 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 decline to permit counsel to withdraw at this stage and remand
with directions to counsel to file either a merits brief or a supplemental
Anders brief addressing whether Appellant’s triggering New York robbery
offense for the persons not to possess a firearm was a juvenile adjudication
or a conviction. See Commonwealth v. Hale, 85 A.3d 570 (Pa.Super.
2014), allowance of appeal granted, __ A.3d __ (Pa. 2014) (filed July 2,
*
Former Justice specially assigned to the Superior Court.
J-S12008-15
2014) (discussing grading of persons not to possess a firearm where prior
offense was a juvenile adjudication).1
The trial court delineated the following facts underlying Appellant’s
entry of his guilty plea.
On October 19, 2011, the complainant, Javier Cancel was sitting
alone at the Cove bar, chatting with the bartender, and having a
few beers. The Defendant and Ms. Ann Marie Thorsen, who were
seated in a lounge area behind the barstools, were making a lot
of noise and were goofing around. The Defendant came up
numerous times to the bar to order drinks and had some words
with Mr. Cancel. Video surveillance showed that the Defendant
appeared to be bothering Mr. Cancel, leaning on him, putting his
arm around him, and making comments. At one point, Mr.
Cancel got up from his seat for a few moments during which
time the Defendant sat down on Mr. Cancel's bar stool even
though there were plenty of other bar stools available. When Mr.
Cancel came back, he and the Defendant began to elbow each
other and argue. The Defendant started swearing at Mr. Cancel
and told him to come outside and fight. Mr. Cancel remained at
the bar for a few moments, and the Defendant and a female
companion went outside the bar. Mr. Cancel then did get up and
leave to go outside to see what was going on; he was
anticipating engaging in a fistfight with the Defendant. When Mr.
Cancel got outside, the Defendant told the female to leave the
area. He headed immediately toward Mr. Cancel and threw at
least three punches. Mr. Cancel was able to duck and avoid
those initial punches and then told the Defendant, ''What is that?
All you've got?" At this time the Defendant, who was only five
feet away, pulled a firearm from his front waistband area and
held it with his arm directly outstretched at chest height and
pointed it at Mr. Cancel. He fired at least three times. Mr. Cancel
put his right forearm up to shield his face; one of the bullets
entered his forearm. The Defendant then walked southbound on
Richmond Street where Joseph Rayner saw a firearm in his hand.
1
If Appellant’s New York robbery offense was a juvenile adjudication, under
current Pennsylvania law, his ten-year probationary sentence for the person
not to possess a firearm would exceed the statutory maximum sentence
allowable.
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The Defendant then walked to his car which was parked on
Melvale Street where he removed his jacket and most of his
clothing and put the clothing inside his vehicle. The Defendant
threw the gun (a .380 caliber firearm) in an empty lot nearby.
Wearing only a black undershirt, he cut through an abandoned
house and ran to Tilton Street. Police Officer McGuire, who was
responding to the area, was traveling westbound on Tilton Street
when he spotted the Defendant (who matched the flash
information) hiding between two parked cars. Once Officer
McGuire stopped his vehicle, the Defendant darted out and
started running in the opposite direction. Officer McGuire
pursued on foot and was able to catch the Defendant with the
assistance of at least three other officers and adult male
neighbors from the block.
Mr. Rayner identified the Defendant as the male he saw carrying
the gun down Richmond Street, and Mr. Cancel identified the
Defendant without any hesitation at the preliminary hearing. The
three fired cartridge casings were examined, and it was
determined that they were fired from the same gun, that being a
.380 which was found in the nearby alley.
Trial Court Opinion, 1/28/14, at 1-2 n.1.
The Commonwealth initially charged Appellant with attempted murder,
aggravated assault, persons not to possess a firearm, carrying an unlicensed
firearm, carrying a firearm on the public streets of Philadelphia, terrorist
threats, simple assault, and recklessly endangering another person. The
persons not to possess a firearm charge arose because Appellant previously
committed a first-degree robbery as a fifteen-year-old juvenile in New York.
According to the representations of the Commonwealth in a motion to
preclude bail, this resulted in a conviction and jail sentence, rather than an
adjudication of delinquency.
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Appellant entered an open guilty plea to the aggravated assault and
person not to possess a firearm charges. The Commonwealth nolle prossed
the remaining counts. The court sentenced Appellant on May 2, 2013, to the
aforementioned period of incarceration on the aggravated assault charge
and ten years probation for the firearms violation. Appellant filed a timely
motion for reconsideration of his sentence, alleging that the court sentenced
him in excess of a mandatory minimum. The trial court denied that motion
on July 2, 2013.
This timely appeal ensued. 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 complied, raising three issues: (1) his plea was
involuntary; (2) his sentence was excessive; and, (3) the court erred in
denying his motion for reconsideration. The trial court authored its Pa.R.A.P.
1925(a) decision. Appellant’s counsel now files a petition to withdraw and
an accompanying Anders brief, contending that there are no non-frivolous
issues to be reviewed.2
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
(Pa.Super. 2013) (en banc). The procedural requirements for withdrawal
2
This Court remanded for the appointment of new counsel on July 22, 2014.
The trial court appointed current counsel on July 24, 2014.
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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.
Santiago, supra at 361.
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Counsel provided the factual and procedural background of this case.
He also discusses his reasons for determining that Appellant’s appeal is
frivolous, and provides legal authority as to why he has concluded that the
appeal is wholly frivolous. Specifically, counsel has comprehensively
outlined the governing law relative to guilty plea withdrawals and the
voluntariness of a plea, as well as addressed Appellant’s sentencing claim.
Accordingly, we proceed to the merits of this appeal and our own
independent review of the entire record. See Anders, supra at 744 (“the
court—not counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous.”) (emphasis
added); Commonwealth v. Goodwin, 928 A.2d 287, 292-293 (Pa. Super.
2007) (en banc) (finding that Anders requires that this Court conduct an
independent review of the record to discern if there are additional,
nonfrivolous issues that counsel failed to address); Commonwealth v.
Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (“We now must conduct an
independent review of the record to determine whether the issues identified
by Harden in this appeal are, as counsel claims, wholly frivolous, or if there
are any other meritorious issues present in this case.”).
Counsel begins by accurately noting that a guilty plea generally waives
all defects and defenses unrelated to jurisdiction, the legality of the
sentence, and the validity of the plea. Commonwealth v. Main, 6 A.3d
1026 (Pa.Super. 2010). He points out that every court of common pleas has
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jurisdiction over matters arising out of the Pennsylvania Crimes Code.
Anders brief at 9 (citing Commonwealth v. Bethea, 828 A.2d 1066 (Pa.
2003)).
Continuing, counsel discusses the law pertaining to whether a plea is
involuntary. Counsel accurately recognizes that we consider the totality of
the circumstances in ascertaining whether a plea was knowing, voluntary,
and intelligent. Id. (citing Commonwealth v. Flanagan, 854 A.2d 489,
500 (Pa. 2004)). In addition, counsel has outlined the six areas of inquiry
under Pa.R.Crim.P. 590 and discussed each of those factors. Those factors
include:
1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the right to
a trial by jury?
4) Does the defendant understand that he or she is presumed
innocent until found guilty?
5) Is the defendant aware of the permissible ranges of sentences
and/or fines for the offenses charged?
6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super. 2008).
Appellant acknowledged at his plea that he was aware of the elements
of the crimes and the district attorney fully delineated the facts supporting
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the plea. In addition, Appellant admitted that he understood that he had the
right to a jury trial and the court undertook an extensive colloquy on his trial
rights. The court informed Appellant that, if he elected to have a trial, he
was presumed innocent and that the Commonwealth bore the burden of
establishing his guilt beyond a reasonable doubt.
The court also queried Appellant regarding his understanding of his
plea and explained that he was entering an open guilty plea with no
sentencing agreement. Appellant also stated that no promises had been
made to induce him to plead guilty. Further, the court explained the
applicable range of sentences and fines for aggravated assault and persons
not to possess a firearm. However, an issue has arisen as to whether the
maximum sentence for the firearms charge was correctly set forth.
Accordingly, we cannot yet conclusively state that Appellant’s plea was
intelligently entered and we address the grading of his firearms offense issue
after discussing the second claim analyzed by counsel.
The second issue addressed by counsel pertains to the discretionary
aspects of Appellant’s 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.
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2119(f) statement.” Id. 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 v. Wilson, 578 A.2d 523 (Pa.Super.
1990); see also Commonwealth v. Lilley, 978 A.2d 995 (Pa.Super.
2009). Hence, we do not consider counsel’s failure to submit a Rule 2119(f)
statement as precluding review of whether Appellant’s issue is frivolous.
We add that, “[t]here is no absolute right to appeal when challenging
the discretionary aspect of a sentence.” Cartrette, supra at 1042. “[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). In conducting this review, we are guided by
the statutory requirements of 42 Pa.C.S. § 9781(c) and (d). Id. Section
9781(c) provides that this Court shall vacate a sentence and remand under
three circumstances:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
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42 Pa.C.S. § 9781(c). In addition, we consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(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. § 9781(d).
Appellant’s position in his post-sentence motion was essentially that
the aggravated assault sentence was excessive and that the court should
have considered that his prior robbery occurred over fifteen years earlier
when he was a juvenile. In his 1925(b) statement, Appellant baldly averred
that his sentence was excessive. Generally, a bald excessiveness claim does
not raise a substantial question. See Dodge, supra (collecting and
discussing nuances of excessiveness sentencing challenges). However, an
excessiveness claim in conjunction with an assertion that the court did not
adequately consider a mitigating factor may present a substantial question.
Id.
Counsel notes that the sentencing court provided its reasons for
sentencing Appellant, and that, because the sentence fell within the
standard sentencing guideline range, it was not excessive. In this regard,
the parties agreed that Appellant’s prior record score under the sentencing
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guidelines was a two. The offense gravity score for his aggravated assault
was an eleven. Considering the deadly weapon used enhancement, 204 Pa.
Code § 303.10(a)(2); 204 Pa. Code 303.17(b), 3 the standard guideline
range was between five and one-half years to seven years incarceration. The
court sentenced Appellant within the guideline range. We add that the trial
court in this matter considered a pre-sentence report; therefore, it is
presumed that the court adequately considered relevant mitigating and
aggravating factors. Commonwealth v. Fowler, 893 A.2d 758,
766 (Pa.Super. 2006).
Instantly, Appellant’s sentence is not clearly unreasonable. Appellant
fired a gun three times at an individual at relatively close range. The court
considered a pre-sentence report and sentenced Appellant within the
standard sentencing guideline range where a person uses a weapon during
the commission of his crime. Moreover, the court explained its reasons for
its sentence on the record. Thus, we agree that Appellant’s excessive
sentencing challenge is frivolous. For similar reasons, Appellant’s position
that the trial court erred in denying motion for reconsideration fails.
We add that we are aware that a mandatory minimum statute exists
for Appellant’s aggravated assault crime since he admitted to visibly
3
The sentencing guidelines applicable to Appellant were those readopted
and amended September 6, 2008, made applicable to offenses committed
on or after December 5, 2008. See 38 Pa.B. 4971; 204 Pa. Code § 303.1
et. seq. The deadly weapon used enhancement matrix under the former
guidelines was found under 204 Pa. Code § 303.18.
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possessing a firearm during its commission. 42 Pa.C.S. § 9712. Based on
decisions from this Court, imposing such a mandatory is illegal. See
Commonwealth v. Ferguson, 2015 Pa. Super. 1; cf. Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc). However, the
sentencing court exceeded the mandatory minimum sentence when it
applied the standard guideline range sentence where a deadly weapon was
used. Hence, the court did not sentence the defendant based on the
mandatory statute, and his sentence is not illegal on that ground.
Nonetheless, as mentioned above, our independent review of the
record has revealed a potential non-frivolous issue that relates to the legality
of Appellant’s persons not to possess a firearm sentence. At Appellant’s
guilty plea hearing the Commonwealth outlined the grounds for Appellant’s
person not to possess a firearm offense as follows.
In this case, we’re talking about the .380 caliber firearm on the
date of this incident, and also that you had a prior felony
conviction—and I’m talking about the robbery—that makes you
ineligible to possess a firearm. And even if it was a juvenile
adjudication, even if it was a juvenile case, because it was a
felony of the first degree, that robbery, that means you can
never have a gun again. So by having a gun when you had the
juvenile case for the F1 robbery, that would be why we would be
able to prove you guilty of the 6105.
N.T., 3/4/13, at 18.
At this point, Appellant indicated he was confused because, according
to his attorney, that robbery offense had been expunged. The court
provided that, as far as it knew, Appellant had a felony conviction. A
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discussion was then held off the record between the prosecutor and counsel,
followed by an off the record discussion between Appellant and his lawyer.
Here, the record also contains a Commonwealth motion that indicates
that Appellant served jail time for the New York robbery, which would
suggest he was convicted as an adult despite having been a juvenile.
However, the guilty plea transcript is ambiguous as to whether Appellant
was adjudicated delinquent of the New York felony robbery or convicted of
that offense.4 Pursuant to Hale, supra, an adjudication would reduce the
grading of Appellant’s offense and could result in his ten year probationary
sentence being illegal. Accordingly, we direct counsel to file either a merits
brief or a clarifying supplemental Anders brief with respect to this issue and
any issue related thereto within forty-five days of the filing of this decision.
The Commonwealth shall have thirty days from that filing to respond.
Case remanded. Jurisdiction retained.
4
The certified record does not contain the confidential pre-sentence report
considered by the trial court. Hence, we cannot glean from that document
whether Appellant was convicted or adjudicated delinquent for the New York
robbery. However, we do note that the parties agreed that Appellant’s prior
record score was a two, and a first-degree felony robbery adjudication or
conviction is considered a four-point offense. 204 Pa. Code 303.7; 204
Pa.Code 303.15. Four-point juvenile offenses lapse if committed before the
individual’s fourteenth birthday. 204 Pa. Code 303.6. The lapse of the
offense for purposes of the sentencing guidelines would not remove that
charge from consideration with respect to the persons not to possess a
firearm statute.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2015
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