Com. v. Gross, W., Jr.

J-S02011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE D. GROSS, JR. :
:
Appellant : No. 756 MDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001298-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE D. GROSS, JR. :
:
Appellant : No. 757 MDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001299-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE DAVID GROSS, JR. :
:
Appellant : No. 758 MDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001480-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S02011-20
:
v. :
:
:
WAYNE DAVID GROSS, JR. :
:
Appellant : No. 759 MDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001776-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE D. GROSS, JR. :
:
Appellant : No. 760 MDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001780-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE D. GROSS, JR. :
:
Appellant : No. 761 MDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003976-2016
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 18, 2020
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Appellant, Wayne D. Gross, Jr., appeals from the judgment of sentence
of 80 to 160 months’ incarceration, imposed after his previous sentence of
State Intermediate Punishment (SIP)1 was revoked in his six underlying
cases.2 Appellant seeks to challenge the discretionary aspects of his
revocation sentence. Additionally, his counsel, Robert M. Buttner, Esq., seeks
to withdraw his representation of Appellant pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After careful review, we affirm Appellant’s judgment of sentence and
grant counsel’s petition to withdraw.
____________________________________________
1 This Court has explained:
SIP is a two-year program designed to benefit certain criminal
offenders with drug and alcohol problems. Treatment in the
program is a privilege granted at the discretion of the sentencing
court. During the two-year program, the sentenced individual
progresses from incarceration to in-patient drug treatment,
outpatient treatment and supervision, and, finally, reintegration
into the community. 61 Pa.C.S. § 4105(b). The program gives
the Department of Corrections “maximum flexibility” to “transfer
a participant back and forth between less restrictive and more
restrictive settings.” 61 Pa.C.S. § 4105(c)(2).
Commonwealth v. Flowers, 149 A.3d 867, 873 (Pa. Super. 2016) (some
citations, quotation marks, and footnotes omitted).
2 Appellant properly filed a separate notice of appeal in each of his six
underlying cases. See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.
2018) (“[T]he proper practice under [Pa.R.A.P.] 341(a) is to file separate
appeals from an order that resolves issues arising on more than one docket.
The failure to do so requires the appellate court to quash the appeal.”). On
June 3, 2019, this Court issued a per curiam order that sua sponte
consolidated Appellant’s cases.
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In 2015, Appellant pled guilty to two counts of theft by unlawful taking
in CP-40-CR-0001298-2015 and CP-40-CR-0001480-2015, as well as
terroristic threats and recklessly endangering another person in CP-40-CR-
0001299-2015. On October 14, 2015, he received a sentence of probation.
In 2017, Appellant pled guilty in three new cases to two counts of
burglary (CP-40-CR-0001776-2016 and CP-40-CR-0001780-2016), and two
counts of theft by unlawful taking (CP-40-CR-0003976-2016). Appellant’s
new cases resulted in the revocation of his probation in his 2015 cases. On
April 21, 2017, the court sentenced Appellant on all six cases to SIP.
However, Appellant did not adhere to the SIP requirements, and he was
ultimately discharged from the program in January of 2019. On April 5, 2019,
the trial court held a resentencing hearing for Appellant’s six cases. At the
close thereof, the court imposed consecutive, standard-range sentences
resulting in an aggregate term of 80 to 160 months’ incarceration. Appellant
was given credit for 925 days of time served.
Appellant did not file a post-sentence motion. On May 6, 2019, he filed
timely notices of appeal in each case. After the court ordered Appellant to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
Attorney Buttner filed a Rule 1925(c)(4) statement of his intent to file an
Anders brief and petition to withdraw. The court filed a Rule 1925(a) opinion
on July 2, 2019. On October 30, 2019, Attorney Buttner filed his petition to
withdraw and Anders brief with this Court, discussing the following issue that
Appellant seeks to raise on appeal:
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1. Whether the trial court abused its discretion and impose[d] an
unduly harsh sentence when it imposed a state sentence of total
confinement, following revocation of SIP, of an aggregate term of
80 to 160 months[,] which was the result of running six (6) cases
consecutive to one another?
Anders Brief at 6.
Attorney Buttner concludes that this issue is frivolous, and that
Appellant has no other, non-frivolous issues he could pursue herein.
Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[[] Appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The 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, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that [] Appellant deems worthy of the court[’]s attention in
addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] 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) (en banc).
In this case, Attorney Buttner’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claim, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Buttner stated in his petition to withdraw
that he has supplied Appellant with a copy of his Anders brief, and he
attached a letter directed to Appellant in which he informed Appellant of the
rights enumerated in Nischan. Accordingly, counsel has complied with the
technical requirements for withdrawal. We will now independently review the
record to determine if Appellant’s issue is frivolous, and to ascertain if there
are any other, non-frivolous issues he could pursue on appeal.
Initially, we agree with Attorney Buttner that Appellant’s discretionary-
aspects-of-sentencing claim is frivolous because it was not preserved by
Appellant orally at the sentencing hearing, or in a post-sentence motion. See
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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (“Objections
to the discretionary aspects of sentence are generally waived if they are not
raised at the sentencing hearing or in a motion to modify the sentence
imposed.”) (citation omitted).
Notwithstanding, we also would agree with Attorney Buttner that
Appellant’s sentencing claim is frivolous on the merits.
Preliminarily, we recognize … that [a] SIP sentence [is] analogous
to a sentence of probation. See … Commonwealth v.
Kuykendall, 2 A.3d 559, 563–564 (Pa. Super. 2010)[]. We
review a sentence imposed following a revocation of probation for
an error of law or an abuse of discretion. [Commonwealth v.]
Colon, 102 A.3d [1033,] 1041 [(Pa. Super. 2014)].
Accordingly, we apply that same standard in
reviewing revocation of [an a]pellant’s SIP sentence.
See Kuykendall, 2 A.3d at 563 (dictum). “An abuse of discretion
is not merely an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record, discretion
is abused.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.
Super. 2009) (en banc) (quoted citations omitted).
Flowers, 149 A.3d at 872–73 (footnote omitted).
Here, according to Attorney Buttner, Appellant believes “that the
sentence imposed is too harsh … because he immediately admitted to[,] and
took responsibility for[,] both his conduct and his violation, and, for these
reasons, the trial court should have imposed a sentence at the lowest end of
the guidelines and [ran] the sentences concurrent to one another.” Anders
Brief at 7. Appellant also insists that the court’s imposition of consecutive
sentences was an abuse of discretion.
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We are unconvinced. As Attorney Buttner observes, the trial court
presided over Appellant’s prior plea and sentencing hearings, thus
demonstrating the court’s familiarity with the circumstances of Appellant’s
cases. Id. at 15. The court also had the benefit of a pre-sentence report.
See N.T. Sentencing, 4/5/19, at 2.3 Therefore, we presume that the court
“was aware of the relevant information regarding [Appellant’s] character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Fowler, 893 A.2d 758, 766-67 (Pa. Super. 2006).
Additionally, at the sentencing hearing, the Commonwealth stressed the
fact that Appellant was before the court on six separate cases, and that the
trial court had given Appellant “multiple opportunities” to serve more lenient
sentences of probation, and then SIP. N.T. Sentencing at 3. Because
Appellant had exploited those opportunities, the Commonwealth asked the
court to impose “a lengthy period of incarceration in the state prison
system….” Id. at 3-4. While defense counsel argued that Appellant’s decision
to plead guilty and accept responsibility called for a sentence at the low end
____________________________________________
3 We note that Appellant objected to the pre-sentence report, claiming that it
incorrectly stated that he pled guilty to “two felony burglaries” in cases CP-
40-CR-0001776-2016 and CP-40-CR-0001780-2016. See N.T. Sentencing at
3. In response, the Commonwealth presented the court with Appellant’s
signed plea agreements to those two crimes, and the court pointed out that it
had presided over, and recalled, Appellant’s orally pleading guilty to those
offenses. Id. The certified records of those cases state that Appellant pled
guilty to burglaries graded as second-degree felonies. Accordingly, we discern
no error in the court’s finding no merit to Appellant’s objection to the pre-
sentence report.
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of the standard guideline range, id. at 4, the court ultimately agreed with the
Commonwealth. It explained that it “gave [Appellant] an opportunity to go to
the state SIP program and he didn’t like it and he didn’t want to be there. He
could have gotten rid of all of this in two years, but that’s not going to happen
now.” Id. Accordingly, the court imposed consecutive sentences in the high-
end of the standard-guideline range. As we have previously declared,
“extensive case law in this jurisdiction holds that defendants convicted of
multiple offenses are not entitled to a ‘volume discount’ on their aggregate
sentence.” Commonwealth v. Foust, 180 A.3d 416, 434-35 (Pa. Super.
2018) (citations omitted). Given this record and legal authority, we would
discern no abuse of discretion in the court’s decision to impose consecutive
terms of incarceration for Appellant’s six cases, even had he preserved his
sentencing issue for our review. Accordingly, we affirm his judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2020
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