Com. v. Rought, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HARRY EDWARD ROUGHT :
:
Appellant : No. 1807 MDA 2019
Appeal from the Judgment of Sentence Entered October 3, 2019
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000560-2019
BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED MAY 22, 2020
Harry Edward Rought (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to possession of a firearm prohibited
and simple assault.1 Additionally, Appellant’s counsel (Counsel), seeks to
withdraw from representation pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009). Upon review, we grant Counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
On July 8, 2019, Appellant assaulted the victim by striking her in the
head. Bradford County police arrested Appellant at his home, where they
discovered a firearm. On August 28, 2019, Appellant entered an open guilty
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6105(a)(1) and 2701(a)(1).
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plea to possession of a firearm prohibited and simple assault. On October 3,
2019, the trial court sentenced Appellant to an aggregate 4 to 10 years of
incarceration. That same day, the trial court also sentenced Appellant at a
separate docket number to 5 days to 6 months of incarceration for a DUI
conviction. The trial court ordered Appellant’s underlying sentence to run
consecutively to the DUI sentence, for an aggregate 4 years and 5 days to 10
years and 6 months of incarceration. On October 9, 2019, Appellant filed a
timely post-sentence motion seeking reconsideration of his sentence, which
the trial court denied on October 15, 2019.
This timely appeal followed. Both Appellant and the trial court complied
with Pennsylvania Rule of Appellate Procedure 1925. On February 4, 2020,
Counsel filed an Anders brief, in which he argues that Appellant’s appeal is
frivolous and requests permission to withdraw as counsel.2 Appellant did not
file a response to Counsel’s petition.
At the outset, we note the mandates that counsel seeking to withdraw
pursuant to Anders must follow. These mandates and the significant
protection they provide arise because a criminal defendant has a constitutional
right to a direct appeal and to counsel on that appeal. Commonwealth v.
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2 Counsel did not file a separate petition to withdraw, but rather set forth his
withdrawal request in his Anders brief. While this is satisfactory, we prefer
that counsel file a separate petition to withdraw. See Commonwealth v.
Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995) (“Although we believe the
more desirable practice would be to submit a separate withdrawal request to
the court, we . . . treat counsel’s [request] in the brief as such a request.”).
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Woods, 939 A.2d 896, 898 (Pa. Super. 2007). We have summarized the
requirements as follows:
Direct appeal counsel seeking to withdraw under Anders must 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 counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate’s brief on
Appellant’s behalf).
Id. (citations omitted).
Additionally, as to the content of an Anders brief:
[T]he Anders brief that accompanies court-appointed counsel’s
petition to withdraw … 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. When faced with a purported Anders brief, we
may not review the merits of the underlying issues without first deciding
whether counsel has properly requested permission to withdraw.
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation
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omitted). If counsel has satisfied the above requirements, it is then this
Court’s duty to review the trial court proceedings to determine whether there
are any other non-frivolous issues that the appellant could raise on appeal.
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
Instantly, we conclude that Counsel has complied with the requirements
outlined above. Counsel filed a petition with this Court stating that after
reviewing the record, he finds this appeal to be wholly frivolous. Anders Brief
at 22. In conformance with Santiago, Counsel’s brief includes summaries of
the facts and procedural history of the case, and discusses the issues he
believes might arguably support Appellant’s appeal. See Anders Brief at 8-
11, 13-17. Counsel’s brief sets forth his conclusion that the appeal is frivolous
and includes citation to relevant authority. Id. Finally, Counsel has attached
to his petition to withdraw the letter he sent to Appellant, which enclosed
Counsel’s petition and Anders brief. Id. at 20, 23. Counsel’s letter advised
Appellant of his right to proceed pro se or with private counsel and to raise
any additional issues that he deems worthy of this Court’s consideration. Id.
We thus proceed to review the merits of Appellant’s claims.
Counsel’s Anders brief presents two sentencing issues:
I. Was the sentence imposed on Appellant excessive in light of
Appellant’s circumstances, particularly with regard to
Appellant’s treatment and rehabilitative needs?
II. Did the trial court abuse its discretion by not running a
Simple Assault sentence of six months to 24 months
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concurrent with another sentence of 36 months to eight
years for a person not to possess [firearm], when both
charges arose out of the same incident on the same date?
Anders Brief at 4.
Appellant challenges the discretionary aspects of his sentence.3 “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
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3 Appellant only seeks to challenge the discretionary aspects of sentence for
his possession and simple assault conviction, which appear at a single docket
number. Appellant does not challenge the discretionary aspects of sentence
for his DUI conviction. Accordingly, our Supreme Court’s directive in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), is inapplicable.
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Appellant filed a timely notice of appeal, preserved his issues in a post-
sentence motion, and included in his brief a Pa.R.A.P. 2119(f) statement. See
Anders Brief at 18-19. Therefore, we examine whether Appellant presents a
substantial question for review.
Appellant argues that his sentence is excessive. He avers that the
imposition of consecutive sentences is unduly harsh, and the trial court failed
to adequately consider his rehabilitative needs. Anders Brief at 12; see also
N.T., 10/3/19, at 8-9. Appellant’s raises a substantial question. See
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010) (“[T]he
imposition of consecutive, rather than concurrent, sentences may raise a
substantial question . . . where the aggregate sentence is unduly harsh,
considering the nature of the crimes and length of imprisonment.”);
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“This
Court has also held that an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.”).
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We must
accord the sentencing court’s decision great weight because it
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was in the best position to review the defendant’s character,
defiance or indifference, and the overall effect and nature of the
crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations
omitted).
At sentencing, the trial court commented:
. . . I do have the PSI, which confirms that [Appellant] is thirty-
seven, he’s married, or he’s separated I should say, he was
married, is separated, has two children, one is eighteen and one
is fourteen or thereabouts. Has a lot on his criminal history, dating
back to 2016, is all, so you seemed to have a late start, but from
2016 on, there’s quite a bit. A few indirect criminal contempts,
few possession charges, a few controlled substances,
paraphernalia, mostly possession and drug related offenses, as
well as violations of PFAs. He has had a problem with meth, which
coincides with his criminal history, in that it didn’t start, his
problem with meth didn’t start until 2014 which is almost two
years before his first contact with the criminal justice system.
Unfortunately, he’s been using it, according to him, on a daily
basis. He’s also been using heroin as well. Has been clean, I
guess, on parole, so he says, and then he had a relapse.
N.T., 10/3/19, at 6.
The court further explained:
All right, so I think we’ve covered it all, I think the sentences
within the standard range makes sense, I’m willing to go at the
lower end of the standard range for the most significant offense,
or the most significant in terms of it being a felony, which is the
mere possession of the weapon, but, the simple assault, I’m going
to sentence in the middle of the standard range, which, I think is
appropriate. . . . I, I don’t believe a low end is appropriate for
that given the circumstances.
Id. at 9-10.
We discern no error by the trial court. “[W]here the sentencing court
imposed a standard-range sentence with the benefit of a pre-sentence report,
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we will not consider the sentence excessive.” Commonwealth v. Corley,
31 A.3d 293, 298 (Pa. Super. 2011). Additionally, “[i]n those circumstances,
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.” Id. Here, in addition to reading and
referencing the PSI report, the trial court specifically addressed Appellant’s
rehabilitative needs and the seriousness of his crimes.
As to consecutive sentences, “long standing precedent . . . recognizes
that [the Sentencing Code] affords the sentencing court discretion to impose
its sentence concurrently or consecutively to other sentences being imposed
at the same time or to sentences already imposed.” Commonwealth v.
Marts, 889 A.2d 608, 612 (Pa. Super. 2005). We will not disturb consecutive
sentences unless the aggregate sentence is “grossly disparate” to the
defendant’s conduct, or “viscerally appear[s] as patently unreasonable.”
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa. Super.
2010).
For the above reasons, we find no merit to Appellant’s sentencing
claims. Further, our independent review reveals no other non-frivolous issues
Appellant could have raised on appeal. See Dempster, 187 A.3d at 272. We
therefore grant Counsel’s petition to withdraw and affirm Appellant’s judgment
of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/22/2020
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