Com. v. Garcia, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSEPH GARCIA :
:
Appellant : No. 487 WDA 2020
Appeal from the Judgment of Sentence Entered March 13, 2020
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000607-2014
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JANUARY 25, 2021
Appellant, Joseph Garcia, appeals from the March 13, 2020 judgment of
sentence entered in the Criminal Division of the Court of Common Pleas of
Crawford County that imposed an aggregate punishment of nine to 60 months’
incarceration following revocation of Appellant’s probationary sentence. In
addition, Appellant’s attorney, Emily M. Merski, Esq. (“Attorney Merski”), filed
an Anders brief1 and a petition to withdraw. We grant counsel’s petition to
withdraw and affirm the judgment of sentence.
The facts and procedural history of this case are as follows. On March
12, 2015, Appellant entered guilty pleas to charges of indecent
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* Former Justice specially assigned to the Superior Court.
1Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009) and Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981).
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assault – person less than 13 years of age (18 Pa.C.S.A. § 3126(a)(7)) and
corruption of minors (18 Pa.C.S.A. § Pa.C.S.A. § 6301(a)(1)(i)). On
September 11, 2015, after Appellant entered his guilty pleas, the trial court
directed Appellant to serve 24 to 48 months’ incarceration for indecent
assault, followed by three years’ probation. In addition, the court ordered
Appellant to serve five years’ probation for corruption of minors to run
consecutive to his three-year probationary sentence for indecent assault.
Finally, the court found that Appellant met the criteria to be deemed a sexually
violent predator (SVP). See 42 Pa.C.S.A. §§ 9799.10 et seq.
After Appellant served the maximum period of incarceration for his
indecent assault conviction, he commenced service of his probationary
sentences. On October 18, 2019, the Crawford County Adult Probation
Department filed a notice of alleged violations. The department alleged that
Appellant had direct, unsupervised contact with two minor children who stayed
overnight at his residence on September 20 and 21, 2019. According to the
department, this conduct violated the terms of Appellant’s probationary
counseling program, resulted in his unsuccessful discharge from sex-offender
therapy, and breached restrictions imposed by his SVP status.
Following a Gagnon I2 hearing, the trial court found probable cause to
believe that Appellant violated the terms of his supervision. Thereafter, at the
conclusion of a Gagnon II hearing convened on December 17, 2019,
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Appellant admitted the violations. Unsatisfied by the fact that Appellant’s
explanations of the violations did not align with the facts alleged by the
department, the court scheduled a supplemental hearing on January 24, 2020
to hear and consider additional testimony regarding the allegations set forth
in the department’s notice.
On March 13, 2020, the trial court conducted a dispositional hearing
during which it revoked Appellant’s probation. Consequently, the court
re-sentenced Appellant to serve an aggregate term of 15 to 96 months in
prison.3 Appellant did not orally request the court to reconsider his sentence
at the March 13, 2020 hearing, nor did he file a post-sentence motion seeking
modification of his sentence. This timely appeal followed.4
Attorney Merski filed an Anders brief and a petition to withdraw as
Appellant’s counsel. Counsel’s Anders brief raised an issue challenging the
discretionary aspects of Appellant’s revocation sentence, alleging that the
court abused its discretion in imposing a punishment that is manifestly
excessive, unreasonable, and inconsistent with the objectives of the
sentencing code. Preliminarily, we address Attorney Merski’s petition to
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3 Specifically, the court ordered Appellant to serve six to 36 months’
incarceration for indecent assault. In addition, the court ordered Appellant to
serve nine to 60 months’ incarceration for corruption of minors, consecutive
to the newly-imposed sentence for indecent assault. Appellant received six
months’ credit for time served.
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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withdraw and the accompanying Anders brief, both alleging this appeal is
frivolous.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). In order to withdraw pursuant to Anders, counsel
must: (1) petition the court for leave to withdraw, stating that after making
a conscientious examination of the record it has been determined that the
appeal would be frivolous; (2) file a brief referring to anything that might
arguably support the appeal, but which does not resemble a “no merit” letter
or amicus curiae brief; and, (3) furnish a copy of the brief to defendant and
advise him [by letter] of his right to retain new counsel, proceed pro se or
raise any additional points that he deems worthy of the court's attention.
Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).
Counsel seeking to withdraw must attach to their petitions a copy of the letter
advising their clients of the aforementioned rights. See id. at 752. An
Anders brief “must [meet] the requirements established by our Supreme
Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).”
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014) (parallel
citation omitted). Specifically, counsel’s Anders brief must comply with the
following requisites:
(1) provide a summary of the procedural history and facts, with
citations to the record;
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(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. (citation omitted). “Once counsel has satisfied the above requirements, it
is then this Court’s duty to conduct its own review of the trial court’s
proceedings and render an independent judgment as to whether the appeal
is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d 287,
291 (Pa. Super. 2007) (en banc) (citation and internal quotation marks
omitted).
Instantly, Attorney Merski satisfied the technical requirements of
Anders and Santiago. In her Anders brief, counsel identified the pertinent
factual and procedural history and made reference to the facts and
proceedings of record. Counsel raises a claim challenging the discretionary
aspects of Appellant’s revocation sentence that could arguably support an
appeal but, ultimately, counsel concludes the appeal is frivolous. Counsel also
attached to her petition a letter to Appellant that fulfills the notice
requirements of Millisock.5 Appellant has not filed a response to counsel’s
letter, the Anders brief, or the petition to withdraw. Accordingly, we proceed
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5 Our review of the record confirms that Attorney Merski forwarded copies of
the Millisock letter, the Anders brief, and her petition to withdraw to
Appellant.
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to conduct an independent review of the record to determine whether the
appeal is wholly frivolous.
In her Anders brief, counsel raises the following issue on Appellant’s
behalf:
1. Whether the sentencing court abused its discretion when
re-sentencing [Appellant] such that the [new] sentence is
manifestly excessive, unreasonable and inconsistent with
the objectives of the sentencing [code]?
Anders Brief at 4 (cleaned up; block capitalization omitted). This issue
raises a challenge to the discretionary aspects of Appellant’s revocation
sentence.6
An appellant wishing to appeal the discretionary aspects of a
probation-revocation sentence has no absolute right to do so but,
rather, must petition this Court for permission to do so. Before
this Court can address such a discretionary challenge, an appellant
must invoke this Court's jurisdiction by establishing that (1) the
appeal was timely filed; (2) the challenge was properly preserved
by objecting during the revocation sentencing or in a
post-sentence motion; (3) his or her brief includes a concise
statement of the reasons relied upon for allowance of appeal of
the discretionary aspects of the sentence pursuant to Pa.R.A.P.
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6 Counsel’s Anders brief omitted a copy of the Pa.R.A.P. 1925(b) statement.
See Pa.R.A.P 2111(d) (a copy of the Pa.R.A.P. 1925(b) statement filed with
trial court shall be appended to Appellant’s brief; if the trial court has not
entered an order directing the filing of such statement, briefs shall contain an
averment that no order to file Rule 1925(b) statement was entered). This
omission has not significantly impeded appellate review. Moreover, whenever
an issue, which is otherwise waived on appeal, is raised in the context of an
Anders brief, we will consider the issue to determine its merit.
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(holding that Anders requires the review of issues otherwise waived on
appeal).
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2119(f); and (4) the concise statement raises a substantial
question that the sentence is inappropriate under the Sentencing
Code.
Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (internal
citations and quotations omitted).
Appellant timely filed a notice of appeal and included a Rule 2119(f)
concise statement in the Anders brief. Appellant has not, however, preserved
his discretionary sentencing challenge by seeking modification of his sentence
orally before the court or by timely filing a post-sentence motion challenging
the excessiveness of the sentence. Thus, Appellant has not validly invoked
the jurisdiction of this Court to consider his discretionary sentencing challenge.
Even if we move past Appellant’s failure to preserve his discretionary
sentencing challenge before the trial court and examine whether Appellant has
presented a substantial question for our review, we would conclude that
Appellant has fallen short on this prerequisite as well. In his Rule 2119(f)
statement, Appellant baldly asserts that the trial court imposed an excessive
sentence in violation of 42 Pa.C.S.A. § 9721. Here, Appellant’s aggregate
sentence of 15 to 96 months’ incarceration consisted of a six-to-36 month
sentence for indecent assault followed consecutively by a sentence of
nine-to-60 months’ incarceration for corruption of minors. It is well-settled,
however, that a bald claim of excessiveness, even due to the consecutive
nature of a sentence, does not ordinarily raise a substantial question. See
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal
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denied, 91 A.3d 161 (Pa. 2014); see also Commonwealth v. Moury, 992
A.2d 162, 171-172 (Pa. Super. 2010) (“The imposition of consecutive, rather
than concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”).
Finally, turning to the substantive merit of Appellant’s discretionary
sentencing challenge, it is immediately evident that any such claim is utterly
devoid of merit. We review Appellant's challenge to the discretionary aspects
of his sentence following the revocation of his probation using the following
standard.
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment - a
sentencing court has not abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012).
Because Appellant challenges a sentence imposed following revocation
of his probation, the sentencing guidelines do not apply and the proper focus
of appellate review looks to the provisions of the Sentencing Code found at 42
Pa.C.S.A. § 9721(b) and 42 Pa.C.S. § 9771(c). See Commonwealth v.
Williams, 69 A.3d 735, 741 (Pa. Super. 2013); Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). Section 9721(b) provides
in pertinent part as follows:
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[T]he 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).
Section 9771(c) limits the range of sentencing alternatives available to
the revocation court when considering a sentence of total confinement. It
states in relevant part:
(c) Limitation on sentence of total confinement.—The court shall
not impose a sentence of total confinement upon revocation
unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that
he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of
the court.
42 Pa.C.S.A. § 9771(c).
Weighing these standards, and based upon our independent
review of the record, we are convinced that the trial court acted well
within the scope of its discretion when it imposed the revocation
sentence challenged herein. In its amended order of sentence, the trial
court noted:
The [trial c]ourt believes the violation is significant when placed
with[in] the backdrop of [Appellant’s record of child sexual assault
convictions in 1983, 2003, and 2013], as well as his history in the
case and other prior findings, but most importantly, based upon
the fact that [Appellant], after being in programming for over a
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year, did not seem to understand the impact of the situation or of
the choices that he was making.
This sentence is essential to vindicate the authority of the [c]ourt
and to protect the community and those around [Appellant]. It is
reached only after a careful [deliberative] process of the standard
sentencing factors, as well as looking into the revocation rules and
the [c]ourt has contemplated all the lesser levels of incarceration
and believes that [Appellant’s] history, including the fact that he
maxed out previously, all point to a state prison sentence being
the only viable option in the case.
The [c]ourt believes the length of the sentence is appropriate to
note the significance of the issue and more importantly to give
[Appellant] time to complete programming in an appropriate State
Correctional Program for sex offenders. The [c]ourt did not
believe imposing a probationary tail was appropriate as the
supervision should occur at a parole level with any violations in
the future arising through the parole violation process.
Amended Order, 3/19/20, at 2 para. 5-7 (paragraph numbering omitted).
There is ample and undisputed evidence in the record to support
the trial court’s decision to impose a revocation sentence consisting of
total confinement, as it did. Accordingly, because the record supports
Attorney Merski’s assessment that Appellant’s appeal is wholly frivolous,
and because our independent review of the record reveals no additional,
non-frivolous claims, we grant counsel’s petition to withdraw and affirm
the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2021
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