Com. v. Curry, K.

J-A29042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN CURRY :
:
Appellant : No. 1 MDA 2020
Appeal from the Judgment of Sentence Entered November 27, 2019
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
201912528
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 19, 2021
Appellant, Kevin Curry,1 appeals from the aggregate judgment of
sentence of 12 months of confinement imposed following his conviction of two
counts of indirect criminal contempt for violating an order entered pursuant
to the Protection From Abuse (“PFA”) Act.2 With this appeal, appellate counsel
has filed a petition to withdraw and an Anders3 brief, stating that the appeal
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* Retired Senior Judge assigned to the Superior Court.
1 The caption in this case initially identified Appellant by his initials, K.C.
However, as the caption in the lower court used Appellant’s full name,
Appellant is not a minor, and there is no concern that the use of his full name
will identify a minor victim, we have amended the caption to reflect Appellant’s
full name.
2See generally 23 Pa.C.S. §§ 6101-6122. The contempt offense is set forth
at 23 Pa.C.S. § 6114(a).
3 Anders v. California, 386 U.S. 738 (1967).
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is wholly frivolous. After careful review, we affirm and grant counsel’s petition
to withdraw.
On October 10, 2019, the victim filed a PFA Act petition against
Appellant, and on that same date a temporary PFA order was issued that, inter
alia, required Appellant to vacate the victim’s home. Appellant was arrested
and charged with violating the temporary PFA order on October 10, 2019, the
same date that the order was issued, based on his return to the victim’s home
after being evicted. Appellant was unable to post bail and remained in
detention.
At a hearing on November 14, 2019, Appellant, who was represented
by counsel, pleaded guilty to the contempt violation and he was sentenced to
time served of 36 days. A final PFA order was entered by agreement on that
date providing, inter alia, for no contact between Appellant and the victim,
including by telephone, social media, or texting. The final PFA order also
provided that Appellant was evicted from the victim’s home and that he could
only return to pick up personal effects from the victim’s home if he was
accompanied by law enforcement personnel.
Later in the day on November 14, 2019, the victim reported to police
that she had received several telephone calls from Appellant’s telephone
number, including one in which she heard Appellant state that he would break
the window of her home if she did not let him in to retrieve his property.
Appellant was taken into custody on that date and charged with contempt for
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violating the PFA order. After posting bail of $500, Appellant was released
pending further proceedings on the second contempt violation.
On November 19, 2019, the victim reported to police that Appellant was
in the back yard of her house. When police arrived, they discovered Appellant
in front of her property, and Appellant stated that he wanted to retrieve
property from the victim. Appellant was detained without bail and charged
with his third contempt offense.
A hearing was held on the second and third contempt offenses on
November 27, 2019. Regarding the second violation on November 14, 2019,
Officer Gregory Perez of the Wilkes-Barre City Police Department testified that
Appellant admitted he called the victim because he wanted to retrieve his
belongings. N.T., 11/27/19, at 9. Appellant testified that he “may have
pocket dialed” the victim, but once he realized she had picked up they had a
conversation regarding various topics including retrieving his belongings. Id.
at 10-12.
Regarding the third violation on November 19, 2019, the victim testified
that Appellant called her at 8:00 am asking to retrieve his things and that he
then appeared in her back yard. Id. at 14. The victim stated that Appellant
also contacted her on that date on various forms of social media and through
text messages. Id. at 15. Officer Daniel Duffy testified that he intercepted
Appellant in front of the victim’s property and that he explained that he was
there to retrieve his belongings. Id. at 16-17. Appellant admitted that he
had contact with the victim on the date of the violation, but he stated that he
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was just walking on the sidewalk in front of the victim’s property on the way
somewhere else when the police intercepted him. Id. at 20-21.
At the conclusion of the hearing, the trial court found Appellant guilty of
two counts of indirect criminal contempt and sentenced him to consecutive
sentences of six months’ confinement on each count for an aggregate
sentence of twelve months, with credit for time served. Appellant did not
object to the sentence at the hearing. Furthermore, Appellant did not file a
post-sentence motion. On December 27, 2019, Appellant filed a counseled
notice of appeal. Appellant’s current appellate counsel, Matthew P. Kelly,
Esquire, was thereafter appointed to represent him.4
Before this Court can consider the merits of this appeal, we must first
determine whether Attorney Kelly has satisfied the requirements for
withdrawal. Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super.
2018) (en banc). To withdraw, counsel must (1) petition the court for leave
to withdraw stating that he has made a conscientious examination of the
record and has determined that the appeal would be frivolous; (2) provide a
copy of the Anders brief to the appellant; and (3) advise the appellant of his
right to retain new counsel or proceed pro se and to raise any additional points
that he deems worthy of the court’s attention. Id. at 1195-96.
In the Anders brief, counsel must:
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4Appellant filed his statement of errors complained of on appeal on January
24, 2020. The trial court entered its opinion on June 22, 2020.
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(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel has
satisfied the above requirements, it is then this Court’s duty to conduct our
own review of proceedings before the trial court and render an independent
judgment as to whether the appeal is wholly frivolous. Yorgey, 188 A.3d at
1196.
In this case, Attorney Kelly filed a petition to withdraw, wherein he
asserts that he has made a conscientious review of the record and determined
that Appellant’s appeal from the trial court’s November 27, 2019 judgment of
sentence is frivolous. Counsel also submitted to this Court a copy of an
September 3, 2020 letter in which he provided Appellant with a copy of his
petition and Anders brief and advised him of him right either to retain new
counsel or proceed pro se on appeal and raise any points he deems worthy of
this Court’s attention.5 Appellant did not file a pro se response nor did
substitute counsel enter an appearance on his behalf in this Court.
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5 Attorney Kelly did not initially file a copy of his letter to Appellant advising
him of his right to retain new counsel or proceed pro se, but he subsequently
submitted a copy of this letter to this Court in response to our September 15,
2020 order.
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In the Anders brief, Attorney Kelly summarized the procedural and
factual background of this case, explained with citations to relevant authority
that the discretionary sentencing issue Appellant sought to raise was frivolous,
and stated that his review of the record revealed no other non-frivolous
appellate issues. We therefore conclude that counsel has complied with the
requirements of Anders and Santiago and proceed to a review of the merits
of this appeal.
Having determined that Attorney Kelly complied with the procedural
requirements for withdrawal, we must first review the issue raised by counsel
in the Anders brief to determine whether it is in fact frivolous. Yorgey, 188
A.3d at 1197. If we find that all of those issues are frivolous, this Court
conducts an examination of the record to discern if there are any other issues
of arguable merit overlooked by counsel. Id. at 1196-97.
In this appeal, counsel focuses his analysis on the issue which Appellant
sought to argue on appeal, namely whether the trial court abused its discretion
in sentencing Appellant to consecutive 6-month sentences of confinement for
the indirect criminal contempt violations, resulting in a 12-month aggregate
sentence. As counsel recognizes, this issue is a challenge to the discretionary
aspect of sentencing and therefore not appealable as of right.
Commonwealth v. Radecki, 180 A.3d 441, 467 (Pa. Super. 2018). A
challenge to the discretionary aspect of sentencing is not appealable as of
right. Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa. Super. 2019)
(en banc).
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Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code[.]
Id. (citation omitted). A substantial question is present where the appellant
advances an argument that the sentence was inconsistent with a specific
provision of the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process. Id.Here, Appellant complied with the first and third requirements to invoke
our jurisdiction by filing a timely notice of appeal and including a Pa.R.A.P.
2119(f) statement in his appellate brief. However, as appellate counsel
observes in his Anders brief, Appellant did not preserve a discretionary
sentencing challenge by either objecting at the November 27, 2019 hearing
or in a motion to modify the sentence. “To properly preserve an issue
challenging the discretionary aspects of sentencing, a defendant must object
and request a remedy at sentencing, or raise the challenge in a post-sentence
motion.” Commonwealth v. Clary, 226 A.3d 571, 579 (Pa. Super. 2020).
Failure to preserve a discretionary sentencing issue before the trial court
results in waiver. Commonwealth v. Smith, 206 A.3d 551, 567 (Pa. Super.
2019). An appellant cannot cure this waiver by including the challenge to the
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discretionary aspects of sentencing in his Pa.R.A.P. 1925(b) statement.
Commonwealth v. Padilla-Vargas, 204 A.3d 971, 976 (Pa. Super. 2019).
In cases where appellate counsel petitions for withdrawal and files an
Anders brief, this Court has excused procedural errors in the presentation of
a discretionary sentencing issue as a result of our obligation to independently
review the record and determine whether any non-frivolous issue is present.
See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(addressing discretionary sentencing claim despite appellate counsel’s
deficient Pa.R.A.P. 2119(f) statement in Anders brief); Commonwealth v.
Hernandez, 783 A.2d 784, 786-87 (Pa. Super. 2001) (reviewing
discretionary sentencing issue despite counsel’s failure to file a court-ordered
Pa.R.A.P. 1925(b) statement where appellate counsel had filed a petition to
withdraw and Anders required independent review of the record). However,
this Court has held that the failure to preserve a discretionary sentencing claim
with the trial court prior to appeal must result in waiver even when appellate
counsel petitions for withdrawal. See Commonwelth v. Cartrette, 83 A.3d
1030, 1042-43 (Pa. Super. 2013) (en banc); Commonwealth v. Kalichak,
943 A.2d 285, 291 (Pa. Super. 2008); see also Commonwealth v. Cox, 231
A.3d 1011, 1016 (Pa. Super. 2020) (stating that the Hernandez and Lilley
decisions do not permit “this Court to address issues that were not properly
preserved in the trial court” and “the mere filing of an Anders brief and
petition to withdraw will not serve to resuscitate claims that were already
waived upon the filing of the notice of appeal”). Accordingly, the claim that
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Appellant’s sentence was excessive based on the imposition of consecutive
sentences is waived.
Based on the foregoing, we agree with appellate counsel that the issue
Appellant sought to raise on appeal was frivolous. In addition, we have
reviewed the certified record and have discovered no additional non-frivolous
issues.6 Therefore, we grant appellate counsel’s petition to withdraw and
affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/19/2021
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6 We observe that upon conviction for indirect criminal contempt under the
PFA Act, the sentencing court may impose a penalty of up to six months’
imprisonment for each offense. 23 Pa.C.S. § 6114(b)(1)(i)(A). Therefore,
Appellant’s aggregate sentence did not exceed the statutory maximum.
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