Com. v. Terry, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
KENNETH A. TERRY :
:
Appellant : No. 1323 MDA 2016
Appeal from the Judgment of Sentence June 28, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001258-2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 28, 2017
Appellant, Kenneth A. Terry, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas, following his guilty
plea to one count each of retail theft, criminal conspiracy, possession of an
instrument of crime (“PIC”), possession of a controlled substance, and
possession of drug paraphernalia.1 We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows.
On February 18, 2016, Joseph Smith, the manager of a Tommy Hilfiger
Outlet Store at the Tanger Outlets in Hershey, PA, called the police to report
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1
18 Pa.C.S.A. §§ 3929(a)(1), 903(c), 907(a), and 35 P.S. §§ 780-113(a)(1)
and (a)(32), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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that a man and a woman, later identified as Appellant and Brandy Spells,
were acting suspiciously in his store. Mr. Smith told the police that these
two persons were taking too many items of clothing into fitting rooms and
would get angry when told they could only bring a limited number of items
into the fitting rooms at one time. Mr. Smith also said it appeared as though
Ms. Spells was attempting to distract Mr. Smith and other store employees
from Appellant’s activities. At one point, Mr. Smith and another employee
observed Appellant placing store merchandise under his coat. Soon after,
Ms. Spells approached the register to check out with a few items, and
Appellant walked out of the store. The security devices on the clothing
under Appellant’s jacket triggered the store alarm, and Mr. Smith asked
Appellant to step back inside the store with the merchandise.
Instead, Appellant continued out the door to the parking lot and began
to place the store merchandise inside a vehicle. Police officers then
approached Appellant and informed him that he was being detained for retail
theft. The officers handcuffed Appellant, patted him down, and found a
metal “V” shaped pry bar, frequently used to remove store security devices
from clothing, and a pair of scissors.
Officers located the stolen merchandise in the vehicle: a polo shirt,
jeans, a V-neck t-shirt, and a jacket. Mr. Smith confirmed the items were
taken from the store and worth $159.67 total. The police arrested Appellant
for retail theft and took him to the Derry Township Police Department. At
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the police department, Appellant requested the police to ask Ms. Spells to
locate Appellant’s black bag, which he said contained his gold teeth. An
officer retrieved the black bag with Ms. Spells and presented it to Appellant,
asking if it belonged to him. Appellant confirmed it was his bag. The police
removed a plastic bag from the bag, which contained crack cocaine.
On June 28, 2016, Appellant pled guilty to retail theft, conspiracy to
commit retail theft, PIC, possession of a controlled substance, and
possession of drug paraphernalia. For retail theft (Count 1), the court
sentenced Appellant to sixteen (16) to thirty-six (36) months’ incarceration
in state prison, with credit for time served from February 19, 2016 to March
3, 2016, and a fine of $300.00, plus court costs. For conspiracy, the court
sentenced Appellant to sixteen (16) to thirty-six (36) months’ incarceration,
concurrent with Count 1, and a fine of $100.00, plus court costs. For PIC,
the court sentenced Appellant to sixteen (16) to thirty-six (36) months’
incarceration, also concurrent with Count 1, and a fine of $100.00, plus
court costs. For possession of a controlled substance, the court sentenced
Appellant to twelve (12) months’ state probation, also concurrent with Count
1, and a fine of $25.00, plus court costs. For possession of drug
paraphernalia, the court sentenced Appellant to twelve (12) months’ state
probation, also concurrent with Count 1, and a fine of $25.00, plus court
costs. The aggregate sentence was sixteen (16) to thirty-six (36) months’
incarceration with concurrent probation. In delivering this sentence, the trial
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court noted Appellant was facing an aggregate sentence of up to 23 years.
Additionally, the trial court remarked that Appellant had a prior record score
of five and had been given multiple opportunities over the last several years
but continued to show a disregard for the law.
On July 7, 2016, Appellant timely filed a post-sentence motion to
modify his sentence, which the court denied on July 11, 2016. Appellant
filed a timely notice of appeal on August 9, 2016. On August 10, 2016, the
court ordered Appellant to file a Rule 1925(b) statement; Appellant timely
complied on August 31, 2016. On November 21, 2016, Appellant’s counsel
filed an Anders brief and application to withdraw representation.
As a preliminary matter, counsel seeks to withdraw her representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349(2009). Anders and Santiago require counsel to: 1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; 2) file a
brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
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2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to
confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903
A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that
counsel’s brief provide an argument of any sort, let
alone the type of argument that counsel develops in
a merits brief. To repeat, what the brief must
provide under Anders are references to anything in
the record that might arguably support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record
and counsel’s references to anything in the record
that arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-
appointed counsel’s petition to withdraw, counsel
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
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2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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on point that have led to the conclusion that the
appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, counsel filed a petition to withdraw. The petition states
counsel conducted a conscientious review of the record and determined the
appeal is wholly frivolous. Counsel also supplied Appellant with a copy of
the brief and a letter explaining Appellant’s right to retain new counsel or to
proceed pro se to raise any additional issues Appellant deems worthy of this
Court’s attention. (See Letter to Appellant, dated 11/21/16, attached as
Exhibit B to Appellant’s Brief.) In the Anders brief, counsel provides a
summary of the relevant facts and procedural history of the case. Counsel’s
argument refers to relevant law that might arguably support Appellant’s
issue. Counsel further states the reasons for her conclusion that the appeal
is wholly frivolous. Therefore, counsel has substantially complied with the
requirements of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
WHETHER THE TRIAL COURT ERRED IN IMPOSING A
SIXTEEN TO THIRTY-SIX MONTH INCARCERATION
SENTENCE, WHERE THE SENTENCE IS EXCESSIVE AND
UNREASONABLE?
(Anders Brief at 5).
Essentially, Appellant argues the sentence imposed is manifestly
excessive, constitutes too severe a sentence, and is unreasonable. As
presented, Appellant’s claim implicates the discretionary aspects of his
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sentence.3 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)
(stating claim that sentence is manifestly excessive challenges discretionary
aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspects of sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary
aspects of sentence are generally waived if they are not raised at the
sentencing hearing or raised in a motion to modify the sentence imposed at
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3
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
guilty plea included no negotiated sentence.
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that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,
112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),
cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009). The
concise statement must indicate “where the sentence falls in relation to the
sentencing guidelines and what particular provision of the code it violates.”
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (quoting
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000), appeal
denied, 563 Pa. 672, 759 A.2d 920 (2000)).
What constitutes a substantial question must be evaluated on a case-
by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007).
A substantial question exists “only when the appellant advances a colorable
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argument that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.”
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal
citation omitted). In other words, an appellant’s Rule 2119(f) statement
must sufficiently articulate the manner in which the sentence violates either
a specific provision of the sentencing scheme set forth in the Sentencing
Code or a particular fundamental norm underlying the sentencing process.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).
Our standard of review of a challenge to the discretionary aspects of
sentencing is as follows:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and 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.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)). On appeal, this
Court will not disturb the judgment of the sentencing court absent an abuse
of discretion. Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006).
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused
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its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to
determine the proper penalty for a particular offense based
upon an evaluation of the individual circumstances before
it. Simply stated, the sentencing court sentences flesh-
and-blood defendants and the nuances of sentencing
decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing
court enjoys an institutional advantage to appellate review,
bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed. Even with
the advent of the sentencing guidelines, the power of
sentencing is a function to be performed by the sentencing
court. Thus, rather than cabin the exercise of a sentencing
court’s discretion, the guidelines merely inform the
sentencing decision.
* * *
[W]e reaffirm that the guidelines have no binding effect,
create no presumption in sentencing, and do not
predominate over other sentencing factors—they are
advisory guideposts that are valuable, may provide an
essential starting point, and that must be respected and
considered; they recommend, however, rather than
require a particular sentence. …
Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65
(2007) (internal quotation marks, footnotes, and citations omitted).
“Generally, Pennsylvania law ‘affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
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imposed at the same time or to sentences already imposed. Any challenge
to the exercise of this discretion ordinarily does not raise a substantial
question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
2006)). “[T]he court shall make as part of the record, and disclose in open
court at the time of sentencing, a statement of the reason or reasons for the
sentence imposed.” 42 Pa.C.S.A. § 9721(b). Nevertheless, “[a] sentencing
court need not undertake a lengthy discourse for its reasons for imposing a
sentence or specifically reference the statute[s] in question….”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal
denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record as a whole
must reflect the sentencing court’s consideration of the facts of the case and
the defendant’s character. Id.In the instant case, Appellant preserved his challenge to the
discretionary aspects of sentencing in his post-sentence motion, his Rule
1925(b) statement, and his Rule 2119(f) statement. To the extent,
however, Appellant poses a generic claim that the court gave him an
excessive and unreasonable sentence, the claim does not raise a substantial
question as to the discretionary aspects of sentencing. Commonwealth v.
Trippett, 932 A.2d 188 (Pa.Super. 2007).
Moreover, the court stated its reasons for the sentence imposed as
follows:
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[Appellant] alleges that his sentence of 16 to 36 months of
incarceration is excessive and unreasonable. This
sentence is not excessive [or] unreasonable. All of
[Appellant’s] sentences are within the standard range of
the sentencing guidelines. …
Nor is the sentence manifestly excessive. Here,
[Appellant] was facing an aggregate sentence of up to 23
years as indicated in the Guilty Plea Colloquy that
[Appellant] signed. [Appellant] was also asked if he
understood the nature of the charges brought against him
and he answered “yes.” [Appellant] was further asked if
he understood the maximum possible penalty listed and
whether it was his signature on the guilty plea colloquy.
[Appellant] also has a prior record score of five (5).
[Appellant] has been given multiple opportunities over the
last several years but has shown a complete disregard for
the law and continues to commit new crimes.
For the foregoing reasons, it is believed that the judgment
of sentence was properly entered.
(Trial Court Opinion, filed September 8, 2016, at 2-3). Further, the court
imposed the standard range sentences for Appellant’s offenses to run
concurrently and gave Appellant credit for time served as to all convictions.
We also note Appellant’s new offenses constituted probation violations. So
under these circumstances, Appellant’s bare challenge to the discretionary
aspects of sentence fails. Following our independent review of the record,
we conclude the appeal is frivolous. See Palm, supra. Accordingly, we
affirm and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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