Com. v. Truitt, 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES LEE TRUITT, : No. 1773 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered March 28, 2018,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0002601-2016
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 08, 2020
James Lee Truitt appeals1 from the March 28, 2018 judgment of
sentence imposed after he pled guilty to one count of aggravated assault.2
Contemporaneously with this appeal, counsel has requested leave to withdraw
in accordance with Anders v. California, 386 U.S. 738 (1967),
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and their
progeny. After careful review, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows: On May 18, 2016, appellant struck the
1The Commonwealth has indicated that it will not being filing a brief in this
matter.
2 18 Pa.C.S.A. § 2702(a)(1).
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female victim, shoved her on a bed, and choked her until she began to lose
consciousness. (Notes of testimony, 6/14/17 at 9.) Appellant suffers from
post-traumatic stress disorder (“PTSD”). (Id.) On June 14, 2017, appellant
entered an open guilty plea to one count of aggravated assault in connection
with this incident and was admitted into the Mental Health Treatment Court
that same day. (Id. at 2, 4-8, 20.) Appellant was ultimately discharged from
the treatment court for violating the terms of the program. (Notes of
testimony, 1/3/18 at 3.) On March 28, 2018, the trial court sentenced
appellant to a term of three to six years’ imprisonment, with credit for time
served.
On April 5, 2018, appellant filed a timely post-sentence motion to modify
his sentence, which the trial court denied on July 24, 2018. Appellant did not
seek direct appellate review of his judgment of sentence. On March 21, 2019,
appellant filed a timely pro se petition pursuant to the Post Conviction Relief
Act (“PCRA”).3 The PCRA court appointed counsel, and counsel filed an
amended PCRA petition on June 24, 2019. On September 24, 2019, the PCRA
court granted appellant’s PCRA petition and reinstated his rights to file a direct
appeal nunc pro tunc.
Appellant filed a timely notice of appeal on October 24, 2019. On
November 19, 2019, the trial court subsequently ordered appellant to file a
concise statement of errors complained of on appeal, in accordance with
3 42 Pa.C.S.A. §§ 9541-9546.
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Pa.R.A.P. 1925(b). On December 9, 2019, appellant’s then-counsel,
Randall L. Miller, Esq., filed a statement pursuant to Rule 1925(c)(4), wherein
he indicated that he intended to request permission to withdraw, as he
determined that there were no non-frivolous issues to raise on appellant’s
behalf.
Thereafter, appellant’s present counsel, Daniel C. Bardo, Esq.
(hereinafter, “Attorney Bardo”), was appointed to represent appellant. On
March 19, 2020, Attorney Bardo appeared to file an Anders brief. (See
appellant’s brief, 3/19/20 at 13 (concluding that “any appellate issues are
frivolous”).) However, Attorney Bardo failed to file a contemporaneous
petition to withdraw as counsel and failed to file the required notice letter
addressed to appellant explaining appellant’s rights under Anders. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc); Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super.
2007), citing Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super.
2005).
On August 25, 2020, we remanded this case for Attorney Bardo to either
comply with the dictates of Anders and its progeny, or to file an advocate’s
brief on the merits. As noted above, Attorney Bardo filed an application to
withdraw his appearance, accompanied by an Anders brief on September 24,
2020. Our subsequent review of Attorney Bardo’s application for leave to
withdraw his appearance, supporting documentation, and Anders brief
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reveals that the letter sent to appellant failed to advise him that he could raise
any additional points worthy of this court’s attention. See Woods, 939 A.2d
at 898. Accordingly, on October 19, 2020, we denied Attorney Bardo’s
application to withdraw, remanded this matter, and directed Attorney Bardo
to send appellant a letter, accompanied by the Anders brief and his
application for leave to withdraw, that complies with the directives of Woods
and Millisock.
On October 23, 2020, Attorney Bardo complied with this court’s directive
and filed a “Renewed Application for Leave to Withdraw,” accompanied by new
correspondence that he sent to appellant, properly advising him, inter alia,
that he may raise any additional points worthy of this court’s attention.
Appellant did not respond to Attorney Bardo’s renewed application to
withdraw.
“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 file a brief that meets 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:
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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.
Id. (citation omitted).
Pursuant to Millisock and its progeny, “[c]ounsel also must provide a
copy of the Anders brief to his client.” Commonwealth v. Orellana, 86
A.3d 877, 880 (Pa.Super. 2014) (internal quotation marks and citation
omitted). The brief must be accompanied by a letter that advises the client
of the option to “(1) retain new counsel to pursue the appeal; (2) proceed
pro se on appeal; or (3) raise any points that the appellant deems worthy of
the court[’]s attention in addition to the points raised by counsel in the Anders
brief.” Id. “Once counsel has satisfied the above requirements, it is then this
[c]ourt’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.” Goodwin, 928 A.2d at 291 (citation and internal quotation marks
omitted).
Instantly, we conclude that Attorney Bardo has satisfied the technical
requirements of Anders and Santiago. Attorney Bardo has identified the
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pertinent factual and procedural history and made citation to the record.
Attorney Bardo has also raised discretionary sentencing claims that could
arguably support an appeal, but ultimately concludes that these claims are
wholly frivolous. Attorney Bardo has also sent a letter to appellant, which now
fully satisfies the notice requirements of Millisock. Accordingly, we proceed
to conduct an independent review of the record to determine whether this
appeal is wholly frivolous.
The crux of appellant’s argument on appeal is that his standard range
sentence was manifestly excessive and the sentencing court failed to properly
consider his diagnosis for PTSD in fashioning this sentence. (Anders brief at
8-13.)
This court has explained the following in considering an appeal
challenging the discretionary aspects of a sentence where the appellant has
entered an open guilty plea:
Generally, upon the entry of a guilty plea, a defendant
waives all claims and defenses other than those
sounding in the jurisdiction of the court, the validity
of the plea, and what has been termed the “legality”
of the sentence imposed. However, where a
defendant pleads guilty without any agreement as to
sentence, (i.e. an open plea), the defendant retains
the right to petition this Court for allowance of appeal
with respect to the discretionary aspects of
sentencing.
Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa.Super. 2017) (internal
citations omitted), appeal denied, 181 A.3d 1078 (Pa. 2018).
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Here, appellant entered an open guilty plea to one count of aggravated
assault on June 14, 2017. (Notes of testimony, 6/14/17 at 5.) Accordingly,
we find that appellant has not waived his claim challenging the discretionary
aspects of sentencing.
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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation
omitted), appeal denied, 117 A.3d 297 (Pa. 2015).
Where an appellant challenges the discretionary aspects of his sentence,
as is the case here, the right to appellate review is not absolute. See
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Rather, an
appellant challenging the discretionary aspects of his sentence must invoke
this court’s jurisdiction by satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
Appellant preserved his issue; (3) whether Appellant’s
brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the sentencing
code.
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Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Instantly, the record reveals that appellant filed a timely notice of appeal
and preserved his claim in his post-sentence motion to modify his sentence.
Appellant has failed to include a statement in his brief that comports with the
requirements of Pa.R.A.P. 2119(f), but the Commonwealth has not objected
to this omission. “[W]hen the appellant has not included a Rule 2119(f)
statement and the [Commonwealth] has not objected, this [c]ourt may ignore
the omission and determine if there is a substantial question that the sentence
imposed was not appropriate.” Commonwealth v. Kiesel, 854 A.2d 530,
533 (Pa.Super. 2004) (citation omitted). Accordingly, we must determine
whether appellant has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538(Pa. 2013). “A substantial question exists only when appellant advances a
colorable 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. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)
(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).
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This court has recognized that a “claim that the sentence is manifestly
excessive, inflicting too severe a punishment, . . . present[s] a substantial
question.” Commonwealth v. Hicks, 151 A.3d 216, 227 (Pa.Super. 2016)
(citations omitted), appeal denied, 168 A.3d 1287 (Pa. 2017). 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.” Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa.Super. 2014 (citation omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
Accordingly, we may review the merits of appellant’s claim.
Contrary to appellant’s contention, our review of the record in this
matter reveals that the sentencing court considered and weighed numerous
factors in fashioning appellant’s standard range sentence, including the fact
that he suffered from PTSD. At the March 28, 2018 sentencing hearing, the
sentencing court stated as follows:
I am not saying that [appellant] doesn’t have issues
he’s struggling with; however, [appellant] has been,
despite attempts at counseling and treatment, unable
to separate his own personal victimization from the
accountability for his actions and, therefore, fails to
take any accountability for those actions, excuses
them by the fact that he has issues that have caused
him trauma in the past. . . .
....
. . . . But the bottom line is, [appellant], while you
need help, you are an extremely violent, dangerous
individual, and it is up to you to choose whether you
will comply with help, regardless of the setting. You
chose not to comply with it within the setting of Mental
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Health Court. Your violations are such that they were
willful, they were knowing, they were childish, and
they continued to show disregard, disrespect, and
resentment of authority and structure. . . . Having
the benefit of observing your demeanor in the
program, the lack of accountability you’ve taken for
any of the violations that have occurred or, I should
say in fairness, in some case, limited accountability
for the violations that have occurred, I believe that
the state programs available to you will be able to
provide you with any level of psychiatric treatment
that you require, whether it be for post-traumatic
stress or anything else.
You say you need help, you need therapy, you need
treatment, you need PTSD classes. You didn’t seem
to run up at the VA and get into a PTSD class while
you were here.
Notes of testimony, 3/28/18 at 14-15.
Additionally, we note that the sentencing court was in possession of a
presentence investigation (“PSI”) report in this matter and indicated that it
reviewed it. (See id. at 3.) Where the trial court has the benefit of a PSI
report, “we shall . . . presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citation omitted), appeal
denied, 95 A.3d 275 (Pa. 2014). Accordingly, we find that appellant’s
challenge to the discretionary aspects of his sentence must fail.
Based on the forgoing, we agree with Attorney Bardo that this appeal is
wholly frivolous. After our own independent review of the record, we further
discern no additional issues of arguable merit. Accordingly, we grant
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Attorney Bardo’s petition to withdraw and affirm the March 28, 2018 judgment
of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2020
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