Com. v. Corey, S.

J. S34034/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SAMUEL LEE COREY, : No. 141 MDA 2020
:
Appellant :
Appeal from the Judgment of Sentence Entered September 5, 2019,
in the Court of Common Pleas of Bradford County
Criminal Division at No. CP-08-CR-0000387-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SAMUEL LEE COREY, : No. 142 MDA 2020
:
Appellant :
Appeal from the Judgment of Sentence Entered September 5, 2019,
in the Court of Common Pleas of Bradford County
Criminal Division at No. CP-08-CR-0000548-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 08, 2020
Samuel Lee Corey appeals from the September 5, 2019 judgments of
sentence entered by the Court of Common Pleas of Bradford County following
his guilty plea to one count each of homicide by vehicle while driving under
the influence (“DUI”), DUI: controlled substance – combination of alcohol and
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drugs (second offense), and DUI: controlled substance – impaired ability
(third offense).1 Patrick L. Beirne, Esq., filed an application to withdraw his
appearance on May 11, 2020, alleging that the appeal is frivolous,
accompanied by an Anders brief.2 After careful review, we grant
Attorney Beirne’s application to withdraw and affirm appellant’s judgments of
sentence.
The relevant factual and procedural history, as gleaned from the record,
are as follows. On February 4, 2019, appellant was involved in an automobile
accident that resulted in the deaths of Cierra Kirkner and her unborn child.
Following the accident, the Commonwealth charged appellant with, inter alia,
homicide by vehicle while DUI and DUI: controlled substances – combination
of alcohol and drugs (second offense) at Docket No. CP-08-CR-0000387-2019
(“Docket No. 387”). While these charges were pending, appellant was
charged with, inter alia, DUI: controlled substance – impaired ability (third
offense) at Docket No. CP-08-CR-0000548-2019 (“Docket No. 548”),
stemming from an incident that took place on June 10, 2019.
On July 23, 2019, appellant entered a guilty plea at Docket No. 387 to
homicide by vehicle while DUI and DUI: controlled substances – combination
1 75 Pa.C.S.A. §§ 3735(a)(1)(ii), 3802(d)(3), and 3802(d)(2), respectively.
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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of alcohol and drugs (second offense).3 On September 5, 2019, appellant
entered a guilty plea at Docket No. 548 to DUI: controlled substance –
impaired ability (third offense). That same day, the trial court imposed an
aggregate sentence, at both docket numbers, of 8 years, 9 months to
25 years’ imprisonment. Appellant filed timely post-sentence motions on
September 13, 2019, which the trial court denied on December 20, 2019.
Appellant filed timely notices of appeal on January 15 and 17, 2020, in
compliance with our supreme court’s directive in Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), and its progeny. The trial court ordered appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and appellant timely complied. On March 4, 2020, the trial
court filed statements in lieu of an opinion pursuant to Pa.R.A.P. 1925(a) at
each trial court docket number. On May 11, 2020, Attorney Beirne filed an
Anders brief and accompanying application to withdraw his appearance. On
September 23, 2020,4 this court entered a judgment order remanding the
case because it was “unclear whether counsel enclosed copies of the Anders
brief and accompanying petition to withdraw as counsel with his undated
letter to appellant, as required.” (Judgment order, 9/23/20 at 4; see also
Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super. 2007), citing
3Appellant also entered a guilty plea to aggravated assault of an unborn child.
See 18 Pa.C.S.A. § 2606(a). The plea to this count was withdrawn on
September 5, 2019. (Notes of testimony, 9/5/19 at 10.)
4 The judgment order was filed October 6, 2020.
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Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super. 2005).)
Moreover, counsel only filed a petition to withdraw at Docket No. 387. (See
judgment order, 9/23/20 at 4.) Counsel was directed to “comply with the
dictates of Anders and its progeny.” (Id.)
The appeals in these cases were consolidated by this court on October 3,
2020. On October 27, 2020, counsel filed a petition to withdraw at both
Docket Nos. 387 and 548, attaching to each petition a letter dated October 26,
2020, properly advising appellant of his rights as required by Millisock. Each
petition to withdraw also averred that counsel:
sent to [a]ppellant via first class mail at his last known
address, a copy of the instant petition and a copy of
the brief filed in this case. In addition, a letter was
sent explaining [a]ppellant’s right to forward any
additional argument and/or to retain new counsel to
represent him.
Petition to withdraw, 10/27/20 at unnumbered 2 ¶ 5. Counsel having
complied with our order, we proceed to address counsel’s petition to withdraw.
A request by appointed counsel to withdraw pursuant to Anders and
Santiago gives rise to certain requirements and obligations, for both
appointed counsel and this court. See Commonwealth v. Flowers, 113
A.3d 1246, 1248 (Pa.Super. 2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods, 939
A.2d 896, 898 (Pa.Super. 2007). This
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[c]ourt has summarized these
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 [c]ourt’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise 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
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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.
Id. at 1248. If this [c]ourt determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked the
existence of potentially non-frivolous issues.” Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Beirne’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of the
foregoing requirements. We note that counsel has also furnished a copy of
the Anders brief to appellant; advised him of his right to retain new counsel,
proceed pro se, or bring any issues he deems pertinent to this court’s
attention; and filed with this court a copy of the letter sent to appellant as
required under Millisock. See also Commonwealth v. Daniels, 999 A.2d
590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set forth
the new requirements for an Anders brief, . . . the holding did not abrogate
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the notice requirements set forth in Millisock that remain binding legal
precedent.”). Appellant did not respond to Attorney Beirne’s Anders brief.
As Attorney Beirne has complied with all of the requirements set forth above,
we conclude that counsel has satisfied the procedural requirements of
Anders.
Once counsel has met his obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v.
McClendon, 434 A.2d 1184, 1187 (Pa. 1981). Therefore, we now turn to the
merits of appellant’s appeal.
Attorney Beirne raises the following issue on appellant’s behalf:
Did the trial court abuse its discretion in imposing a
sentence at the top of the aggravated range?
Anders brief at 4.
[T]he proper standard of review when
considering whether to affirm the
sentencing court’s determination is an
abuse of discretion. . . . [A]n abuse of
discretion is more than a mere error of
judgment; thus, a sentencing court will
not have abused 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, our
Court recently offered: An abuse of
discretion may not be found merely
because an appellate court might have
reached a different conclusion, but
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requires a result of manifest
unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of
support 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.
[Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007)].
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, 752 A.2d 910, 912
(Pa.Super. 2000). An appellant challenging the
discretionary aspects of his sentence must invoke this
Court’s jurisdiction by satisfying a four-part test:
[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, [] 909 A.2d 303([Pa.] 2006) (internal citations omitted). Objections
to the discretionary aspects of a sentence are
generally waived if they are not raised at the
sentencing hearing or in a motion to modify the
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sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa.Super. 2003), appeal denied, []
831 A.2d 599 ([Pa.] 2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828
(Pa.Super. 2007). A substantial question exists “only
when the 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. Sierra,
supra at 912-913.
As to what constitutes a substantial question, this
Court does not accept bald assertions of sentencing
errors. Commonwealth v. Malovich, 903 A.2d
1247, 1252 (Pa.Super. 2006). An appellant must
articulate the reasons the sentencing court’s actions
violated the sentencing code. Id.Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements for challenging the discretionary
aspects of his sentence. First, appellant timely filed his notice of appeal
pursuant to Pa.R.A.P. 902 and 903. Second, he properly preserved the issue
in post-sentence motions filed on September 13, 2019. The sentencing court
denied appellant’s motions on December 20, 2019. Third, Attorney Beirne
included a Rule 2119(f) statement in his Anders brief. (Anders brief at 12.)
We must now determine whether appellant has raised a substantial question.
This court has recognized that an allegation of sentencing court error by
imposing an aggravated range sentence raises a substantial question.
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Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa.Super. 2019), citing
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007) (en banc).
Here, appellant alleges that his sentence was “unduly harsh.” (Anders brief
at 15.) Accordingly, we find that a substantial question has been raised, and
we have jurisdiction to consider appellant’s discretionary aspects of sentencing
claim.
As noted above, we review the trial court’s sentencing determination for
an abuse of discretion. See Moury, 992 A.2d at 169. This court has held
that, “When a [sentencing] court imposes an aggravated . . . sentence, it shall
state the reasons on the record . . . .” Commonwealth v. Mrozik, 213 A.3d
273, 278 (Pa.Super. 2019), quoting 204 Pa.Code § 303.13(c).
Here, the record reflects that the trial court provided the following
explanation for imposing an aggravated sentence:
In terms of the offense and the sentence, there is a
mandatory five[-]year sentence of incarceration. As I
said before[,] the range is five to six years. Given the
fact that the law really does not provide for a crime as
to the child, I do believe that if there [were] ever a
circumstance where an aggravated range sentence
was appropriate, this would be it, to in some way take
account for the fact an unborn child’s life was
terminated far too early.
....
Now, with respect to the DUI, that has a twelve to
eighteen[-]month[] standard range. Again, the fact
that this DUI occurred after this accident is grounds
for, again, an aggravated sentence at the high end of
the aggravated range which would be a twenty-one[-
]month sentence or one year and nine months. The
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law requires the seven[-]year maximum, I believe, to
be imposed. And so that second sentence will be []
one year and nine month[s] to seven year[s], such
that the overall aggregate sentence will be eight years
[and] nine months, a maximum sentence of
twenty-five years.
Notes of testimony, 9/5/19 at 31; see also trial court order, 9/5/19 at 1-2.
We, therefore, find that the record supports Attorney Beirne’s
assessment that the appeal is frivolous because the record demonstrates that
the trial court did not abuse its discretion when it imposed appellant’s
sentence.
Moreover, our independent review of the entire record reveals no
additional non-frivolous claims. Accordingly, we grant Attorney Beirne’s
application to withdraw and affirm appellant’s judgments of sentence.
Application to withdraw granted. Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2020
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