Com. v. Santia, D.

J-S05008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANTHONY SANTIA JR. :
:
Appellant : No. 972 WDA 2022
Appeal from the Judgment of Sentence Entered March 7, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002926-2021,
CP-25-CR-0003000-2021, CP-25-CR-0003094-2021,
CP-25-CR-0003095-2021, CP-25-CR-0003096-2021,
CP-25-CR-0003195-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID A. SANTIA, JR. :
:
Appellant : No. 536 WDA 2023
Appeal from the Order Entered March 7, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003000-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID SANTIA, JR. :
:
Appellant : No. 537 WDA 2023
J-S05008-23
Appeal from the Order Entered March 7, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003094-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID A. SANTIA, JR. :
:
Appellant : No. 538 WDA 2023
Appeal from the Order Entered March 7, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003095-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID A. SANTIA, JR. :
:
Appellant : No. 539 WDA 2023
Appeal from the Order Entered March 7, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003096-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID A. SANTIA, JR. :
:
Appellant : No. 540 WDA 2023
-2-
J-S05008-23
Appeal from the Order Entered March 7, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003195-2021
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 22, 2023
Appellant, David Anthony Santia, Jr., appeals nunc pro tunc from the
judgment of sentence of an aggregate term of 31 to 62 months’ incarceration,
imposed after he pled guilty, in six separate cases, to theft by deception, 18
Pa.C.S. § 3922(a)(1), forgery, 18 Pa.C.S. § 4101(a)(1), deceptive or
fraudulent business practices, 18 Pa.C.S. § 4107(a)(2), and identity theft, 18
Pa.C.S. § 4120(a). On appeal, Appellant seeks to challenge the discretionary
aspects of his sentence. Additionally, his counsel, Tina M. Fryling, Esq., has
petitioned to withdraw her representation of Appellant pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.
At this juncture, we need not set forth the facts of Appellant’s underlying
convictions. We only note that he pled guilty to the above-stated offenses
and was sentenced to the aggregate term set forth supra on March 7, 2022.
He did not file any post-sentence motions or a direct appeal. On May 25,
2022, Appellant filed a pro se petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the reinstatement of his direct
appeal rights nunc pro tunc. On August 9, 2022, the court issued an order
-3-
J-S05008-23
granting that petition and stating that Appellant could file notices of appeal,
nunc pro tunc, from his judgment of sentence. The order did not reinstate
Appellant’s right to file post-sentence motions.
On August 22, 2022, Appellant timely filed a single notice of appeal
listing all six docket numbers of his underlying cases, in violation of
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that the filing
of a single notice of appeal from an order involving more than one docket will
no longer be tolerated; such practice violates Pa.R.A.P. 341, which requires
the filing of separate appeals from an order that resolves issues arising on
more than one docket; and the failure to file separate appeals generally
requires the appellate court to quash). However, in Commonwealth v.
Young, 265 A.3d 462 (Pa. 2021), our Supreme Court expressly overruled the
pronouncement in Walker that the failure to file separate notices of appeal in
connection with issues arising at more than one docket necessarily requires
this Court to quash the appeal. The Young Court held that “where a timely
appeal is erroneously filed at only one docket, [Pa.R.A.P.] 902 permits the
appellate court, in its discretion, to allow correction of the error, where
appropriate.” Id. at 477.
Here, Appellant filed a timely notice of appeal.1 Accordingly, although
he failed to comply with Walker, we did not quash his appeal but, instead,
____________________________________________
1 Appellant also timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The court filed
its Rule 1925(a) opinion on October 6, 2022.
-4-
J-S05008-23
we remanded for Appellant to file separate notices of appeal at each of the
docket numbers for his six underlying cases within fourteen days. Appellant
timely complied with our directive, and we have consolidated his six, separate
appeals herein.
Appellant seeks to raise the following sentencing claim for our review:
“Was the sentence in this case manifestly excessive and clearly unreasonable,
particularly in [the imposition of] consecutive[ terms], and not individualized
as required by law?” Appellant’s Brief at 3.
Attorney Fryling concludes that this issue is frivolous, and that Appellant
has no other, non-frivolous claims he could pursue herein. Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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 on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
-5-
J-S05008-23
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.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
In this case, Attorney Fryling’s Anders brief complies with the above-
stated requirements. Namely, she includes a summary of the relevant factual
and procedural history, she refers to portions of the record that could arguably
support Appellant’s claims, and she sets forth her conclusion that Appellant’s
appeal is frivolous. She also explains her reasons for reaching that
determination, and supports her rationale with citations to the record and
pertinent legal authority. Attorney Fryling also states in her petition to
withdraw that she has supplied Appellant with a copy of her Anders brief.
Additionally, she attached a letter directed to Appellant to her petition to
withdraw, in which she informed Appellant of the rights enumerated in
Nischan. Accordingly, counsel has complied with the technical requirements
for withdrawal. We will now independently review the record to determine if
Appellant’s issue is frivolous, and to ascertain if there are any other, non-
frivolous issues he could pursue on appeal.
-6-
J-S05008-23
In assessing Appellant’s sentencing claim, we have reviewed the
certified record, the briefs of the parties, and the applicable law. Additionally,
we have examined the well-reasoned opinion of the Honorable Daniel J.
Brabender, Jr., of the Court of Common Pleas of Erie County. We conclude
that Judge Brabender’s comprehensive opinion accurately disposes of the
issue presented by Appellant. Accordingly, we adopt Judge Brabender’s
opinion as our own and affirm Appellant’s judgment of sentence for the
reasons set forth therein. Additionally, as our review of the record reveals no
other, non-frivolous issues that Appellant could assert herein, we grant
counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2023
-7-
Circulated 05/19/2023 12:02 PM
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OPINION
OPINION
This matter is before the Court on Notices of Appeal filed on August 22, 2022 following
reinstatement of appellate rights on August 9, 2022 from judgments of sentence imposed at each
docket on March 7, 2022. Appellant's Statements of Matters Complained of on Appeal were filed
on September
September 30, 2022. For the reasons set forth below, the judgments of sentence should be
affirmed.
BACKGROUND
On May 25, 2022, Petitioner filed a pro se Petition for Post-Conviction Collateral Relief.
essentially seeking reinstatement of direct appeal rights nunc pro tunc. On August 9, 2022, the
Court granted the request as to these dockets and appointed counsel to perfect the appeals.' On
December 30, 2021 at Docket No.
No, 2926-2021, and on January 27, 2021 at the remaining docket
numbers, Petitioner entered guilty pleas. He was sentenced at all dockets on March 7, 2022. A
summary of the factual basis for the pleas
basis for pleas follows.
follows.
The PCRA was also filed at
'The at Docket No. 842-2022. On August 8, 2022, thehe Court dismissed the
the PCR
A
PCRA as premature
sentence at No, 842-2022 when the
was no conviction or final judgment of sentence
because there was the PCRA was filed.
Il
Docket No. 2926-2021
On December 30, 2021, Appellant pied guilty as charged to Theft by Deception at No.
On
for the plea is that on or
2926-2021. Te factual basis for or about May Erie, Pennsylvania,
May 27, 2021 in Erie,
sum of $2,585.00
Appellant accepted the sum $2,585.00 from aa victim t.o
to perform certain home improvement
the job(s) and he did not return funds for the work not performed
work. Appellant did not complete the
or finished. At the plea hearing, Appellant executed aa Statement of Understanding of Rights and
he executed the reverse side of the Criminal Information originally filed on December 15, 2021.
Docket No. 3000-2021
guilty to Forgery' at No. 3000-2021. The factual
On January 27, 2022, Appellant pled guilty
is that on June 14, 2021 in Erie, Pennsylvania, Appellant altered two checks he
basis for the plea is
received from aa victim were written
victim which were written in the amount of $100.00
$100.00 each by changing the amounts
of the checks to $400.00. At the plea hearing, Appellant executed the Statement of Understanding
Criminal Information filed on January 14, 2022.
of Rights, and the reverse side of the Criminal
Docket No, 3094-2021
or Fraudulent Business
pled guilty to Deceptive or
On January 27, 2022, Appellant also plcd
No, 3094-2021. The factual basis for the conviction is that on June 10, 2021 in Erie,
Practices at No.
$800.00 from the victim to perform home repairs.
Pennsylvania, Appellant received a deposit of $800.00
Appellant never performed any work for the customer and
and failed to return the deposit when
Rights at the plea hearing and he
requested. Appellant executed a Statement of Understanding of Rights
signed the
also signed reverse side
the reverse side of
of the
the Criminal
Criminal Information 14, 2021
Information filed January 14, 2021 in acknowledgment
acknowledgment
of the basis
of the plea.
basis for the
$3922(a)(1).
18 Pa.C.S.A. 53922(a)01).
18Pa.C.S.A.
18P.S. 4101(a)(1).
·18P.S.
'18 P.8.
'18 P.8. $4107(a)02).
$4107(a)02).
2
Docket
Docket No.
No. 3095-2021
3095-2021
On
On January
January 27,
27, 2022,
2022, Appellant
Appellant pled guilty at
pled guilty at No. 3095-2021 to
No. 3095-2021 to another
another incident
incident of
of
Deceptive
Deceptive or
or Fraudulent
Fraudulent Business
Business Practices,
Practices, this
this one having occurred
one having occurred on
on June 16, 2021.
June 16, 2021. On
On that
that
date,
date, Appellant
Appellant received
received from
from the
the victim
victim four
four separate
separate payments
payments totaling approximately $1,432.00
totaling approximately $1,432.00
to perform
to perform home
home repairs.
repairs. Appellant
Appellant failed to perform
failed to perform the
the contracted-for
contracted-for work, yet he
work, yet he retained
retained the
the
funds.
funds. At
At the
the plea
plea hearing,
hearing, Appellant signed the
Appellant signed the Statement
Statement of Understanding of
of Understanding Rights, and
of Rights, and he
he
executed
executed the
the reverse
reverse side
side of the Criminal Information
of the Information filed
filed on
on January 14, 2022.
January 14, 2022.
Docket
Docket No.
No. 3096-2021
3096-2021
On
On January
January 27,
27, 2022,
2022, Appellant
Appellant pied to another
guilty to
pied guilty another count
count of Deceptive or
of Deceptive or Fraudulent
Fraudulent
Business
Business Practices.
Practices. The factual basis
The factual basis for
for the
the plea
plea is
is that
that on May 30,
on May 30, 2021, Appellant, after
2021, Appellant, after
receiving
receiving and
and cashing
cashing aa check
check from victim in
from aa victim in the
the amount
amount of $250.00 to
of $250.00 perform home
to perform home repairs,
repairs,
told
told the
the victim
victim the
the check
check had
had been
been destroyed.
destroyed. Appellant
Appellant had
had the
the victim write out
victim write out to
to him aa
"replacement"
"replacement" check.
check. Appellant
Appellant attempted to cash
attempted to cash the
the second
second check. Appellant failed
check. Appellant failed to
to perform
perform
any
any services
services or
or supply
supply any
any products.
products. Appellant signed the
Appellant signed the Statement
Statement of Understanding of
of Understanding of Rights,
Rights,
and
and executed
executed the
the reverse
reverse side
side of
of the
the Criminal
Criminal Information
Information filed
filed on
on January
January 14,
14, 2022.
2022.
Docket
Docket No.
No. 3195-
3195- 2021
2021
Lastly,
Lastly, on
on January
January 27,
27, 2021,
2021, Appellant
Appellant pled
pled guilty Identity The.°
to Identity
guilty to The.° The
The conviction
conviction arose
arose
from
from Appellant's
Appellant's actions
actions on
on August
August 19,
19, 2021 in providing
2021 in to a
providing to manager at
a manager at Carter
Carter Lumber
Lumber the
the
name,
name, social
social security
security number
number and
and date
date of
of birth of aa third person.
birth of person. At
At the
the plea
plea hearing,
hearing, Appellant
Appellant
signed
signed the
the Statement
Statement of Understanding of
of Understanding Rights, and
of Rights, and he
he executed
executed the
the reverse
reverse side
side of
of the
the Criminal
Criminal
Information
Information filed
filed on
on January 18, 2022.
January 18, 2022.
•18 P.S. $410732)2).
•18P.S. $410732)2).
• 18P.S.
P.S. 4120(a).
4120(a).
3
On
On March
March 7,
7, 2022,
2022, Appellant
Appellant was
was sentenced
sentenced to an aggregate of
an aggregate of 31
31 months (2 years
months (2 years and
and 77
months) to
months) to 62
62 months
months (5
(5 years
years and
and 2
2 months)
months) of
of incarceration,
incarceration, plus restitution, as
plus restitution, as follows.
follows.
Docket No. 2926-2021
Docket No. 2926-2021 -- Count
Count One:
One: Theft
Theft by Deception- 12
by Deception- 12 months to 24
months to 24
months
months of
of incarceration,
incarceration, and
and restitution
restitution of
of $2,000.00;
$2,000.00;
Docket No. 3000-2021
Docket No. 3000-2021 -- Count
Count One:
One: Forgery- months to
Forgery- 66 months to 12
12 months
months of
of
incarceration,
incarceration, and
and restitution of $1,040.00,
restitution of $1,040.00, consecutive
consecutive to No. 2926
to No. 2926 of
of
2021;
2021;
Docket No.
Docket No. 3094-2021
3094-2021 -- Count
Count One:
One: Deceptive
Deceptive oror Fraudulent
Fraudulent Business
Business
Practices -1 months
Practices to 2
months to 2 months
months of incarceration, consecutive
of incarceration, consecutive to No. 3000
to No. 3000
-
- 2021;
2021;
Docket No. 3095-2021
Docket No. 3095-2021 -- Count
Count One: Deceptive or
One: Deceptive or Fraudulent
Fraudulent Business
Business
Practices - 66 months
Practices - months to 12
12 months
months of
of incarceration,
incarceration, and
and restitution
restitution of
of
$1,500.00,
$1,500.00, consecutive to No.
consecutive to No. 3094
3094 --2021;
--2021;
Docket No. 3096-2021
Docket No. 3096-2021 -- Count
Count One: Deceptive or
One: Deceptive or Fraudulent
Fraudulent Business
Business
Practices
Practices --
-- 66 months to 12
months to 12 months
months of
of incarceration, plus restitution
incarceration, plus restitution of
of
$215.00,
$215.00, consecutive
consecutive to No.
No. 3095-2021;
3095-2021; and
Docket No. 3195-
Docket No. 3195- 2021
2021 -- Count
Count One: Identity Theft- 66 months
One: Identity to 12
months to 12 months
months
of
of incarceration,
incarceration, and
and restitution of $524.64,
restitution of $524.64, concurrent
concurrent with No. 3096-2021.
with No. 3096-2021.
Each
Each sentence
sentence was
was at
at the lowest end
the lowest end of
of the
the standard range of
standard range of the
the sentencing
sentencing guidelines.
guidelines.
No
No post
post sentence motion was
sentence motion was filed
filed at
at any
any docket.
docket. At sentencing, no
At sentencing, objection was
no objection was raised
raised
to
to the
the sentence
sentence at
at any
any docket.
docket. Prior
Prior to
to imposition
imposition of
of sentence, plea and
sentence, plea sentencing counsel
and sentencing counsel
informed
informed the Court that
the Court that Appellant
Appellant has
has been
been incarcerated
incarcerated for
for some
some time; Appellant became
time; Appellant became lost
lost in
in
addiction
addiction and
and committed
committed aa series
series of
of crimes he later
crimes he regretted; he
later regretted; he entered
entered aa plea
plea to
to each
each offense;
offense;
through
through counsel,
counsel, Appellant
Appellant apologized
apologized to
to the
the victims;
victims; and
and in
in counsel's
counsel's assessment,
assessment, Appellant
Appellant
appeared
appeared remorseful.
remorseful. See
See Transcript
Transcript of Proceedings, Revocation
of Proceedings, Revocation and
and Sentencing hearing held
Sentencing hearing held
March 7, 2022
March 7, (Tr. Revo.
2022 (Tr. & Sent.
Revo. & Sent. 3/7/22),
3/7/22), p. 5.
At
At allocution,
allocution, Appellant
Appellant cited
cited factors
factors he
he believed
believed contributed
contributed to
to the
the addiction
addiction he
he claimed
claimed
led
led to
to his
his crimes:
crimes: the
the young
young age
age of
of his
his mother
mother at
at her
her death
death and
and manner
manner of the criminal
death; the
of death; criminal and
and
4
addictive history of his father; the father's absence from his life; and the
the death of his stepmother
pp. 6-7. Appellant expressed remorse for his
and reason therefore. See Tr. Revo. & Sent. 3/7/22, pp.
actions; he acknowledged he owes restitution, and stated he desires to "do the right thing." He
also reviewed
also at p.77.. Appell
reviewed his criminal history. Id. at Appellant the
ant requested the opportunity to "break the
son. Id.cycle" for his son.. atp. 8.
Id. at 8. Appellant apologized; he asked if
ifhis
his sentence "could run concurrent
Id. at
with this sentence that I have up state"; and advised he filed for a drug treatment program. Id.
p. 8.
p.8.
On September 9, 2022, the Court issued
Notices ofAppeal were filed on August 22, 2022. On
a Rule 1925(b) Concise Statement ofMatters Complained of on Appeal at each docket and directed
1925b) Statements timely filed and served pursuant to
any issue not properly included in 1925(b)
Pa.R.A.P. 1925(b) would be deemed waived. On
On September 30, 2022, Appellant filed a Statement
of Matters Complained of on Appeal at each docket.
In the 1925(b) Statements, Appellant avers identical sentencing claims:
Petitioner argues that the sentence he received was manifestly excessive and
clearly unreasonable, particularly in its consecutiveness to the other
sentences he received, considering his remorse, his acceptance of
wrongdoing, his intention to repay his victims by working, and his
substance abuse issues that contributed to his wrongdoing.
See Statement of
See Statement Matters Complained
ofMatters of On Appeal
Complained of Appeal at
at each
each docket.
docket.
DISCUSSION
A. Sentencing claims are waived.
The claims present challenges to the discretionary aspects of the sentences. Under the
facts, the claims are waived.
claims are
It is boilerplate law the right to
to appellate review of discretionary aspects of a sentence is
absolute and must
not absolute must be
be considered
considered a petition for permission to appeal. For
For permission to be
be
5
granted, an appellant
granted, an must preserve
appellant must his claims
preserve his claims at
at the
the time of sentencing
time of sentencing or in aa post-sentence
or in post-sentence
motion,
motion, file
file aa timely
timely notice
notice of
of appeal, include in his
appeal, include his brief
brief aa statement
statement of
of reasons
reasons for
for allowance
allowance of
of
appeal pursuant
appeal to Rule
pursuant to Rule of Appellate Rule
of Appellate of Criminal Procedure
Rule of 2119(f), and
Procedure 2119(f), and raise
raise a substantial
substantial
question
question for review. See
for review. See Commonwealth v. Conte,
Commonwealth v. 198 A.3d
Conte, 198 A.3d 1169, 1173 (Pa.
1169, 1173 Super. 2018)(citation
(Pa. Super. 2018)(citation
omitted).
omitted).
As to
to the requirement an
the requirement appellant must
an appellant preserve his
must preserve his claims
claims at
at time
time of sentencing or
of sentencing or in
in aa
post-sentence
post-sentence motion,
motion, again, the issues
again, the issues must
must be raised in aa post-sentence
be raised post-sentence motion
motion or
or by
by presenting
presenting
the
the claim
claim to the trial court
to the court during
during the
the sentencing proceedings. That
sentencing proceedings. That is,
is, an appellant must
an appellant place on
must place on
the record an
the record an objection
objection to
to the
the sentence
sentence and request aa remedy,
and request remedy, or
or file
file aa post-sentence motion. See
post-sentence motion. See
Commonwealth
Commonwealth v.
v. McAfee,
McAfee, 849
849 A.2d
A.2d 270,
270, 275
275 (Pa.
(Pa. Super. 2004). "Absent
Super. 2004). such efforts,
"Absent such efforts, an
an
objection
objection to
to aa discretionary aspect of
discretionary aspect sentence is
of aa sentence waived." Id,,
is waived." citing Commonwealth
Id,, citing Commonwealth •
• Watson,
Watson,
835
835 A.2d
A.2d 786, 791 Pa.
786, 791 Pa. Super. 2003). "This
Super. 2003). "This failure
failure cannot
cannot be cured by
be cured submitting the
by submitting challenge in
the challenge in
aa Rule statement." Commonwealth
1925(b) statement."
Rule 1925(b) • Mcfee,
Commonwealth • Mcfee, 849
849 A.2d
A.2d at
at 275.
275.
Here,
Here, no
no post-sentence
post-sentence motion
motion was
was filed
filed at any docket.
at any docket. Also,
Also, after imposition of
after imposition of sentence,
sentence,
no
no objection
objection to
to aa sentence
sentence based
based upon mitigating factors
upon mitigating factors was
was placed upon the
placed upon the record.
record. See
See Tr.
Revo. & Sent.
Revo. & Sent. 317/22, pp. 11-14.
317/22, pp. 11-14. The challenges in
The challenges in the 1925(b) statements
the 1925(b) statements to
to the
the discretionary
discretionary
aspects
aspects of
of the
the sentences
sentences do
do not
not save
save the
the claims.
claims. Appellant's challenges to
Appellant's challenges to the
the discretionary
discretionary aspects
aspects
of
of the scntence are
the scntence are waived.
waived. The appeals must
The appeals must be dismissed.
dismissed.
B.
B. Sentencing
Sentencing claims
claims are
are meritless.
meritless.
Assuming arguendo
Assuming arguendo the claims as to
the claims to the aspects of
discretionary aspects
the discretionary of sentence
sentence have
have been
been
preserved, the
preserved, the court
court must
must consider
consider whether
whether aa substantial question for
substantial question for review
review has
has been
been raised.
raised.
6
A substantial
A question exists
substantial question only when
exists only appellant advances
an appellant
when an colorable argument
advances aa colorable argument the
the
judge's actions
sentencing judge's
sentencing either inconsistent
were either
actions were specific provision
with a specific
inconsistent with the Sentencing
of the
provision of Sentencing
Code, or
Code, or contrary to the fundamental norms
contrary to the sentencing
underlying the
norms underlying sentencing process.
process. See
See
Commonwealth McNabb, 819 A.2d 54, 56
Commonwealth •v. McNabb, omitted); Commonwealth
56 (Pa. Super. 2003)(citation omitted); Commonwealth
».
v. Clarke, 70 A.3d
Clarke, 70 1281, 1286-87
A.3d 1281, 1286-87 (Pa. Super. 2013)(citation omitted).
Super. 2013)(citation Appellant contends
omitted). Here, Appellant contends
the Court
the failed to
Court failed consider all
to consider required factors
all required in the
factors in the Sentencing when it
Code when
Sentencing Code imposed his
it imposed his low-
low-
end
end standard-range sentences. Failure to
standard-range sentences. consider the
to consider required factors
the required constitutes aa substantial
factors constitutes substantial
question for
question appellate review.
for appellate See Commonwealth
review. See ». Swope,
Commonwealth ». 123 A.3d.
Swope, 123 333, 340
A.3d. 333, 340 (Pa. Super.
Super.
2015)(failure to
2015)(failure consider rehabilitative
to consider needs and
rehabilitative needs mitigating factors
and mitigating raised aa substantial
factors raised substantial question);
question);
see also
see 42 Pa.C.S.
also 42 Pa.C.S. §972l(b).
§972l(b).
A challenge to the
challenge to discretionary aspects
the discretionary of aa sentence is
aspects of reviewed for an abuse
is reviewed ofdiscretion.
abuse of discretion.
Commonwealth v. Moury,
Moury, 992, 162, 169
A.2d 162,
992, A.2d 169 (Pa. Super.
Super. 2010)citation omitted). When
2010)(citation omitted). When
reviewing the
reviewing the discretionary aspects of
discretionary aspects that falls
sentence that
of aa sentence within the
falls within guidelines, the
the sentencing guidelines, the
appellate must affirm unless
court must
appellate court unless "application of the
"application of guidelines would
the guidelines would be clearly unreasonable."
be clcarly unreasonable."
42 Pa.C.S.
Pa.C.S. 59781(c)2).
$9781(c)2).
When
When imposing sentence, the
imposing sentence, court must
the court consider "the
must consider "the protection of the
protection of public, the
the public, the gravity
gravity
of offense as
the offense
of the relates to
it relates
as it the impact on
to the life of
the life
on the and on
victim and
the victim
of the on the community, and
the community, and the
the
rehabilitative needs
rehabilitative needs of the defendant."
of the 42 Pa.C.S.
defendant." 42 §972l(b). "Where
Pa.C.S. 89721(b). court bad
sentencing court
"Where the sentencing had the
the
benefit of aa presentence
benefit of investigation report
presentence investigation report (PSI), [the appellate court] can assume the
can assume the
sentencing court was aware of
sentencing court relevant information
of the relevant the defendant's
information regarding the character and
defendant's character
those considerations
weighted those factors. Further,
statutory factors.
considerations along with mitigating statutory where aa sentence
Further, where sentence
is within
is within the ofthe guidelines, Pennsylvania
standard range of
the standard Pennsylvania law views the sentence as
views the as appropriate
appropriate
7
under
under the Sentencing Code."
the Sentencing Code." Commonwealth
Commonwealth • Hill, 210
• Hill, 210 A.3d
A.3d 1104,
1104, 1117
1117 (Pa.
(Pa. Super.
Super.
2019)(internal quotations &
2019)(internal quotations & citation
citation omitted).
omitted).
The imposition of
The imposition of aa sentence
sentence of
of confinement
confinement to
to run consecutively is
run consecutively clearly within the
is clearly the
authority
authority of
of the
the sentencing
sentencing court.
court. See
See 42
42 Pa.C.S.A.
Pa.C.S.A. $9721(a); Commonwealth ».
$9721(a); Commonwealth ». Pierce,
Pierce, 441
441 A.2d
A.2d
1218
1218 (Pa.
(Pa. Super.
Super. 1982),
1982), Commonwealth
Commonwealth v.
v. Wright,
Wright, 832
832 A.2d 1104, 1107
A.2d 1104, (Pa. Super.
1107 (Pa. 2003). It
Super. 2003). It is
is
well-accepted
well-accepted "[i]n imposing a
"[i]n imposing a sentence, the trial
sentence, the may determine
judge may
trial judge determine whether, given the
whether, given the facts
facts of
of
aa particular
particular case,
case, aa sentence
sentence should
should run consecutive to
run consecutive to or
or concurrent
concurrent with
with another
another sentence
sentence being
being
imposed. Commonwealth
imposed. Commonwealth ».
». Wright,
Wright, 832
832 A.2d
A.2d at
at 1107.
1107.
At
At sentencing, the Court
sentencing, the Court stated:
stated:
THE
THE COURT:
COURT: You won't be released
You won't released for
for a while. II mean,
a while. mean, with
with your
your prior
prior
record
record and
and all
all the
the people
people you scammed, II think you're
you scammed, you're sorry
sorry you
you got
got caught
caught
and
and the consequences. II think
the consequences. think that's
that's what
what you
you regret right now.
regret right now. This
This has
has
been going on
been going fur way
on fur way too We had
long. We
too long. had this discussion before.
this discussion before. You
You know,
know,
you
you can
can lay
lay blame
blame onon this
this person and that
person and person, but
that person, it's all
but it's all on
on you.
you.
THE
THE COURT:
COURT: More
More robbing
robbing Peter
Peter to Paul. All
pay Paul.
to pay All right,
right, Attorney
Attorney
Maskrey?
Maskrey?
...
THE
THE COURT:
COURT: AII right. Taking
AII right. Taking into
into consideration
consideration the
the statements
statements of of both
both
counsel,
counsel, statement
statement of
of the
the defendant,
defendant, the
the presentence
presentence investigation report as
investigation report as
well
well as
as the
the revocation
revocation summary
summary andand the guidelines as
the guidelines as propagated
propagated by by the
the
Pennsylvania
Pennsylvania Commission
Commission on [Sentencing as
on [Sentencing well as
as well as the very extensive
the very extensive
criminal history, and,
criminal history, and, once again, these
once again, these are
are the types of
the types of crimes
crimes that drive
drive the
the
honest citizenry out
honest citizenry out there
there crazy,
crazy, and
and we've
we've had
had too
too much
much of of this
this from
from you,
you,
David.
David.
At 2926
At of 2021,
2926 of 2021, count
count one,
one, the
the sentence
sentence will
will be
be that you serve
that you serve ....
....
See Tr.
See Tr. Revo. & Sent.
Revo. & Sent. 3/7/22,
3/7/22, pp. 9, 1I.
1I.
Assuming arguendo
Assuming arguendo the
the claims
claims as to
to the
the discretionary aspects of
discretionary aspects of sentence
sentence have
have been
been
preserved,
preserved, the
the record
record reveals claims are
Appellant's claims
reveals Appellant's are frivolous.
frivolous. The which are
sentences, which
The sentences, are at
at the
the
8
are presumed appropriate under the
standard range of the sentencing guidelines, are
bottom of the standard the
Sentencing Code.
Sentencing the Court
Also, the
Code. Also, and reviewed
ordered and
Court ordered presentence investigation
reviewed aa presentence report and
investigation report and
weighed information in the
the information
weighed the the report the sentences.
crafting the
report in crafting See Tr. Revo.
sentences. See Revo. & Sent. 3/7/22,
& Sent. 3/7/22, p.
11. Additionally, the Court
Additionally, the argument from
considered argument
Court considered counsel, including
from counsel, information about
including information about
Appellant's the fact
addiction, the
Appellant's addiction, Appellant entered
fact Appellant pleas, and
entered guilty pleas, and counsel's expressions of
counsel's expressions of
Appellant's regret
Appellant's remorse. The
and remorse.
regret and also considered
Court also
The Court allocution from
considered allocution from Appellant.
Appellant.
Under circumstances, it is
these circumstances,
Under these is properly the Court
assumed the
properly assumed Court weighted relevant factors
all relevant
weighted all factors
under the Sentencing
under the and considered
Code and
Sentencing Code mitigating evidence
considered mitigating imposing the
in imposing
evidence in sentences at the
the sentences the
bottom of the
bottom of standard range
the standard of the guidelines.
range of The Court
guidelines. The properly exercised
Court properly exercised its discretion
discretion in
in
imposing sentences. The
consecutive sentences.
imposing consecutive claims are
appellate claims
The appellate meritless and
are meritless the appeals must
and the must be
dismissed.
dismissed.
CONCLUSION
CONCLUSION
For the
For the above reasons, the
above reasons, appeals must
the appeals must be dismissed and
be dismissed the judgments
and the sentence should
of sentence
judgments of should
be affirmed. The
affirmed. Clerk of
The Clerk Courts is
of Courts hereby directed
is hereby directed to the record
transmit the
to transmit to the
record to Superior Court.
the Superior Court.
THE COURT:
BY THE
BY COURT:
cc:
cc: Attorney's Office
District Attorney's Office
Tina M.
Tina Esq., 4402
Fryling, Esq.,
M. Fryling, Peach Street,
4402 Peach No. 3,
Suite No.
Street, Suite PA 16509
Erie, PA
3, Erie, 16509
David A.
David ID No.
Jr., Inmate ID
Santia, Jr.,
A. Santia, QN-6750, SCI
No. QN-6750, Houtzdale, 209
SCI Houtzdale, Drive, PP.O.
Institution Drive,
209 Institution .0.
Box 1000,
Box Houtzdale, PA
1000, Houtzdale, PA 16698-1000 LEGAL MAIL
16698-1000 LEGAL MAIL
9