Com. v. Barclay, J.

J-S58045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOE DAVID BARCLAY

Appellant No. 761 MDA 2015

Appeal from the Judgment of Sentence March 5, 2015

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0000550-2014

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 16, 2015

Appellant, Joe David Barclay, appeals from the judgment of sentence

entered in the Franklin County Court of Common pleas, following his open

guilty plea to possession of child pornography and criminal use of

communication facility.1 We affirm and grant counsel’s petition to withdraw.

The relevant facts and procedural history of this appeal are as follows.

Between December 10, 2013 and March 6, 2014, Appellant used a computer

to access videos of minors performing sex acts. On November 3, 2014,

Appellant pled guilty to seven (7) counts of possession of child pornography

and one (1) count of criminal use of communication facility. The court

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1

18 Pa.C.S.A. §§ 6312(d), 7512(a).

_____________________________

*Retired Senior Judge assigned to the Superior Court.

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sentenced Appellant on March 5, 2015, to concurrent terms of thirty (30) to

eighty-four (84) months’ incarceration for each count of possession of child

pornography. The court imposed a consecutive term of twelve (12) to

eighty-four (84) months’ incarceration for the criminal use of communication

facility conviction. Thus, Appellant received an aggregate sentence of forty-

two (42) to one hundred sixty-eight (168) months’ incarceration. On March

10, 2015, Appellant filed a timely post-sentence motion, which the court

denied on April 9, 2015. Appellant filed a timely notice of appeal on April

30, 2015. On that same date, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant filed a Rule 1925(b) statement on June 8, 2015.2 On July 15,

2015, counsel filed with this Court a petition to withdraw representation. On

August 6, 2015, Appellant filed a pro se response to counsel’s request to

withdraw.

As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

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2

Appellant’s Rule 1925(b) statement was untimely. Nevertheless, this Court

may address the merits of a criminal appeal where a defendant files an

untimely Rule 1925(b) statement, if the trial court had adequate opportunity

and chose to prepare an opinion addressing the issue(s) raised on appeal.

See Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en banc).

Here, the trial court filed a Rule 1925(a) opinion that addresses the sole

issue raised on appeal. Moreover, counsel seeks to withdraw representation,

so she had only to file a Rule 1925(c)(4) statement of intent to file an

Anders brief, which would make a trial court opinion discretionary. See

Commonwealth v. McBride, 957 A.2d 752 (Pa.Super. 2008).

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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. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon[3] 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

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3

Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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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 on point that

have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

Instantly, counsel’s petition to withdraw states that counsel reviewed

the facts, relevant law, and potential issues for appeal, and determined the

appeal is wholly frivolous. Counsel notified Appellant of counsel’s request to

withdraw. Counsel also supplied Appellant with a copy of the Anders brief

and a letter explaining Appellant’s right to retain new counsel or to proceed

pro se to raise any additional issues Appellant believes this Court should

consider. In the Anders brief, counsel provides a summary of the facts and

procedural history of this case. Counsel’s argument section refers to

relevant law that might arguably support Appellant’s discretionary aspects of

sentencing claims raised on appeal. Counsel further states the reasons for

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her conclusion that the appeal is wholly frivolous. Therefore, counsel has

substantially complied with the requirements of Anders and Santiago.

We proceed to review the sentencing issue raised in the Anders brief:

WHETHER THE SENTENCING COURT ERRED AS A MATTER

OF LAW WHEN IT DENIED [APPELLANT’S] POST-SENTENCE

MOTION TO MODIFY SENTENCE?

(Anders Brief at 4).4

In his single issue, Appellant argues the court failed to articulate on

the record its reasons for the sentence imposed. Appellant asserts the court

neglected to take into account Appellant’s lengthy allocution, counsel’s

arguments, Appellant’s rehabilitative needs, and various mitigating factors.

Appellant contends the court abused its discretion when it imposed

consecutive sentences, which resulted in a maximum aggregate term that is

excessive and might effectively constitute a life sentence. Appellant

concludes this Court should vacate his judgment of sentence and remand for

resentencing. As presented, Appellant challenges the discretionary aspects

of his sentence. See Commonwealth v. Dunphy, 20 A.3d 1215

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4

In Appellant’s pro se response to counsel’s petition to withdraw, Appellant

reiterates the claim that his sentence is excessive. Appellant also asserts

that counsel provided inadequate representation and should not have

advised Appellant to take a plea. Appellant, however, fails to expand on this

argument or to cite any relevant law. Moreover, this Court cannot review

Appellant’s challenge to counsel’s effectiveness on direct appeal. See

Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (2013) (stating

ineffective assistance of counsel claims generally are to be deferred to

collateral review).

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(Pa.Super. 2011) (stating claim that sentencing court failed to offer

adequate reasons to support sentence challenges discretionary aspects of

sentencing); Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595

(Pa.Super. 2010) (explaining challenge to imposition of consecutive

sentences implicates discretionary aspects of sentencing); Commonwealth

v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is

manifestly excessive challenges discretionary aspects of sentencing);

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing

court failed to consider or did not adequately consider certain factors

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

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) (internal citations omitted).

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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 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 determination of what constitutes a substantial question must

be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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 912-13 (quoting

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a

sentence is manifestly excessive might raise a substantial question if the

appellant’s Rule 2119(f) statement sufficiently articulates the manner in

which the sentence imposed violates a specific provision of the Sentencing

Code or the norms underlying the sentencing process. Mouzon, supra at

435, 812 A.2d at 627. Generally, “[a]n allegation that a sentencing court

failed to consider or did not adequately consider certain factors does not

raise a substantial question that the sentence was inappropriate.” Cruz-

Centeno, supra at 545. A challenge to the trial court’s exercise of

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discretion in imposing sentences consecutively also generally fails to raise a

substantial question. Commonwealth v. Pass, 914 A.2d 442, 446

(Pa.Super. 2006). Nevertheless, “[a]n allegation that a judge ‘failed to offer

specific reasons for [a] sentence does raise a substantial question.’”

Dunphy, supra at 1222 (quoting Commonwealth v. Reynolds, 835 A.2d

720, 734 (Pa.Super. 2003)).

“In every case in which the court imposes a sentence for a felony or

misdemeanor…the court shall make as a 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

lengthy discourse on the trial court’s sentencing philosophy is not required.

Rather, the record as a whole must reflect the court’s reasons and its

meaningful consideration of the facts of the crime and the character of the

offender.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super.

2006). See also Commonwealth v. Brown, 741 A.2d 726 (Pa.Super.

1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001) (stating

court meets requirement that it state on record reasons for sentence

imposed if court states that it has consulted presentence investigation

(“PSI”) report).

Instantly, Appellant preserved his discretionary aspects of sentencing

claims in a timely filed post-sentence motion. Nevertheless, Appellant fails

to raise a substantial question with respect to his claims regarding the

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excessiveness of his sentence, the court’s decision to run counts

consecutively, and the court’s alleged failure to consider certain mitigating

factors. See Mouzon, supra; Pass, supra; Cruz-Centeno, supra.

Moreover, the court reasoned as follows in its Rule 1925(a) opinion:

Here, this [c]ourt carefully considered all relevant

sentencing factors, pursuant to 42 Pa.C.S.[A.] § 9721(b).

As a result, this [c]ourt imposed a standard range

sentence. First, this [c]ourt wholly disagrees with

[Appellant’s] claim that he has not been demonstrated to

be a danger to the public. [Appellant] was convicted of

seven counts of possessing child pornography. The

Pennsylvania Supreme Court has clearly stated that even

the mere possession and downloading of child pornography

is harmful to children as “each image of child pornography

creates a permanent record of a child’s abuse, which

results in continuing exploitation of a child when the image

is subsequently viewed.” Com[monwealth] v. Baker, 24

A.3d 1006, 1036 [Pa.Super. 2011]. Indeed, “[t]he

purpose of Section 6312 is plainly to protect children, end

the abuse and exploitation of children, and eradicate the

production and supply of child pornography.” Id. This

[c]ourt noted that [Appellant] had a prior record score of

5. This [c]ourt considered that [Appellant] was remorseful

at sentencing and he stated that he would seek treatment

along with the fact that [Appellant] has a criminal history.

While [Appellant’s] criminal history does not include

offenses that are similar to the instant offense, he does

have a somewhat lengthy criminal history, a majority of

which dates back as far as to the 1980’s. Therefore, this

[c]ourt decided to run the seven counts of Possession of

Child Pornography concurrently. The [c]ourt imposed a

sentence on Criminal Use of a Communication Facility that

ran consecutively to the Possession of Child Pornography

counts. Thus, this [c]ourt considered factors one (the

protection of the public) and two (the gravity of the

offense as it relates to the victim and on the community)

when imposing [Appellant’s] sentence.

As to rehabilitation, [Appellant] is correct that this [c]ourt

did not specifically mention the rehabilitation factor at

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sentencing[,] however[,] this court did consider

[Appellant’s] rehabilitation when imposing sentence. …

When imposing sentence, this [c]ourt considered the fact

that [Appellant] observed/possessed child pornography on

at least seven different occasions over the course of four

months. This [court] found that a fourteen year aggregate

maximum sentence was necessary in order to attempt to

rehabilitate [Appellant] so he does not continue to aid an

online industry that revolves around the exploitation of

children.

Appellant cites [Commonwealth v. Coulverson, 34 A.3d

135 (Pa.Super. 2011),] for the proposition that “[a]

sentence may still be excessive regardless of the

commencement of terms of imprisonment in the standard

guidelines range if the upper end of the sentence imposes

a term unlikely to end during the defendant’s natural life

span or…perpetually subject to the discretion of the Board

of Probation and Parole.” [Id. at 148.] This [c]ourt finds

that Coulverson is distinguishable from [Appellant’s]

case. The Coulverson [C]ourt noted that the trial court

mainly took into account the crime’s impact on the victims

and the severity of the crime when imposing sentence.

Id. at 149-50. The trial court did not consider

“dysfunction” in Coulverson’s own life, his remorse, his

cooperation, his attempts at becoming a productive

member of society, and the possibility that he may

succeed at rehabilitation after serving a substantial term of

18 years of incarceration. Id. at 150. On the other hand,

this [c]ourt in the instant matter considered all [Section]

9721(b) factors when it imposed sentence. In addition,

Coulverson was sentenced to a hefty 90 year period of

confinement (80 years if legally sentenced) despite the

tragedy in Coulverson’s life. Id. at 148. However, here,

[Appellant] was merely sentenced to a maximum of 14

years of incarceration.

(Trial Court Opinion, filed June 4, 2015, at 6-8). The record shows the court

appropriately considered all relevant sentencing factors, and belies

Appellant’s claim that the court imposed an excessive aggregate sentence.

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Additionally, the court had the benefit of a PSI report. See

Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super 2005) (stating where

sentencing court had benefit of PSI, law presumes court was aware of and

weighed relevant information regarding defendant’s character and mitigating

factors); Cruz-Centeno, supra (explaining that, absent more, standard

range sentence cannot be considered excessive or unreasonable where court

had benefit of PSI).

Appellant’s allegation that the court failed to state on the record its

reasons for the sentence does present a substantial question. See Dunphy,

supra. Nevertheless, at sentencing, the court explicitly stated that it took

into account the PSI report, which included various affidavits and Appellant’s

criminal history. The court also stated it considered Appellant’s age and the

nature of his offenses, and reviewed the Sentencing Guidelines before it

imposed standard range sentences for each of Appellant’s convictions.

Accordingly, the court adequately stated its reasons for the sentence at the

time of imposition. See Brown, supra; Malovich, supra. Following our

independent examination of the record, we affirm and grant counsel’s

petition to withdraw.

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Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2015

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