Com. v. Brown, R.

J-S46020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RICHARD BROWN :

:

Appellant : No. 454 EDA 2019

Appeal from the Judgment of Sentence Entered January 8, 2019

In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP-23-CR-0002746-2016

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED OCTOBER 22, 2019

Appellant, Richard Brown, appeals from the judgment of sentence

entered on January 8, 2019. On appeal, Appellant's court-appointed counsel

filed both a petition to withdraw as counsel and an accompanying brief

pursuant to Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) and

Anders v. California, 386 U.S. 738 (1967). We conclude that Appellant’s

counsel has complied with the procedural requirements necessary to

withdraw. Moreover, after independently reviewing the record, we conclude

that the instant appeal is wholly frivolous. We, therefore, grant counsel’s

petition for leave to withdraw and affirm Appellant’s judgment of sentence.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S46020-19

On June 8, 2017, Appellant pleaded guilty to retail theft;1 that day, the

trial court sentenced Appellant to serve two years of probation. In March and

April of 2018, Appellant was arrested on new charges: two counts of retail

theft and one count of possessing an instrument of crime (“PIC”). Appellant

pleaded guilty to these new charges on November 20, 2018. See Docket

Entries at CP-23-CR-0002059-2018 and CP-23-CR-0002064-2018.

As a result of these new convictions, the trial court held a violation of

probation and re-sentencing hearing on January 8, 2019. Following the

hearing, the trial court found Appellant in violation of his probation and

re-sentenced Appellant to serve a term of 12 to 36 months in prison for the

underlying retail theft conviction. N.T. VOP Hearing, 1/8/19, at 29-30.

On January 15, 2019, while Appellant was still represented by counsel,

Appellant filed a pro se motion, which declared:

Hon[orable trial court judge,]

I have 10 days to appeal your sent[ence] of 1 to 3 years[.]

I am requesting Your [Honor] if possible that I be appointed

a lawyer to represent me in this appeal.

So for the record[] . . . I am on record to appeal!

Please Your Honor if it’s OK with your office I be appointed a

(lawyer) because a part of my appeal is I feel the public

____________________________________________

1 18 Pa.C.S.A. § 3929(a)(1).

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defender[’s] office never spoke to me, never gave me

paperwork. My [Gagnon II2] hearing I feel was illegal.

So please I am appealing this sent[ence].

Appellant’s Pro Se Motion, 1/15/19, at 1-2 (some emphasis omitted).

There is no evidence that the clerk of courts complied with Pennsylvania

Rule of Criminal Procedure 576(A)(4), which declares:

(4) In any case in which a defendant is represented by an

attorney, if the defendant submits for filing a written motion,

notice, or document that has not been signed by the

defendant's attorney, the clerk of courts shall accept it for

filing, time stamp it with the date of receipt and make a

docket entry reflecting the date of receipt, and place the

document in the criminal case file. A copy of the time

stamped document shall be forwarded to the defendant's

attorney and the attorney for the Commonwealth within 10

days of receipt.

Pa.R.Crim.P. 576(A)(4).

Further, the trial court erroneously accepted Appellant’s pro se motion,

considered it a “motion for reconsideration” of the sentence, and then

scheduled a February 12, 2019 hearing on the motion. Trial Court Order,

1/17/19, at 1; see Commonwealth v. Reid, 117 A.3d 777, 781 n.8 (Pa.

Super. 2015) (holding: the defendant’s pro se post-sentence motion, which

he filed while represented by counsel, was a legal nullity); see also

Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (“there is no

constitutional right to hybrid representation either at trial or on appeal”);

Commonwealth v. Ruiz, 131 A.3d 54, 56 n.4 (Pa. Super. 2015) (the

____________________________________________

2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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defendant's “pro se motion to modify sentence . . . was a legal nullity . . .

[because] he was represented by counsel” at the time). As an additional

oddity, the scheduled, February 12, 2019 hearing date was beyond the time

our rules gave Appellant to file a timely notice of appeal and the trial court to

reconsider its sentence. See Pa.R.A.P. 903(a) (generally requiring that a

notice of appeal be filed “within 30 days after the entry of the order from

which the appeal is taken”); 42 Pa.C.S.A. § 5505 (declaring that, generally, a

court “may modify or rescind any order within 30 days after its entry . . . if no

appeal from such order has been taken or allowed”); see also Pa.R.Crim.P.

708(E) (“[a] motion to modify a sentence imposed after a revocation shall be

filed within 10 days of the date of imposition. The filing of a motion to modify

sentence will not toll the 30-day appeal period”).

On February 6, 2019, Appellant’s counsel filed a timely notice of appeal

in the case.3 On appeal, Appellant’s court-appointed counsel filed a petition

for leave to withdraw and counsel accompanied this petition with an Anders

brief. The Anders brief raises one claim:

____________________________________________

3 On February 26, 2019, the trial court held a hearing on Appellant’s pro se

“motion for reconsideration” of his sentence. This hearing occurred after

Appellant’s counsel filed a timely notice of appeal in the case and well-beyond

the 30 days that 42 Pa.C.S.A. § 5505 allows for modification of an order. See

Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (explaining:

Section 5505 “allows a trial court to modify or rescind an order within thirty

days of entry of that order, unless an appeal has been taken removing the

case from the trial court's jurisdiction”). The trial court then entered an order

on February 27, 2019, declaring that it was denying Appellant’s “motion for

reconsideration;” nevertheless, at the time the trial court entered its order, it

did not have jurisdiction to modify Appellant’s sentence.

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Whether the term of incarceration imposed herein is harsh

and excessive under the circumstances due to [Appellant’s]

mental illness and post-traumatic stress disorder and its

potential to lengthen his term of incarceration consecutive to

his federal sentence[?]

Appellant’s Brief at 3.

Before reviewing the merits of this appeal, this Court must first

determine whether appointed counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements. First, counsel must “petition the court for

leave to withdraw stating that, after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous.”

Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which

counsel:

(1) provide[s] a summary of the procedural history and facts,

with citations to the record; (2) refer[s] to anything in the

record that counsel believes arguably supports the appeal;

(3) set[s] forth counsel’s conclusion that the appeal is

frivolous; and (4) state[s] 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.

Finally, counsel must furnish a copy of the Anders brief to his or her

client and advise the client “of [the client’s] right to retain new counsel,

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proceed pro se or raise any additional points worthy of this Court’s attention.”

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

If counsel meets all of the above 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; see also

Commonwealth v. Yorgey, 188 A.3d 1190, (Pa. Super. 2018) (en banc)

(holding that the Anders procedure requires this Court to review “the entire

record with consideration first of [the] issues raised by counsel. . . . [T]his

review does not require this Court to act as counsel or otherwise advocate on

behalf of a party. Rather, it requires us only to conduct a review of the record

to ascertain if[,] on its face, there are non-frivolous issues that counsel,

intentionally or not, missed or misstated. We need not analyze those issues

of arguable merit; just identify them, deny the motion to withdraw, and order

counsel to analyze them”). It is only when all of the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

In the case at bar, counsel complied with all of the above procedural

obligations. We must, therefore, review the entire record and analyze whether

this appeal is, in fact, wholly frivolous. Our review begins with the claim

Appellant raises in his brief.

On appeal, Appellant claims that the trial court abused its discretion by

imposing a harsh and excessive sentence. Specifically, Appellant claims that

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his sentence is excessive in light of a term of federal imprisonment that

Appellant anticipated he would also be serving and in light of certain mitigating

factors. Appellant’s Brief at 3. Appellant’s claims on appeal challenge the

discretionary aspects of his sentence.

“[S]entencing is a matter vested in the sound discretion of the

sentencing judge, whose judgment will not be disturbed absent an abuse of

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.

2001). Moreover, pursuant to statute, Appellant does not have an automatic

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b). Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

As this Court explained:

[t]o reach the merits of a discretionary sentencing issue, we

conduct a four-part analysis to determine: (1) whether

appellant has filed a timely notice of appeal, Pa.R.A.P. 902,

903; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence,

Pa.R.Crim.P. 720 [and 708]; (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

At the outset, Appellant’s discretionary aspect of sentencing claim is

waived, as Appellant did not object to his sentence during the sentencing

hearing and, following sentencing, Appellant’s counsel did not file a

Pennsylvania Rule of Criminal Procedure 708(E) motion to modify Appellant’s

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sentence. Ruiz, 131 A.3d at 56 n.4 (the defendant's “pro se motion to modify

sentence . . . was a legal nullity . . . [because] he was represented by counsel”

at the time); see also Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super.

2007); Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008)

(“when a court revokes probation and imposes a new sentence, a criminal

defendant needs to preserve challenges to the discretionary aspects of that

sentence either by objecting during the revocation sentencing or by filing a

post-sentence motion”). Further, since the claim on appeal is waived, the

claim is frivolous under Anders. Commonwealth v. Tukhi, 149 A.3d 881,

888-889 (Pa. Super. 2016) (holding that, under Anders, “[a]n issue that is

waived is frivolous”); Commonwealth v. Kalichak, 943 A.3d 285, 291 (Pa.

Super. 2008) (holding: “this issue has been waived. Having been waived,

pursuing this matter on direct appeal is frivolous”).

Moreover, even if we consider Appellant’s discretionary aspect of

sentencing claim on the merits (due to the breakdown in the court system in

failing to forward Appellant’s pro se motion to modify his sentence to counsel),

the claim would still be frivolous.

Since Appellant was sentenced following the revocation of probation, the

sentencing guidelines do not apply to Appellant's sentence. 204 Pa.Code

§ 303.1(b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super.

2006). Nevertheless, in sentencing Appellant, the trial court was required to

“consider the general principles and standards of the Sentencing Code.”

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Commonwealth v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section

9721 expresses these general principles in the following manner:

the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the

offense as it relates to the impact on the life of the victim and

on the community, and the rehabilitative needs of the

defendant.

42 Pa.C.S.A. § 9721(b).

Further, as we have held:

In addition to issuing a sentence that is “consistent with the

protection of the public, the gravity of the offense as it relates

to the impact on the life of the victim and on the community,

and the rehabilitative needs of the defendant,” a [violation of

probation (“VOP”)] court must also consider, for example,

whether the sentence imposed is “essential to vindicate the

authority of the court,” and must give “due consideration . .

. to the time spent serving the order of probation.”

Commonwealth v. Derry, 150 A.3d 987, 994 (Pa. Super. 2016) (corrections

omitted), quoting 42 Pa.C.S.A. §§ 9721(b) and 9771.

“The determination of whether a particular case raises a substantial

question is to be evaluated on a case-by-case basis. Generally, however, in

order to establish that there is a substantial question, the appellant must show

actions by the sentencing court inconsistent with the Sentencing Code or

contrary to the fundamental norms underlying the sentencing process.”

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted). “When considering the merits of a discretionary aspects of

sentencing claim, we analyze the sentencing court's decision under an abuse

of discretion standard.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.

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Super. 2015). “An abuse of discretion is more than just an error of judgment

and, on appeal, a trial court will not be found to have abused its discretion

unless the record discloses that the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will.”

Commonwealth v. Lane, 424 A.2d 1325, 1328 (Pa. 1981) (quotations

omitted).

On appeal, Appellant claims that his sentence is excessive in light of a

term of federal imprisonment that Appellant anticipated he would also be

serving and in light of certain mitigating factors. Appellant’s Brief at 3. These

claims are frivolous.

During the re-sentencing hearing, Appellant alerted the trial court to the

fact that he was also serving three years of federal, supervised release for

bank robbery. Appellant anticipated that he would “go back [to federal prison]

to serve the remainder of the three years based on the violation.” N.T. VOP

Hearing, 1/8/19, at 4-5. The Commonwealth responded: “I have spoken a

couple of different times to [Appellant’s] federal probation officer. They're not

sure what action the [j]udge is going to take in federal court for the violations.”

Id. at 5.

In sentencing Appellant, the trial court noted that it could not bind the

federal court to any particular sentence. Id. at 30. However, the trial court

declared: “I have no idea what your federal [judge] is going to do. . . . [O]n

the sheet I would recommend that . . . my sentence run concurrent to any

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federal sentences imposed. That’s my recommendation. I can’t make the

[federal j]udge do it.” Id. at 29-30.

In light of the fact that the trial court recommended its sentence run

concurrent to any federal sentence Appellant would receive, Appellant’s claim

on appeal – that his sentence is excessive because of “its potential to lengthen

his term of incarceration consecutive to his federal sentence” – does not raise

a substantial question under the Sentencing Code and is frivolous under

Anders. See Appellant’s Brief at 3. Simply stated, the trial court

recommended that Appellant’s sentence run concurrent – not consecutive –

to any federal sentence Appellant were to receive.

Appellant also claims that, in imposing his sentence, the trial court failed

to consider the mitigating factors of his “mental illness and post-traumatic

stress disorder.” Id. This Court has 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. Swope, 123

A.3d 333, 339 (Pa. Super. 2015) (citations omitted), citing Commonwealth

v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014); see also Commonwealth

v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (same).

Nevertheless, Appellant’s claim is frivolous because, during the re-sentencing

hearing, the trial court demonstrated it was well aware of – and thoroughly

considered – Appellant’s mental health issues and PTSD. See N.T. VOP

Hearing, 1/8/19, at 24-25 (Appellant explaining his mental health issues);

26-27 (the Commonwealth explaining Appellant’s mental health issues and

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PTSD); see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)

(“[i]t would be foolish, indeed, to take the position that if a court is in

possession of the facts, it will fail to apply them to the case at hand”).

Therefore, we conclude that the trial court did not abuse its discretion

when it sentenced Appellant to serve a term of 12 to 36 months in prison and

that Appellant’s claim to the contrary is frivolous.

We independently considered the issues raised within Appellant’s brief

and we determined that the claims are frivolous. In addition, after an

independent review of the entire record, we see nothing that might arguably

support this appeal. The appeal is therefore wholly frivolous. Accordingly, we

affirm Appellant’s judgment of sentence and grant counsel’s petition for leave

to withdraw.

Petition for leave to withdraw appearance granted. Judgment of

sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/19

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