Com. v. Alston, J.

• Court: Superior Court of Pennsylvania
• Decided: March 10, 2022
• Docket: 1154 WDA 2021
• Status: Unpublished

Opinion

J-S07043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES EDWARD ALSTON : : Appellant : No. 1154 WDA 2021

Appeal from the Judgment of Sentence Entered June 23, 2021 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0000439-2020

BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 10, 2022

James Edward Alston (Alston) appeals from the June 23, 2021 judgment

of sentence imposed by the Court of Common Pleas of Beaver County (trial

court) following his nolo contendere plea to sexual abuse of children,

possession of child pornography, unlawful contact with a minor, obscene and

other sexual materials and performances, and criminal use of a

communication facility.1 Alston’s counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), and a petition for leave to withdraw as counsel. We

grant the petition to withdraw and affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 6312(b)(1), 6312(d), 6318(a)(4), 5903(c)(1) & 7512(a). J-S07043-22

We glean the following facts from the certified record. In October 2019,

law enforcement obtained a warrant to search Alston’s residence and cell

phone and discovered images and videos of child pornography. The victim

was a 13-year-old female who attended Alston’s church. She said that she

had known Alston for many years and that approximately one year earlier, he

provided her with a cell phone and asked her to send him photos of herself

naked and performing various sexual acts. Alston provided her with money

and candy in exchange for the images. On several occasions, Alston sent her

videos of himself engaging in sexual acts with other people.

Alston was charged by criminal information with five counts each of

sexual abuse of children and possession of child pornography and one count

each of unlawful contact with a minor, obscene and other sexual materials and

performances, and criminal use of a communication facility. He entered the

above-described open plea and the Commonwealth withdrew the remaining

charges. Sentencing was deferred for a presentence investigation and report

(PSI) and an evaluation by the Sexual Offenders Assessment Board (SOAB).

At sentencing, the parties discussed discrepancies in Alston’s Prior

Record Score (PRS) based on a Pennsylvania State Police (PSP) background

check and the number the probation office had calculated in the PSI.2 The

2 The probation office had reported convictions from the 1990s that did not appear on the PSP’s report. In addition, the Commonwealth argued that one of Alston’s convictions in 1990 for aggravated assault was improperly listed (Footnote Continued Next Page)

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trial court used the PRS of 1 and placed the following sentencing guideline

ranges on the record: based on an Offense Gravity Score (OGS) of 9, the

standard range for counts 1 and 6 was 18 to 30 months of incarceration;

based on an OGS of 6, the standard range for count 11 was 6 to 14 months

of incarceration; and based on an OGS of 5, the standard range for counts 12

and 13 was 1 to 12 months of incarceration.

The trial court stated that it had reviewed the PSI, which included an

impact statement from the victim’s mother. It noted that the SOAB had

opined that Alston was not a sexually violent predator. The Commonwealth

did not present any additional evidence.

Alston’s two adult daughters testified on his behalf. They testified

similarly that their father had been a positive influence in their lives, was a

pillar of his community and had raised them with strong moral values. They

described him as a good grandfather to their children. They both said he had

suffered from depression and anxiety because of the charges and that he had

expressed remorse and intended to learn from his mistakes.

Alston testified that he was currently retired but worked part-time as an

office sanitizer. He had previously worked at Walmart and as a truck driver.

as a first-degree misdemeanor instead of a second-degree felony. The trial court also identified misdemeanor convictions from 1995, 1997 and 1998 and an additional felony conviction. Even though Alston’s PRS had been calculated as a 1 during the pre-trial proceedings and negotiations, the Commonwealth argued that it should be at least a 2.

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He said that he had been addicted to drugs, primarily crack cocaine, for 17

years but had been sober since 1999. He currently lived alone and supported

himself. He apologized to the victim and her family and said that he hoped

his own family would be able to recover and learn from his mistakes.

Alston’s attorney argued that he had cooperated with the investigation

by turning over electronic devices to law enforcement and providing his

passwords. He had several health issues and had undergone back and neck

surgery in the past. He previously used painkillers to treat his injuries but

was not currently. The trial court asked Alston about a therapeutic

assessment report prepared for sentencing which indicated that he continued

to use painkillers and had denied committing the crimes. Alston said that the

report was incorrect and that he had always acknowledged his guilt.

The Commonwealth requested a sentence within the standard range of

the sentencing guidelines and Alston argued for a sentence of county

incarceration or intermediate punishment. After considering the evidence

presented at the hearing, the PSI and the assessments and evaluations, the

trial court sentenced Alston as follows:

Ct. 1: Sexual abuse of children – 2 to 6 years’ imprisonment

Ct. 6: Possession of child pornography – 2 to 5 years’ imprisonment, concurrent to count 1

Ct. 11: Unlawful contact with a minor – 1 to 2 years’ imprisonment, consecutive to count 1

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Ct. 12: Obscene and other sexual materials and performances – 1 to 2 years’ imprisonment, concurrent to count 11

Ct. 13: Criminal use of a communication facility – 1 to 2 years’ imprisonment, concurrent to count 11

The aggregate sentence was 3 to 8 years of imprisonment.

On July 6, 2021, Alston filed a timely3 post-sentence motion arguing

that his convictions for sexual abuse of children and unlawful contact with a

minor should have merged for sentencing purposes. He also sought

reconsideration of his sentence based on his age, health issues and the 25-

year lapse between this conviction and his prior criminal offense. The trial

court denied these motions and Alston timely appealed.4 Counsel filed a

statement of intent to file an Anders brief pursuant to Pa. R.A.P. 1925(c)(4).

As a result, the trial court transmitted the record to this Court without filing

an opinion pursuant to Pa. R.A.P. 1925(a). Counsel has filed an Anders brief

and an accompanying petition for leave to withdraw as counsel.

3 A post-sentence motion must be filed within ten days of the imposition of the sentence in open court. Pa. R. Crim. P. 720(A)(1). The tenth day following Alston’s sentencing hearing was Saturday, July 3, 2021, and the trial court was closed in observance of the Fourth of July on Monday, July 5. As a result, the post-sentence motion filed on Tuesday, July 6, 2021, was timely. See 1 Pa.C.S. § 1908.

4The trial court granted trial counsel’s motion to withdraw and appointed new counsel to represent Alston on appeal.

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“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. Martuscelli, 54 A.3d 940, 947 (Pa. Super.

2013). Procedurally, counsel must: (1) 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; (2) furnish a copy

of the brief to the defendant; and (3) advise the defendant that he or she has

the right to retain private counsel or raise additional arguments that the

defendant deems worthy of the court’s attention. See Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013). Substantial compliance

with these requirements is sufficient to permit withdrawal. Commonwealth

v. Reid, 117 A.3d 777, 781 (Pa. Super. 2015).

While his application to withdraw is sparse, on the whole, Counsel has

substantially complied with these procedural mandates. Counsel’s brief avers

that he reviewed the entire record and concluded that the instant appeal is

frivolous. He served a copy of the brief and petition to withdraw on Alston

and attached a copy of the letter he sent to Alston to the petition filed in this

Court. See Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007)

(noting that counsel must attach to their withdrawal petition a copy of the

letter sent to the client). The letter informed Alston that he has the right to

hire private counsel or file a pro se brief. Alston has not filed a response or

retained private counsel to represent him.

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We now examine the substantive elements of the Anders brief. The

brief accompanying the 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 conclusion that the appeal is frivolous; and (4) state

counsel’s reasons for concluding that the appeal is frivolous. See Santiago,

supra, at 361. Counsel’s Anders brief summarizes the factual and procedural

history, identifies four potential issues, and outlines the legal and factual

analysis that led counsel to conclude that any appeal would be frivolous.

Because counsel has complied with the procedural and substantive

requirements of Anders, we now “make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact

wholly frivolous.” Santiago, supra, at 355 n.5.

“A plea of guilty forecloses challenges to all matters except the

voluntariness of the plea, the jurisdiction of the court, or the legality of the

sentence.” Commonwealth v. Stewart, 867 A.2d 589, 591 (Pa. Super.

2005). Additionally, a defendant who enters an open plea may challenge the

discretionary aspects of the sentence. Commonwealth v. Tirado, 870 A.2d

362, 365 n.5 (Pa. Super. 2005). Counsel correctly notes that all crimes

charged in this case were alleged to have occurred in Beaver County, where

Alston resides. Accordingly, there is no non-frivolous challenge to the

jurisdiction of the trial court to adjudicate the claims. See 42 Pa.C.S. § 931(a)

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(jurisdiction of the courts of common pleas); Commonwealth v. Arcelay,

190 A.3d 609, 614 (Pa. Super. 2018) (“[A]ll courts of common pleas have

statewide subject matter jurisdiction in cases arising under the Crimes Code.”

(citation omitted, alteration in original)). Similarly, a defendant must preserve

a challenge to the validity of his plea by filing a motion to withdraw the plea

or raising an objection on the record. Commonwealth v. Monjaras-Amaya,

163 A.3d 466, 468-69 (Pa. Super. 2017). Here, Alston never challenged the

validity of his plea in the trial court, so any such challenge on appeal is waived

and wholly frivolous.

Next, we consider the legality of Alston’s sentence. There is no dispute

that the sentences the trial court imposed were well within the statutory

maximums for each of the offenses. However, Alston argued in his post-

sentence motion that the charges of sexual abuse of children and unlawful

contact with a minor should have merged for sentencing purposes. “A claim

that crimes should merge for sentencing purposes raises a non-waivable

challenge to the legality of the sentence; thus, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Edwards, 256

A3d 1130, 1136 (Pa. 2021). Offenses merge when “the crimes arise from a

single criminal act and all of the statutory elements of one offense are included

in the statutory elements of the other offense.” 42 Pa.C.S. § 9765.

Alston’s offenses cannot merge because they are not based on the same

criminal act and neither offense contains all elements of the other. Sexual

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abuse of children required proof that Alston “cause[d] or knowingly permit[ed]

a child under the age of 18 years to engage in a prohibited sexual act. . . if

such person knows, has reason to know or intends that such act may be

photographed, videotaped, depicted on computer or filmed.” 18 Pa.C.S.

§ 6312(b)(1). In support of this offense, at the plea hearing, the

Commonwealth asserted that Alston gave the victim a cell phone and induced

her to take and send photos and videos of herself naked and performing sexual

acts in exchange for money and candy.

In contrast, the crime of unlawful contact with a minor required proof

that Alston intentionally contacted the victim for the purpose of engaging in

the crime of obscene and other sexual materials and performances, i.e.,

knowingly disseminating an image or video depicting nudity, sexual conduct

or sadomasochistic abuse to a minor. 18 Pa.C.S. §§ 6318(a)(4), 5903(c)(1).

In support of this charge, it asserted that Alston had sent videos of himself

engaged in sexual acts to the victim. This conduct was distinct from Alston’s

requests that the victim provide him with images and videos of herself and

required factual proof of elements not present in the crime of sexual abuse of

children. Accordingly, the crimes do not satisfy the two-part test for merger

and any challenge to the legality of his sentence on these grounds is frivolous.

See 42 Pa.C.S. § 9765.

Finally, though it was not addressed by counsel, we consider whether

the trial court abused its discretion in denying Alston’s post-sentence motion

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for reconsideration of his sentence.5 Even though counsel did not include a

statement pursuant to Pa. R.A.P. 2119(f) in his brief raising a substantial

sentencing question for our review, “when direct appeal counsel has filed an

Anders brief and is requesting permission to withdraw from representation,

this Court may overlook certain procedural deficiencies in appellate court

filings to ensure that Anders counsel has not overlooked non-frivolous

issues.” Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020).

Accordingly, we proceed to consider whether Alston preserved a substantial

question regarding the appropriateness of his sentence.

“The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation

omitted). An appellant must preserve his claims at the time of sentencing or

in a post-sentence motion, file a timely notice of appeal, include a statement

5 Our standard of review is well-settled:

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. Wallace, 244 A.3d 1261, 1278–79 (Pa. Super. 2021) (citation omitted).

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of reasons for allowance of appeal pursuant to Pa. R.A.P. 2119(f) in his brief,

and raise a substantial question for review. Id. Here, Alston filed a timely

post-sentence motion seeking a reduction of the sentence and a timely notice

of appeal. Thus, we consider whether he has raised a substantial question.

“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.”

Commonwealth v. Clarke, 70 A.3d 1281, 1286–87 (Pa. Super. 2013)

(citation omitted). “[T]his Court has held on numerous occasions that a claim

of inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.

Super. 2013) (citation omitted, alteration in original).

In his post-sentence motion, Alston requested reconsideration “based

upon his age, health, and lack of criminal history.” Post-Sentence Motion,

7/6/21, at ¶ 12. He stated that he would soon turn 70 years old and suffered

from multiple health problems, “including hypertension and prostate issues

that require medication and careful monitoring.” Id. at ¶ 13. Finally, he

pointed out that prior to the instant case, he had not been charged criminally

since 1996.

Alston’s post-sentence motion simply restated mitigating factors he had

presented at the sentencing hearing as a basis for a reduction in his sentence.

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He did not claim that the trial court had not properly considered those factors

at sentencing or that it had otherwise failed to comply with the Sentencing

Code or abide by the fundamental norms underlying the sentencing process.

Conte, supra. A bald claim that the trial court did not give adequate

consideration to mitigating factors does not raise a substantial question for

our review.6 Disalvo, supra. Accordingly, any challenge to the discretionary

aspects of his sentence is frivolous.

Moreover, after independently reviewing the record, we conclude that

there are no additional non-frivolous issues that may support the appeal. See

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to first review

the issues raised by counsel and then review the entire record “to ascertain if

on its face, there are non-frivolous issues that counsel, intentionally or not,

missed or misstated”).

Petition to withdraw granted. Judgment of sentence affirmed.

6 Additionally, we note that the trial court imposed a sentence within the standard range of the sentencing guidelines following a hearing in which it received Alston’s witnesses, heard Alston’s allocution, gave Alston the benefit of a lower PRS when there were ambiguities in his criminal history and considered a PSI. Under these circumstances we discern no abuse of discretion in the trial court’s 3-to-8-year sentence of incarceration. See Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa. Super. 2019).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/10/2022

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