Com. v. Anderson, K.

• Court: Superior Court of Pennsylvania
• Decided: July 12, 2019
• Docket: 1084 MDA 2018
• Status: Unpublished

Opinion

J-S01010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KIJIFA AYESHA ANDERSON : : Appellant : No. 1084 MDA 2018

Appeal from the Judgment of Sentence Entered June 11, 2018 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000193-2015, CP-41-CR-0000401-2014, CP-41-CR-0001253-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KIJIFA AYESHA ANDERSON : : Appellant : No. 1085 MDA 2018

Appeal from the Judgment of Sentence Entered June 11, 2018 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000193-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KIJIFA AYESHA ANDERSON : : Appellant : No. 1086 MDA 2018

Appeal from the Judgment of Sentence Entered June 11, 2018 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001253-2017 J-S01010-19

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.: FILED JULY 12, 2019

Kijifa Ayesha Anderson appeals from the judgment of sentence imposed

after the court revoked her probation as well as a guilty plea to retail theft.

Additionally, William J. Miele, Esquire (“Attorney Miele”), has filed a petition

for leave to withdraw as counsel and an accompanying brief pursuant to

Anders v. California, 386 U.S. 738 (1967). We affirm the judgment of

sentence and grant counsel’s petition to withdraw.

In September 2014, Anderson pled guilty at CP-41-CR-0000401-2014

(“No. 401-2014”), to retail theft. The trial court sentenced her to two years’

probation. Shortly thereafter, in February 2015, Anderson pled guilty at CP-

41-CR-0000193-2015 (“No. 193-2015”) to another count of retail theft. The

trial court imposed a sentence of three years’ probation.

On May 23, 2018, Anderson pled guilty at CP-41-CR-0001253-2017

(“No. 1253-2017”) to retail theft and criminal attempt to commit the crime of

receiving stolen property. This guilty plea triggered a probation violation

hearing on June 11, 2018. At the hearing, the court revoked her probation on

her conviction for retail theft at No. 401-2014, and imposed a sentence of 1

to 2 years’ imprisonment. On her conviction for retail theft at No. 193-2015,

the court revoked her probation and sentenced her to a term of imprisonment

of 2 ½ to 5 years. Additionally, for her conviction at No. 1253-2017, the court

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

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sentenced Anderson to 4 to 30 months’ imprisonment. All three sentences

were set to run concurrently. Thus, the aggregate sentence imposed was 2 ½

to 5 years’ imprisonment.

Anderson filed a post-sentence motion, seeking reconsideration of the

sentence. The court denied reconsideration, and Anderson filed this timely

appeal.1 As a threshold matter, we must examine Attorney Miele’s request to

withdraw. To withdraw pursuant to Anders, 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 [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of her or her rights in light of counsel’s

1 On July 2, Anderson filed a notice of appeal at each docket bearing all three trial court docket numbers. On July 30, 2018, this Court issued a rule directing Anderson to show cause why her appeal should not be quashed in light of our Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding Pa.R.A.P 341’s Note requires the filing of separate notice of appeal for separate docket numbers; the failure to file separate notices requires quashal of the appeal). Appellant filed a response indicating that her case was distinguishable from Walker. We agree. While the inclusion of the three docket numbers on each notice of appeal confuses the issue, Anderson technically complied with the dictates of Pa.R.A.P. 341’s Note by filing a notice of appeal at each docket court number. Accordingly, we conclude that Walker is inapplicable here.

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withdrawal, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

Additionally, an Anders brief must comply with the following

requirements:

(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 conclusions 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “If counsel’s

petition and brief satisfy Anders, we will then undertake our own review of

the appeal to determine if it is wholly frivolous.” Commonwealth v. Wrecks,

931 A.2d 717, 721 (Pa. Super. 2007) (citation omitted).

Instantly, Attorney Miele filed a petition to withdraw, certifying he has

reviewed the case and determined that Anderson’s appeal is frivolous. Counsel

attached to his petition a copy of his letter to Anderson, advising that she may

retain new counsel, raise additional issues pro se, or discontinue her appeal.

Attorney Miele also filed a brief, which includes a summary of the history and

facts of the case, potential issues that could be raised by Anderson, and

counsel’s assessment of why those issues are meritless, with citations to

relevant legal authority.

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Counsel has thus complied with the requirements of Anders. Anderson

has not filed a response. We may now proceed to review the issues outlined

in the Anders brief.

Counsel has identified a single issue Anderson believes entitles her to

relief. Anderson asserts the court abused its discretion in imposing sentence.

She concedes this argument raises a challenge to the discretionary aspects of

her sentence. See Anders’ Brief, at 10. “A challenge to the discretionary

aspects of a sentence must be considered a petition for permission to appeal,

as the right to pursue such a claim is not absolute.” Commonwealth v.

McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted). “Two

requirements must be met before we will review this challenge on its merits.”

Id. (citation omitted).

“First, an appellant must set forth in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).

“Second, the appellant must show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

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We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying the

appeal, which are necessary only to decide the appeal on the merits.” Id.

(citation and emphasis omitted).

In her Rule 2119(f) statement, Anderson contends the court abused its

discretion by imposing an unduly harsh and manifestly excessive sentence

while failing to consider her individual characteristics, the nature of the

offense, and her rehabilitative needs. This raises a substantial question for our

review. See Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013)

(holding a claim that a failure to account for rehabilitative needs resulted in

an excessive sentence raises a substantial question).

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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted). When imposing sentence, a court must consider “the protection of

the public, gravity of the offense in relation to impact on victim and

community, and rehabilitative needs of defendant.” Commonwealth v.

Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (citation omitted).

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Anderson challenges the sentences imposed following both the

revocation of probation and a guilty plea. The imposition of these distinct types

of sentences requires different considerations by the trial court. “Upon

revocation the sentencing alternatives available to the court shall be the same

as were available at the time of initial sentencing, due consideration being

given to the time spent serving the order of probation.” 42 Pa.C.S.A. §

9771(b). The court may impose a sentence of total confinement upon

revocation if “the defendant has been convicted of another crime[.]” Id., at

(c)(1). “The trial court is limited only by the maximum sentence that it could

have imposed originally at the time of the probationary sentence.”

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (citations

omitted).

In addition, in all cases where the court resentences an offender following revocation of probation … 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 [and] [f]ailure to comply with these provisions shall be grounds for vacating the sentence or resentence and resentencing the defendant. A trial court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question, but the record as a whole must reflect the sentencing court’s consideration of the facts of the crime and character of the offender.

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (internal

citations and quotation marks omitted; brackets in original).

Here, the court considered all necessary factors, and determined that

Anderson’s recidivism required a term of imprisonment to protect the public.

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There is no abuse of the court’s discretion as to the imposition of sentences

following revocation of Anderson’s probation at No. 401-2014 and No. 193-

2014.

Further, we find no abuse of discretion in the trial court’s sentence at

No. 1253-2017. Anderson does not argue the sentencing court misapplied the

guidelines or sentenced her outside the guidelines. In fact, Anderson’s

sentence was in the mitigated range of the guidelines. See Trial Court Opinion,

9/25/18, at 6-7. However, Anderson asserts her sentence was excessive

because the sentencing court failed to consider certain mitigating factors such

as her individual circumstances, the nature of the offense, and her need for

rehabilitation. See Anders Brief, at 8.

We note that, “[w]hen, as here, the trial court has the benefit of a pre-

sentence report [“PSI”], we presume that the court was aware of the relevant

information regarding the defendant’s character and weighed those

considerations along with any mitigating factors.” Commonwealth v.

Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014) (citation omitted).

Additionally, in its sentencing order, the trial court specifically stated:

[i]n making these sentences, the [c]ourt has considered the PSI, the long time criminal behavior, the defendant’s association with negative and criminal people during her period of supervision, her general lack of obedience with the supervision, the fact that she flunked out of Drug Court, the fact that she performed no community service on Drug Court and committed the new offense at [No.] 1253-2017.

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Sentencing Order, 6/11/18, at 2 (unnumbered). It is clear from the record

that the sentencing court did not ignore or misapply any of the sentencing

guidelines. See Raven, 97 A.3d at 1254. As such, we do not find that the trial

court abused its discretion in sentencing Anderson.

Anderson’s challenges to the discretionary aspects of her sentence are

meritless. Our independent review of the record reveals no other, non-

frivolous issues that Anderson could raise on appeal. Therefore, we affirm

Anderson’s judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/12/2019

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