Com. v. Baker, T.

• Court: Superior Court of Pennsylvania
• Decided: August 3, 2022
• Docket: 783 WDA 2021
• Status: Unpublished

Opinion

J-S14007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS K. BAKER, SR. : : Appellant : No. 783 WDA 2021

Appeal from the Judgment of Sentence Entered March 29, 2021 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000549-2020

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: August 3, 2022

Thomas K. Baker, Sr., appeals from the judgment of sentence entered

after he pleaded guilty to failure to comply with registration requirements.

See 18 Pa.C.S.A. § 4915.2(a)(1). Baker’s counsel has filed a Petition for Leave

to Withdraw as Counsel and an Anders brief.1 We affirm the judgment of

sentence and grant counsel’s Petition.

Baker, a convicted sex offender, entered a negotiated plea of guilty to

one count of failure to register, a third-degree felony. In exchange, the

Commonwealth agreed to recommend a two-year minimum sentence. Trial

Court Opinion, 12/29/21, at 1. Baker acknowledged that the Commonwealth

would recommend a two-year minimum sentence during his guilty plea

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* Retired Senior Judge assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967). J-S14007-22

hearing. See N.T., 12/20/20, Guilty Plea Hearing, at 3. The Plea Agreement

Form also specified that the Commonwealth would recommend a two-year

minimum sentence. See Plea Agreement Form, 12/17/20, at 1.

At the sentencing hearing, the Commonwealth argued that Baker’s

registration had lapsed for approximately six months before the police located

Baker. N.T., Sentencing Hearing, 3/29/21, at 6. The court stated it had been

informed by a pre-sentence investigation report (“PSI”) and observed that

Baker had previously been convicted of failure to register. Id. at 2, 5, 9. The

court sentenced Baker to two to seven years’ incarceration, as the

Commonwealth recommended in accordance with the plea agreement.

Baker filed a post-sentence motion arguing that his sentence is

manifestly excessive and clearly unreasonable. The court denied the motion.

After obtaining leave via the Post Conviction Relief Act to file a nunc pro tunc

notice of appeal, Baker appealed.

As stated above, Baker’s counsel has filed an Anders brief and Petition

for Leave to Withdraw as Counsel. We must assess counsel’s withdraw request

before deciding whether the appeal is wholly frivolous. Commonwealth v.

Redmond, 273 A.3d 1247, 1252 (Pa.Super. 2022).

Counsel seeking to withdraw must petition the Court for leave to do so,

asserting that “after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous.” Id. (quoting

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

banc)). Counsel must also file an Anders brief in which counsel (1)

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summarizes the facts of the case, (2) refers to anything in the record that

might support an appeal, (3) sets forth the conclusion that an appeal would

be frivolous, and (4) explains counsel’s reasons for so concluding. Id. (citing

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)). Counsel must

furnish a copy of the brief to the appellant and advise the appellant of his right

to retain private counsel or proceed pro se to raise additional arguments. Id.

Counsel’s petition states she has reviewed all available transcripts,

pleadings, and other materials from the file, has communicated with Baker,

and has concluded the appeal is wholly frivolous. Counsel’s Anders brief

discusses the facts and procedural history of the case, summarizes the issue

Baker wishes to raise, and sets forth counsel’s reasons for concluding the

appeal is frivolous. Counsel’s letter to Baker states she enclosed a copy of the

Anders brief and advises him of his right to retain new counsel or act on his

own behalf, raising additional points to this Court. Counsel has met the above

requirements, and we therefore turn to whether the appeal is, as counsel

alleges, wholly frivolous.

The Anders brief presents one issue: “The sentence imposed in this

case was manifestly abusive and clearly unreasonable in that it failed to take

into account the fact that [Baker’s] offense was not a crime of violence, but

rather a crime of failure to report.” Anders Br. at 3. Counsel explains that

Baker believes his sentence was unduly harsh because his crime did not

involve direct harm to any individual. Id. at 8. According to counsel, Baker

argues his issue raises a substantial question that his sentence is inappropriate

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under the Sentencing Code2 because “[a] lighter sentence, with a lesser period

of confinement, could achieve the goals of the protection of the public and the

rehabilitative needs of [Baker].” Id. at 5-6. Baker argues the court should

have imposed a “county sentence” so that he “could have been supervised

and participated in various programs for sex offenders[.]” Id. at 7. Baker

claims he did not deliberately fail to register as a sex offender but had trouble

finding a place to live due to his criminal history, was moving at the time he

was required to register, could not find a notary, and was impeded by the

Covid-19 pandemic. Id.

We agree that an appeal premised on the discretionary aspects of

Baker’s sentence would be wholly frivolous. We review a sentence for an abuse

of discretion, such as where the application of the Sentencing Guidelines would

be clearly unreasonable. See Commonwealth v. Rominger, 199 A.3d 964,

970 (Pa.Super. 2018); 42 Pa.C.S.A. § 9781(c)(2). Even assuming Baker’s

allegations pose a substantial question that his sentence is not appropriate

under the Sentencing Code,3 there is no reasonable basis in the record on

which to argue that the trial court abused its discretion, for the following

reasons.

2 Counsel has provided a statement in accordance with Pa.R.A.P. 2119(f).

3 We do not entertain an appeal based on the discretionary aspects of a sentence unless the issue raises a substantial question that the sentence is inappropriate under the Sentencing Code. Commonwealth v. Radecki, 180 A.3d 441, 467 (Pa.Super. 2018).

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First, Baker’s argument that his sentence was not individualized is

frivolous. Because the court had a PSI, “it is presumed that the court is aware

of all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed.”

Commonwealth v. Edwards, 194 A.3d 625, 638 (Pa.Super. 2018) (cleaned

up). While Baker characterizes his offense as victimless and claims the

protection of the public and his rehabilitative needs warrant a more lenient

sentence, the trial court pointed out that Baker has previously been convicted

of this same offense and yet allowed his registration to lapse again for

approximately six months. Finally, the court imposed the very sentence the

Commonwealth recommended in accordance with its agreement with Baker:

a two-year minimum sentence. We discern no reasonable basis on which to

contend that the sentence was an abuse of discretion.

Our independent review discloses no non-frivolous issues that Baker

could raise on direct appeal. We therefore affirm the judgment of sentence

and grant counsel’s Petition for Leave to Withdraw.

Judgment of sentence affirmed. Petition for Leave to Withdraw as

Counsel granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/3/2022

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