Com. v. Baun, N.

• Court: Superior Court of Pennsylvania
• Decided: December 19, 2014
• Docket: 381 WDA 2014
• Status: Unpublished

Opinion

J-S61024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

NICHOLAS W. BAUN

Appellant No. 381 WDA 2014

Appeal from the Judgment of Sentence of February 5, 2014 In the Court of Common Pleas of Jefferson County Criminal Division at No.: CP-33-CR-0000488-2004

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 19, 2014

Nicholas Baun appeals his February 5, 2014 judgment of sentence for

a probation violation. Baun alleges that the trial court abused its discretion

and imposed an excessive sentence. Baun’s counsel has filed a petition to

withdraw as counsel, together with an “Anders/Santiago brief.”1 We find

that Baun’s counsel has satisfied the Anders/Santiago requirements and

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* Retired Senior Judge assigned to the Superior Court. 1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). In Santiago, our Supreme Court developed certain rules to ensure compliance with the principles underlying the Anders decision. Thus, it is common practice in this Court to refer to briefs filed thereunder as “Anders/Santiago briefs.” Because a number of the cases discussed below predate Santiago, however, we will refer to “Anders briefs” when the brief at issue was filed before Santiago was decided. J-S61024-14

that Baun has no meritorious issues to pursue on appeal. Consequently, we

grant counsel’s petition to withdraw as counsel, and we affirm Baun’s

judgment of sentence.

On April 8, 2005, Baun pleaded guilty to aggravated indecent assault

of a child, 18 Pa.C.S. § 3125(b), and statutory sexual assault, 18 Pa.C.S.

§ 3122.1(a), charges that arose from his sexual assault of his neighbor’s

niece. On the former charge, he was sentenced to four to eight years’

imprisonment; for the latter, he was sentenced to ten years’ probation, to

run consecutively to the former sentence. As part of his sentence, Baun also

was forbidden for the duration of his sentence from contact with the victim

or her family, or unsupervised contact with anyone under the age of

eighteen.

On or about July 15, 2012, Baun was released to serve his

probationary sentence. On January 2, 2014, the trial court lodged a

detainer on Baun based upon information that Baun had violated the

conditions of his probation. Specifically, the Jefferson County Probation

Department alleged that Baun had “failed to comply with sex offender

protocol,” inter alia, by having pornographic material on his cell phone,

speaking regularly to his girlfriend’s minor children by telephone, and

possessing photographs of his girlfriend’s children, which Baun carried in his

wallet.

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On January 29, 2014, Baun, appearing pro se, waived his right to a

Gagnon I hearing2 and admitted that he had violated his probation as

alleged. Baun was remanded to jail pending completion of a pre-sentencing

investigation and on January 30, 2014, a Jefferson County public defender

entered his appearance on Baun’s behalf. On February 5, 2014, following a

Gagnon II hearing, the trial court revoked Baun’s probation and

resentenced him to two to ten years’ incarceration.3 On February 14, 2014,

Baun filed a motion for reconsideration of his sentence. The trial court

denied the motion by order entered on February 18, 2014.

On March 4, 2014, Baun timely filed the instant appeal. On March 6,

2014, the trial court directed Baun to file a concise statement of the errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Baun timely

complied. On March 25, 2014, the trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

Before this Court, Baun raises only one issue: “Whether the trial court

abused its discretion when it revoked Baun’s county-level probation and re-

sentenced him to serve a sentence of incarceration in [a] State Correctional

2 See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). 3 The trial court indicated that this sentence should run consecutively to a separate parole violation. This appeal concerns only the two- to ten-year sentence for his probation violation.

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Institution for a minimum of two (2) years to a maximum of ten (10) years

with credit for time served.” Brief for Baun at 3.

Because counsel for Baun proceeds pursuant to Anders and

Santiago, this Court first must pass upon counsel’s petition to withdraw

before reviewing the merits of the sentencing issue presented by Baun.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Prior to withdrawing as counsel under Anders, counsel must file a

brief that meets the requirements established by our Supreme Court in

Santiago. Pursuant thereto, the brief must provide the following

information:

(1) a summary of the procedural history and facts, with citations to the record;

(2) reference to anything in the record that counsel believes arguably supports the appeal;

(3) counsel’s conclusion that the appeal is frivolous; and

(4) 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.

Counsel also must provide a copy of the Anders brief to his client.

Attending the brief must be a letter that advises the client of his rights to

“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;

or (3) raise any points that the appellant deems worthy of the court’s

attention in addition to the points raised by counsel in the Anders brief.”

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Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007);

see Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).

Finally, to facilitate our review of counsel’s satisfaction of his obligations, he

must attach to his petition to withdraw the letter that he transmitted to his

client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.

Super. 2005).

Our review of counsel’s petition to withdraw and the accompanying

brief demonstrates that counsel has satisfied Santiago’s requirements.

Counsel has provided a procedural history detailing the events relevant to

this appeal with appropriate citations to the record. Brief for Baun at 4-5.

Counsel also has articulated Baun’s position and has analyzed the

information presented to the sentencing court in favor of his appeal with

appropriate citations to the record and case law. Ultimately, counsel has

concluded that Baun has no non-frivolous basis for challenging his sentence,

because the trial court sentenced him within the statutory limits for the

underlying conviction and there was no evidence of an abuse of discretion.

Id. at 8-9.

Counsel also has sent Baun a letter informing him that he has

identified no meritorious issues to pursue on appeal; that counsel has filed

an application to withdraw from Baun’s representation; and that Baun may

find new counsel or proceed pro se. Counsel has attached the letter to his

petition to withdraw, as required by Millisock. See Petition to Withdraw as

Counsel, 7/28/2014 (letter dated 7/24/2014). Accordingly, counsel has

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complied with Anders’ technical requirements. See Millisock, 873 A.2d

at 751.

We now must conduct an independent review of the record to

determine whether this appeal is, as counsel claims, wholly frivolous, or if

any meritorious issues may remain. Santiago, 978 A.2d at 355 (quoting

Anders, 386 U.S. at 744) (“[T]he court—not counsel—then proceeds, after a

full examination of all the proceedings, to decide whether the case is wholly

frivolous. If it so finds it may grant counsel’s request to withdraw . . . .”).

We now turn to the lone appealable issue identified by Anders

counsel. A claim that a sentence is excessive presents a challenge to the

discretionary aspects of sentence. Commonwealth v. Ahmad, 961 A.2d

884, 886 (Pa. Super. 2008). “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). To obtain review of the merits of a

challenge to the discretionary aspects of a particular sentence, an appellant

must include a Pa.R.A.P. 2119(f) statement in his or her brief.4 Therein,

4 In pertinent part, Rule 2119 provides as follows:

(f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall 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. The statement shall (Footnote Continued Next Page)

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

sentence imposed is not appropriate under the Sentencing Code.” McAfee,

849 A.2d at 274. A substantial question requires a demonstration that “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) (quoting Commonwealth v. Mouzon, 812 A.2d 617, 627

(Pa. 2002)). “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. (quoting Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc)) (emphasis in

Goggins).

The Rule 2119(f) statement enables this Court to determine whether

the appellant has raised a substantial question. Commonwealth v. Kiesel,

854 A.2d 530, 532 (Pa. Super. 2004). In the instant case, counsel has

provided such a statement, Brief for Baun at 6, but, at one sentence long, it

is perfunctory at best. However, if no objection is raised to a violation of

Rule 2119(f), this Court may ignore the violation. Id. at 533;

Commonwealth v. Raybuck, 915 A.2d 125, 127 n.3 (Pa. Super. 2006). _______________________ (Footnote Continued)

immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f).

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The Commonwealth, having elected not to file a brief in this matter, has

raised no objection to Baun’s failure to provide an adequate Rule 2119(f)

statement. Moreover, even if the Commonwealth had objected, we still

would be obliged to make an independent determination as to whether this

appeal is wholly frivolous. Commonwealth v. Wilson, 578 A.2d 523, 525

(Pa. Super. 1990). Consequently, we review Baun’s judgment of sentence

to determine whether it presents a substantial question regarding

excessiveness, and, if so, whether any such argument warrants the

preparation of an advocate’s brief by appointed counsel or vacatur of the

sentence.

Sentencing is a matter that is within the sound discretion of the trial

court, which will not be disturbed on appeal absent an abuse of that

discretion. Commonwealth v. Dykes, 541 A.2d 1, 6 (Pa. Super. 1988).

To constitute an abuse of discretion, a sentence must either exceed the

statutory limits or be patently excessive. Commonwealth v. White,

491 A.2d 252 (Pa. Super. 1985).

We have held as follows:

The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment—a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill[ ]will.

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Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (citations

and internal quotation marks omitted). “Our standard of review is limited to

determining the validity of the probation revocation proceedings and the

authority of the sentencing court to consider the same sentencing

alternatives that it had at the time of the initial sentencing.”

Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa. Super. 2006).

Upon revocation of probation, “the sentencing alternatives available to

the court shall be the same as were available at the time of initial

sentencing.” 42 Pa.C.S. § 9771. A court may impose a sentence of total

confinement for a probation revocation under the following circumstances:

(1) the defendant has been convicted of another crime; or

(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or

(3) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S. § 9771(c).

In this case, the trial court specifically violated Baun on his

probationary sentence for statutory sexual assault, classified as a second-

degree felony, 18 Pa.C.S. § 3122.1(a), for which he originally had been

sentenced to ten years’ probation. The maximum sentence for a second-

degree felony is ten years’ imprisonment. See 18 Pa.C.S. § 1103(2).

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In Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001),

this Court found no substantial question where the appellant had been

sentenced for two to five years’ imprisonment for a probation violation, with

the upper bound of his sentence reflecting the statutory maximum sentence

for the underlying conviction. See id. at 793. In this case, the trial court

sentenced Baun to a minimum sentence of two years, three years fewer

than the uppermost minimum it had discretion to impose. The court

imposed a maximum sentence consistent with the statutory maximum for

the underlying crime. However, in Coolbaugh, the appellant’s violations

were not technical; rather, the appellant had committed numerous crimes to

incur the revocation. Because this case involves technical violations, we will

assume arguendo that Baun can make out a substantial question, and we

will examine such merit as his challenge has.

The court imposed sentence after reviewing a pre-sentence

investigation; hearing a recommendation from Jefferson County Adult

Probation, which recommended precisely the sentence the court imposed;

viewing letters from Baun’s father and others in support of leniency; and

hearing from Baun in open court. The court then stated on the record its

reasons for imposing a two- to ten-year sentence:

Now, initially, I look at this case, it’s a felony sex case, you already did state time. And if I just got hit on the line with it, I would say you should do five to ten. Because you were in there, you hadn’t completed sex offender treatment, and you’re having sexual relations, pornographic material, and you’re having contact with minor children—all of which are violations.

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I reviewed the presentence report, considered your age, your background, your prior record, everything contained in that report. Understanding all of that, the recommendation is two to ten. Trying to weight out the fact that you’re a good employee, have a job, and [are] doing well to that extent, at least financially contributing on the outside, certainly are mitigating factors.

However, I mean, in a situation where you haven’t completed sex offender treatment—meaning you haven’t come to grips with your underlying violation—and you’re already planning to marry a woman who has minor children, I mean, I think looking at everything with violations on a sexual type of case are very serious.

So I do think that the recommendation . . . is appropriate, and I am going to sentence you to no less [than] two to ten years in a state correctional institution . . . .

Notes of Testimony, Gagnon II hearing, 2/5/2014, at 6-7. Based upon the

underlying history of this case and the trial court’s detailed explanation for

the sentence it imposed, we discern no abuse of the broad discretion vested

in the trial court when imposing sentence for a probation violation.

As set forth above, we have reviewed counsel’s Anders/Santiago

brief carefully, and find that it complies with the technical requirements

imposed by those precedents. We further find that counsel has taken all

steps necessary to ensure that his client’s interests are protected. We have

conducted an independent review of the record and conclude that counsel’s

characterization and analysis of the record are accurate, and that no non-

frivolous challenge to Baun’s judgment of sentence will lie. Moreover, our

review has revealed no other non-frivolous issues that merit consideration

on appeal.

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Judgment of sentence affirmed. Counsel’s petition to withdraw

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/19/2014

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