J-S12038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PETER M. BENNETHUM, JR., : : Appellant : No. 1636 MDA 2018
Appeal from the Judgment of Sentence Entered August 31, 2018 in the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005108-2017
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 09, 2019
Peter M. Bennethum, Jr. (“Bennethum”), appeals from the judgment of
sentence imposed following his conviction of criminal trespass. See 18
Pa.C.S.A. § 3503(a)(1)(ii). Additionally, Samuel J. Mills, Esquire (“Attorney
Mills”), has filed a Petition to Withdraw as counsel, and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967). We grant Attorney
Mills’s Petition to Withdraw, and affirm Bennethum’s judgment of sentence.
On August 31, 2018, following a bench trial, Bennethum was convicted
of criminal trespass. The trial court sentenced Bennethum to time served (339
days) to 23 months in prison, followed by 4 years of probation. Bennethum
filed a timely post-sentence Motion, seeking, inter alia, modification of his
sentence. The trial court denied Bennethum’s post-sentence Motion.
Bennethum filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal. On January J-S12038-19
13, 2019, Attorney Mills filed a Petition to Withdraw as counsel, and an
accompanying Anders Brief.
In the Anders Brief, Attorney Mills presents the following issue for our
review:
Whether the trial court erred and abused its discretion in imposing a sentence which included four (4) years of consecutive probation following a sentence of time[]served (339 days) to twenty-three (23) months and is excessive in nature, where the trial court failed to consider [Bennethum’s] rehabilitative needs and the protection of society?
Anders Brief at 7.
We must first determine whether Attorney Mills has complied with the
dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc) (stating that “[w]hen faced with a purported Anders brief, this Court
may not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”) (citation omitted). Pursuant to
Anders, when an attorney believes that an appeal is frivolous and wishes to
withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the [appellate] court.
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Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief 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. 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).
In the instant case, Attorney Mills has complied with the requirements
set forth in Anders by indicating that he reviewed the record and determined
that Bennethum’s appeal would be wholly frivolous. Further, the record
contains a copy of the letter that Attorney Mills sent to Bennethum, informing
him of Attorney Mills’s intention to withdraw, and advising him of his right to
proceed pro se, retain counsel, and file additional claims.1 Finally, Attorney
Mills’s Anders Brief meets the standards set forth in Santiago. Because
Attorney Mills has complied with the procedural requirements for withdrawing
from representation, we will independently review the record to determine
whether Bennethum’s appeal is, in fact, wholly frivolous.
____________________________________________
1 Bennethum did not file a pro se appellate brief, nor did he retain alternate counsel for this appeal.
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Bennethum argues that the trial court imposed an excessive sentence
by directing Bennethum to serve a consecutive 4-year probationary sentence,
without considering his rehabilitative needs and the protection of the public.
See Anders Brief at 18-19.
Bennethum challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. See Commonwealth v. Hill, 66
A.3d 359, 363 (Pa. Super. 2013). Prior to reaching the merits of a
discretionary sentencing issue,
[this Court conducts] a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (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. Moury, 992 A.2d 162, 170 (quotation marks and some
citations omitted).
Here, Bennethum filed a timely Notice of Appeal, preserved his
sentencing claim in a timely post-sentence Motion, and included a separate
Rule 2119(f) Statement in the Anders Brief. Additionally, Bennethum’s claim
raises a substantial question for our review. See Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (concluding that a challenge
to the imposition of consecutive sentences as unduly excessive, together with
a claim that the trial court failed to consider an appellant’s rehabilitative
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needs, presents a substantial question). Thus, we will consider the merits of
his claim.
Our standard of review of a challenge to the discretionary aspects of a
sentence 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.
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J-S12038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PETER M. BENNETHUM, JR., : : Appellant : No. 1636 MDA 2018
Appeal from the Judgment of Sentence Entered August 31, 2018 in the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005108-2017
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 09, 2019
Peter M. Bennethum, Jr. (“Bennethum”), appeals from the judgment of
sentence imposed following his conviction of criminal trespass. See 18
Pa.C.S.A. § 3503(a)(1)(ii). Additionally, Samuel J. Mills, Esquire (“Attorney
Mills”), has filed a Petition to Withdraw as counsel, and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967). We grant Attorney
Mills’s Petition to Withdraw, and affirm Bennethum’s judgment of sentence.
On August 31, 2018, following a bench trial, Bennethum was convicted
of criminal trespass. The trial court sentenced Bennethum to time served (339
days) to 23 months in prison, followed by 4 years of probation. Bennethum
filed a timely post-sentence Motion, seeking, inter alia, modification of his
sentence. The trial court denied Bennethum’s post-sentence Motion.
Bennethum filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal. On January J-S12038-19
13, 2019, Attorney Mills filed a Petition to Withdraw as counsel, and an
accompanying Anders Brief.
In the Anders Brief, Attorney Mills presents the following issue for our
review:
Whether the trial court erred and abused its discretion in imposing a sentence which included four (4) years of consecutive probation following a sentence of time[]served (339 days) to twenty-three (23) months and is excessive in nature, where the trial court failed to consider [Bennethum’s] rehabilitative needs and the protection of society?
Anders Brief at 7.
We must first determine whether Attorney Mills has complied with the
dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc) (stating that “[w]hen faced with a purported Anders brief, this Court
may not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”) (citation omitted). Pursuant to
Anders, when an attorney believes that an appeal is frivolous and wishes to
withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the [appellate] court.
-2- J-S12038-19
Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief 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. 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).
In the instant case, Attorney Mills has complied with the requirements
set forth in Anders by indicating that he reviewed the record and determined
that Bennethum’s appeal would be wholly frivolous. Further, the record
contains a copy of the letter that Attorney Mills sent to Bennethum, informing
him of Attorney Mills’s intention to withdraw, and advising him of his right to
proceed pro se, retain counsel, and file additional claims.1 Finally, Attorney
Mills’s Anders Brief meets the standards set forth in Santiago. Because
Attorney Mills has complied with the procedural requirements for withdrawing
from representation, we will independently review the record to determine
whether Bennethum’s appeal is, in fact, wholly frivolous.
____________________________________________
1 Bennethum did not file a pro se appellate brief, nor did he retain alternate counsel for this appeal.
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Bennethum argues that the trial court imposed an excessive sentence
by directing Bennethum to serve a consecutive 4-year probationary sentence,
without considering his rehabilitative needs and the protection of the public.
See Anders Brief at 18-19.
Bennethum challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. See Commonwealth v. Hill, 66
A.3d 359, 363 (Pa. Super. 2013). Prior to reaching the merits of a
discretionary sentencing issue,
[this Court conducts] a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (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. Moury, 992 A.2d 162, 170 (quotation marks and some
citations omitted).
Here, Bennethum filed a timely Notice of Appeal, preserved his
sentencing claim in a timely post-sentence Motion, and included a separate
Rule 2119(f) Statement in the Anders Brief. Additionally, Bennethum’s claim
raises a substantial question for our review. See Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (concluding that a challenge
to the imposition of consecutive sentences as unduly excessive, together with
a claim that the trial court failed to consider an appellant’s rehabilitative
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needs, presents a substantial question). Thus, we will consider the merits of
his claim.
Our standard of review of a challenge to the discretionary aspects of a
sentence 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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).
The Sentencing Code provides that “the [trial] court shall follow the
general principle that 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). The trial court
must also consider the Sentencing Guidelines. See id.; see also
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating
that “[w]hen imposing a sentence, the [trial] court is required to consider the
sentence ranges set forth in the Sentencing Guidelines….”). Further,
regarding probation, “Section 9754 of the Sentencing Code only mandates
that a sentencing court keep a term of probation under the maximum term a
defendant could be confined.” Commonwealth v. Crump, 995 A.2d 1280,
1284 (Pa. Super. 2010); see also 42 Pa.C.S.A. § 9754.
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Here, at the time of sentencing, Bennethum’s counsel stated that
Bennethum had been receiving mental health treatment since approximately
2003, and argued that Bennethum could continue with treatment without
court supervision. See N.T., 8/31/18, at 30. Bennethum also exercised his
right of allocution, at which time he stated that the court could “trust [him]
on not having to have a probationary tail and to actually do extraordinary
things for the community and also for [himself] and [his] family.” Id. at 31.
Moreover, the trial court indicated, on the record, that it had considered the
Sentencing Guidelines,2 the Commonwealth’s recommendation, and
statements made by Bennethum and his counsel. See id. at 31-32. In its
Opinion, the trial court noted that “by his own admission[, Bennethum] broke
into the home of the victim …, which is a very serious crime.” Trial Court
Opinion, 11/16/18, at 3. Further, the trial court determined that the
consecutive probationary term “best provided for the protection of the public
and the rehabilitative needs of [Bennethum].” Id.
Our review confirms that the trial court properly considered all of the
relevant statutory factors before sentencing Bennethum. See 42 Pa.C.S.A.
§ 9721(b); see also Sheller, supra. Additionally, Bennethum’s probationary
term is well below the statutory maximum sentence for criminal trespass, a ____________________________________________
2 Although Bennethum does not specifically challenge his sentence of time served, we note that the offense gravity score for criminal trespass is 4, and Bennethum’s prior record score was 0. Thus, the Sentencing Guidelines recommend a standard-range sentence of restorative sanctions to 3 months in prison, plus or minus 3 months for the aggravated/mitigated range. See 204 Pa. Code § 303.16(a).
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second-degree felony. See 42 Pa.C.S.A. § 9754; see also 18 Pa.C.S.A.
§ 1103(2) (authorizing a maximum sentence of 10 years in prison for a
second-degree felony). Accordingly, we conclude that the trial court did not
abuse its discretion by ordering Bennethum to serve a 4-year probationary
term, consecutive to his sentence of time served. Thus, Bennethum’s
sentencing challenge fails.
Finally, our independent review of the record discloses no additional
non-frivolous issues that Bennethum could raise on appeal. We therefore
grant Attorney Mills’s Petition to Withdraw, and affirm Bennethum’s judgment
of sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 05/09/2019
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