Com. v. Black, J.

• Court: Superior Court of Pennsylvania
• Decided: November 22, 2016
• Docket: 700 MDA 2016
• Status: Unpublished

Opinion

J-S80032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JOSEPH MICHAEL BLACK

Appellant No. 700 MDA 2016

Appeal from the Judgment Entered September 18, 2015 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000944-2015, CP-35-CR-0001216- 2014

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 22, 2016

Appellant, Joseph Michael Black, appeals from the September 18, 2015

judgment of sentence of forty-five to ninety-six months’ incarceration

followed by ten years of probation. Appellant challenges the discretionary

aspects of his sentence. Additionally, Appellant’s counsel, Donna M. DeVita,

Esq., seeks to withdraw her representation of Appellant pursuant to Anders

v. California, 87 S. Ct. 1936 (1967) and Commonwealth v. Santiago,

978 A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to

withdraw.

We adopt the following statement of facts, garnered from the trial

court’s opinion, which in turn is supported by the record. See Trial Court

Opinion (TCO), 6/29/16, at 1-6. As a result of a Lackawanna County

investigating grand jury, Appellant, a prison guard, was charged with

numerous crimes related to his sexual misconduct and mistreatment of J-S80032-16

female inmates in the Lackawanna County Prison. Five victims testified that

Appellant pressured or forced them into having sexual relations with him.

As a result of the grand jury’s recommendation, Appellant was arrested and

charged.

At criminal information CP-35-CR-001216-2014, Appellant was

charged with two counts of unlawful restraint/involuntary servitude, one

count of indecent exposure, four counts of official oppression, one count of

indecent assault, two counts of involuntary deviate sexual intercourse (IDSI)

– person substantially impaired, two counts of IDSI – threat of forcible

compulsion, and four counts of institutional sexual assault.1

At criminal information CP-35-CR-000944-2015, Appellant was

charged with one count of indecent exposure, two counts of official

oppression, one count of IDSI – forcible compulsion, one count of

institutional sexual assault, and one count of criminal attempt – rape by

forcible compulsion.2

On September 18, 2015, Appellant entered a guilty plea. At criminal

information 1216-2014, Appellant pleaded guilty to two counts of unlawful

restraint, one count of indecent exposure, and two counts of official

oppression. At criminal information 944-2015, Appellant pleaded guilty to

one count of indecent exposure and one count of official oppression. ____________________________________________

1 18 Pa.C.S. § 2902(a)(2), 3127(a), 5301(1), 3126(a)(1), 3123(a)(4), 3123(a)(2), 3124.2(a), respectively. 2 18 Pa.C.S. § 901(a).

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Appellant underwent a guilty plea colloquy and moved for an immediate

sentence, waiving his right to a presentence investigation.

The trial court sentenced Appellant to an aggregate sentence of forty-

five to ninety-six months’ incarceration followed by ten years of special

probation. Appellant timely filed a motion for reconsideration of sentence,

which was denied by operation of law.

Appellant timely filed a notice of appeal pro se; the trial court

appointed appellate counsel, who timely filed a concise statement pursuant

to Pa.R.A.P. 1925(b). The trial court issued a responsive opinion.

On August 8, 2016, appellate counsel filed in this Court an Anders

brief and application to withdraw as counsel. The brief sets forth the

following two issues Appellant seeks to raise on appeal:

A. Whether the sentences imposed were harsh and unreasonable and a manifest abuse of discretion?

B. Whether the sentencing court erred and committed an abuse of discretion when it imposed sentences in or above the aggravated ranges where there were no aggravating circumstance[s] on the official oppression charges, the indecent assault charges, and the unlawful restraint charges?

Ander’s Brief at 4.

When 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. Commonwealth v. Goodwin, 928 A.2d

287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on

direct appeal under Anders, counsel must file a brief that meets the

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requirements established by the Pennsylvania Supreme Court in Santiago,

namely:

(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.

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 right 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.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then may this Court “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

In the instant matter, Attorney De Vita’s Anders brief complies with

the above-stated requirements. Namely, she includes a summary of the

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relevant factual and procedural history, she refers to the portions of the

record that could arguably support Appellant’s claims, and she sets forth her

conclusion that Appellant’s appeal is frivolous. She explains her reasoning

and supports her rationale with citations to the record as well as pertinent

legal authority. Attorney De Vita avers she has supplied Appellant with a

copy of her Anders brief and a letter explaining the rights enumerated in

Nischan.3 Accordingly, counsel has complied with the technical

requirements for withdrawal. Thus, we may independently review the record

to determine if the issues Appellant raises are frivolous and to ascertain if

there are other non-frivolous issues he may pursue on appeal.

Both of Appellant’s issues challenge the discretionary aspects of his

sentence. In his first issue, Appellant argues that the trial court’s sentence

was harsh, unreasonable, and a manifest abuse of discretion. In his second

issue, Appellant argues that the court erred in imposing sentences above the

aggravated ranges where there were no aggravating circumstances on the

charges of official oppression, indecent assault, and unlawful restraint.

A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal. See Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.

2119(f). This Court conducts a four-part analysis to determine: (1) whether

Appellant has timely filed a notice of appeal; (2) whether the issue was ____________________________________________

3 Appellant has not filed a response to counsel’s Anders brief.

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properly preserved at sentencing or in a motion to reconsider and modify

sentence; (3) whether Appellant’s brief has a fatal defect; and (4) whether

there is a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).

A claim that the sentencing court imposed an unreasonable sentence

by sentencing outside the guideline ranges may raise a substantial question,

which is reviewable on appeal. See Commonwealth v. Rodda, 723 A.2d

212, 213-14 (Pa. Super. 1999). However, where the trial court sufficiently

states it reasons for imposing a sentence outside of the guidelines and

acknowledges its awareness of the guidelines on the record, an appellant

has not raised a substantial question. See Commonwealth v. Davis, 737

A.2d 792, 798 (Pa. Super. 1999); see also Commonwealth v. Gibson,

716 A.2d 1275, 1277 (Pa. Super. 1998).

Appellant’s brief contains the requisite statement of reasons relied

upon in support of appeal as required by 42 Pa.C.S. § 9781(b) and Pa.R.A.P.

2119(f). We acknowledge that he preserved his issue by arguing, in his

motion for reconsideration of sentence, that his sentence was illegal,

oppressive, and unjust. See Motion for Reconsideration of Sentence,

9/29/15, at 1-3 (citing trial court’s departure from the sentencing

guidelines).

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In the instant case, however, the sentencing court demonstrated its

awareness of the guidelines on the record. See Notes of Testimony (N. T.),

9/18/15, at 25-27. Further, it offered reasons for sentencing outside of the

guidelines, namely: the duration and length of time in which the crimes

occurred; the number of victims; the need to deter similarly situated

authority figures; the harm Appellant had done to the criminal justice

system as a whole; and that Appellant had taken advantage of helpless

women. These reasons are sufficient to sentence outside of the guidelines

and in the aggravated range. Thus, we decline to find that Appellant has

raised a substantial question.

In short, we agree with Attorney De Vita that Appellant’s two issues

are frivolous. We have independently reviewed the record, and find no other

issues of arguable merit that he could pursue on appeal. Accordingly, we

affirm Appellant’s judgment of sentence and grant counsel’s petition to

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/22/2016

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