Com. v. Burbage, O.

• Court: Superior Court of Pennsylvania
• Decided: December 4, 2015
• Docket: 3053 EDA 2014
• Status: Unpublished

Opinion

J-S70005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

OLIVER MERVIN BURBAGE,

Appellant No. 3053 EDA 2014

Appeal from the Judgment of Sentence September 22, 2014 in the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0005041-2012

BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 04, 2015

Appellant, Oliver Mervin Burbage, appeals from the judgment of

sentence imposed on September 22, 2014, following his resentencing after a

jury conviction of escape.1 Appellant’s counsel has filed a brief and a

petition to withdraw under Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the

appeal is wholly frivolous. We affirm the judgment of sentence and grant

counsel’s petition to withdraw.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. § 5121. J-S70005-15

We take the underlying facts and procedural history in this matter

from this Court’s previous decision on direct appeal and our review of the

certified record.

This case involves an incident that occurred on June 22, 2011, on the 800 block of McDowell Avenue, in Chester, Delaware County. Pennsylvania State Trooper Robert Kirby testified that at approximately 11:00 a.m. that morning, he had conducted an interview regarding a separate matter in nearby Eddystone. Trooper Kirby was aware that a felony warrant [dated June 15, 2011] had been issued by Bucks County for Burbage’s arrest. Trooper Kirby was also familiar with Burbage based upon prior investigations of other criminal activity in which Trooper Kirby had met Burbage face-to-face. At approximately 11:30 a.m., Trooper Kirby finished his interview in Eddystone and decided to drive by 835 McDowell Avenue, the address where Burbage’s girlfriend was believed to reside.

Trooper Kirby testified that as he approached 835 McDowell Avenue, he spotted Burbage in the front yard and a four-year-old boy on the porch. Trooper Kirby stopped his unmarked patrol car approximately 50 feet from Burbage, exited the vehicle with his police baton, and walked toward Burbage. Trooper Kirby was not in full uniform, but he was wearing his badge in plain view on his belt. Once Trooper Kirby was within 20 to 25 feet of Burbage, he declared, “State Police, get on the ground, you’re under arrest.” He yelled several times for Burbage to get on the ground. Instead of obeying the commands, Burbage stared at Trooper Kirby and took a stance as if he might draw a weapon. In response, Trooper Kirby drew his firearm and pointed it in Burbage’s direction. Burbage then fled from Trooper Kirby and entered the residence at 835 McDowell Avenue.

Trooper Kirby indicated that he was not assisted by any other police officers, and since the four-year-old boy was unattended on the porch, he called 911 to obtain backup before entering the residence. The residences on this block are connected row houses, preventing easy access to the rear of the homes from the front. Once additional officers arrived, Trooper Kirby entered the house and found the boy’s parents, but Burbage had already exited the house. Although Trooper Kirby

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did not successfully detain Burbage, officers eventually took Burbage into custody on August 8, 2011.

* * *

The aforementioned testimony was presented at a one-day jury trial on January 29, 2013, after which the jury convicted Burbage of the offense of escape. On March 21, 2013, [after review of the Pre-Sentence Investigation Report (PSI)] the court sentenced him to three to six years’ incarceration [to be served consecutively to any other sentence Appellant was then serving], with credit for time served. . . .

(Commonwealth v. Burbage, No. 1219 WDA 2014, unpublished

memorandum at *1-*3 (Pa. Super. filed June 3, 2014) (record citations and

footnotes omitted)).

At sentencing, by agreement of the parties, the trial court gave

Appellant credit for time served from August 8, 2011 through March 21,

2013. (See Trial Court Opinion, 11/12/14, at 1). On April 17, 2013,

Appellant filed a timely notice of appeal. While the appeal was pending, the

trial court received notice from the Department of Corrections (DOC) stating

that the credit for time served was improper because DOC had already

credited that time against a sentence from another county. (See N.T.

Resentencing, 9/22/14, at 4-5). On October 9, 2013, without notice to

Appellant and without a hearing, the trial court amended the sentence,

stripping Appellant of credit for time served. (See Notice of Appeal,

11/06/13, at unnumbered page 1; Commonwealth v. Burbage, No. 3072

EDA 2013, unpublished memorandum *3 (Pa. Super. filed August 11, 2014)

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(Burbage II)). Appellant filed a second timely appeal, challenging the

legality of the resentencing.

On June 3, 2014, this Court affirmed the original judgment of

sentence. Appellant did not seek leave to appeal to the Pennsylvania

Supreme Court. On August 11, 2014, this Court reversed the judgment of

sentence and remanded for a new sentencing hearing. (See Burbage II,

supra at *11).

On September 22, 2014, the trial court held a new sentencing hearing.

The court sentenced Appellant to a term of incarceration of not less than

three nor more than six years of incarceration less fifteen days credit for

time served. (See N.T. Resentencing, 9/22/14, at 9). Thus, the sentence

was identical to the original sentence with the exception of the amount of

credit for time served. The instant, timely appeal followed. On October 23,

2014, the trial court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). On November 6, 2014,

counsel filed a statement of intent to file an Anders2 brief. See Pa.R.A.P.

1925(c)(4). On November 12, 2014, the trial court filed an opinion. See

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

On appeal, the Anders brief raises the following question for our

review: ____________________________________________

2 See Anders, supra; see also, Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).

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Was the sentence imposed on [Appellant] harsh and excessive under the circumstances?

(Anders Brief, at 3).

Appellant’s counsel has petitioned for permission to withdraw and has

submitted an Anders brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed

counsel who seeks to withdraw from representing an appellant on direct

appeal on the basis that the appeal is frivolous 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. . . .

Santiago, supra at 361. When we receive an Anders brief, we first rule on

the petition to withdraw and then review the merits of the underlying issues.

See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).

In addition, “[p]art and parcel of Anders is our Court’s duty to review the

record to insure no issues of arguable merit have been missed or misstated.”

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

In the instant matter, counsel has substantially complied with all the

requirements of Anders and Santiago. Specifically, he has petitioned this

Court to withdraw because “counsel has found no issues to raise in this

appeal and he believes this appeal to be wholly frivolous.” (Application to

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Withdraw Appearance, 3/13/15, at unnumbered page 1). In addition, after

his review of the record, counsel filed a brief with this Court that provides a

summary of the procedural history and facts with citations to the record,

refers to any facts or legal theories that arguably support the appeal, and

explains why he believes the appeal is frivolous. (See Anders Brief, at 6-

10). Lastly, he has attached, as an exhibit to his petition to withdraw, a

copy of the letter sent to Appellant giving notice of his rights, and including a

copy of the Anders brief and the petition. (See Application to Withdraw

Appearance, 3/13/15, at unnumbered page 3); see also Commonwealth

v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005). Appellant has not filed

a response. Because counsel has substantially complied with the dictates of

Anders, Santiago, and Millisock, we will examine the issues set forth in

the Anders brief that counsel believes have arguable merit. See Garang,

supra at 240-41.

The Anders brief challenges the discretionary aspects of Appellant’s

sentence, claiming that the sentence was harsh and excessive, the trial court

failed to consider mitigating factors, and the trial court unreasonably

imposed a consecutive sentence. (See Anders Brief, at 6-10). Preliminarily,

we note, “[i]ssues challenging the discretionary aspects of sentence must be

raised in a post-sentence motion or by presenting the claim to the trial court

during the sentencing proceedings. Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Commonwealth v. McAfee,

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849 A.2d 270, 275 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa.

2004) (citations and quotations marks omitted). Appellant neither raised

any objections to the sentence at sentencing nor filed a post-sentence

motion challenging the discretionary aspects of sentence. Therefore, we

would ordinarily find the claim waived. However, Anders requires that we

review claims that we would ordinarily find waived. See Commonwealth v.

Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citations omitted). Thus, we

will not find Appellant’s claim waived on this basis.

The right to appeal the discretionary aspects of a sentence is not

absolute. See McAfee, supra at 274. When an appellant challenges the

discretionary aspects of the sentence imposed, he must present “a

substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to the fundamental norms underlying the sentencing scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we have

found that a substantial question exists. See Commonwealth v. Goggins,

748 A.2d 721, 727 (Pa. Super. 2000), appeal denied, 759 A.2d 920 (Pa.

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2000). “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. (emphases in original).

We note that Appellant has not included a Rule 2119(f) statement in

his brief. (See Anders Brief, supra). “A failure to include the Rule 2119(f)

statement does not automatically waive an appellant’s argument; however,

we are precluded from reaching the merits of the claim when [the appellee]

lodges an objection to the omission of the statement.” Commonwealth v.

Roser, 914 A.2d 447, 457 (Pa. Super. 2006), appeal denied, 927 A.2d 624

(Pa. 2007) (citation omitted). Here, the Commonwealth did not file a brief

and thus has not objected to the absence of the Rule 2119(f) statement,

therefore, we can review Appellant’s claim.

Our standard of review is 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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(citation omitted).

Here, Appellant simply states, “[Appellant] was convicted of a crime so

trivial that his sentence of three to six years’ incarceration to be served

consecutively can be called draconian.” (Anders Brief, at 6). Appellant

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argues that his escape attempt consisted of disobeying a police order to lie

down; that he was apprehended within a matter of weeks of the incident; no

one was harmed because of his action; there was no damage to property

and, despite his lengthy criminal record, he was a contributing member of

society. (See id. at 6-7).

We note that a bald claim of an excessive sentence does not generally

raise a substantial question. See Commonwealth v. Dodge, 77 A.3d

1263, 1269 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).

However, this Court has held that a claim of excessiveness in conjunction

with a claim that the sentencing court did not consider mitigating factors

presents a substantial question. See Gonzalez, supra at 731 (citing

Dodge, supra at 1272); see also Commonwealth v. Zeigler, 112 A.3d

656, 662 (Pa. Super. 2015). We will therefore address the merits of

Appellant’s claim.

In the instant matter, the sentencing court had the benefit of a PSI.

(See N.T. Sentencing, 3/21/13, at 15). We have stated that:

[w]hen imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. . . . Where the sentencing court had the benefit of a presentence investigation report [PSI], we can assume the sentencing court was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.

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Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (internal

quotation marks and citations omitted). Here, the sentencing court stated

that it had reviewed the PSI and imposed a sentence that was within the

standard range of the guidelines. (See N.T. Sentencing, 3/21/13, at 15).

Additionally, Appellant has not demonstrated that his sentence was

manifestly excessive because the sentencing court failed to consider

mitigating factors. As discussed above, at sentencing, the trial court

acknowledged the PSI, and considered the statements of counsel. (See id.

at 6, 15). The trial court balanced this against Appellant’s lengthy criminal

history dating back to 1986. (See id. at 15). The trial court thereafter

imposed a standard range sentence. (See id.).

Clearly, the gist of Appellant’s argument is not that the sentencing

court did not consider the relevant sentencing factors, but rather that the

court did not weigh them as much in his favor as he wished. (See Anders

Brief, at 6-10). Our review of the record does not show that the sentencing

court abused its discretion or that it entered a manifestly unreasonable

sentence. See Zeigler, supra at 662 (holding sentence not manifestly

unreasonable where sentencing court considered PSI, details of crime, and

explained reasons for sentence); see also Moury, supra at 171.

Appellant’s claim lacks merit.

Appellant also claims that the sentencing court unreasonably imposed

a consecutive sentence. (See Anders Brief, at 6). Pennsylvania law

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“affords the sentencing court discretion to impose its sentence concurrently

or consecutively to other sentences being imposed at the same time or to

sentences already imposed. Any challenge to the exercise of this discretion

ordinarily does not raise a substantial question.” Commonwealth v. Pass,

914 A.2d 442, 446–47 (Pa. Super. 2006) (citation omitted); see also

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) (holding

that appellant is not entitled to “volume discount” by having sentences run

concurrently). But see Commonwealth v. Dodge, 957 A.2d 1198 (Pa.

Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009) (imposition of

standard range sentences consecutively on thirty-seven counts of theft-

related offenses for aggregate sentence of 58½ to 124 years’ imprisonment

constituted virtual life sentence and, thus, was so manifestly excessive as to

raise substantial question).

“Thus, in our view, the key to resolving the preliminary substantial

question inquiry is whether the decision to sentence consecutively raises the

aggregate sentence to, what appears upon its face to be, an excessive level

in light of the criminal conduct at issue in the case.” Commonwealth v.

Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010), appeal denied, 14 A.3d

825 (Pa. 2011). Here, Appellant makes no showing or claim that his case is

similar to the virtual life sentence at issue in Dodge. Because he has not

done so, his claim that the trial court unreasonably imposed a consecutive

sentence does not raise a substantial question.

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Appellant’s issues do not merit relief. Further, this Court has

conducted an independent review of the record as required by Anders and

Santiago and finds that no non-frivolous issues exist.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/4/2015

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