Com. v. Corey, S.

Opinion

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

v. :

:

SAMUEL LEE COREY, : No. 141 MDA 2020 :

Appellant :

Appeal from the Judgment of Sentence Entered September 5, 2019, in the Court of Common Pleas of Bradford County Criminal Division at No. CP-08-CR-0000387-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

v. :

:

SAMUEL LEE COREY, : No. 142 MDA 2020 :

Appellant :

Appeal from the Judgment of Sentence Entered September 5, 2019, in the Court of Common Pleas of Bradford County Criminal Division at No. CP-08-CR-0000548-2019

BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 08, 2020

Samuel Lee Corey appeals from the September 5, 2019 judgments of

sentence entered by the Court of Common Pleas of Bradford County following

his guilty plea to one count each of homicide by vehicle while driving under

the influence (“DUI”), DUI: controlled substance – combination of alcohol and

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drugs (second offense), and DUI: controlled substance – impaired ability

(third offense).1 Patrick L. Beirne, Esq., filed an application to withdraw his

appearance on May 11, 2020, alleging that the appeal is frivolous,

accompanied by an Anders brief.2 After careful review, we grant

Attorney Beirne’s application to withdraw and affirm appellant’s judgments of

sentence.

The relevant factual and procedural history, as gleaned from the record,

are as follows. On February 4, 2019, appellant was involved in an automobile

accident that resulted in the deaths of Cierra Kirkner and her unborn child.

Following the accident, the Commonwealth charged appellant with, inter alia,

homicide by vehicle while DUI and DUI: controlled substances – combination

of alcohol and drugs (second offense) at Docket No. CP-08-CR-0000387-2019

(“Docket No. 387”). While these charges were pending, appellant was

charged with, inter alia, DUI: controlled substance – impaired ability (third

offense) at Docket No. CP-08-CR-0000548-2019 (“Docket No. 548”),

stemming from an incident that took place on June 10, 2019.

On July 23, 2019, appellant entered a guilty plea at Docket No. 387 to

homicide by vehicle while DUI and DUI: controlled substances – combination

1 75 Pa.C.S.A. §§ 3735(a)(1)(ii), 3802(d)(3), and 3802(d)(2), respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

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of alcohol and drugs (second offense).3 On September 5, 2019, appellant

entered a guilty plea at Docket No. 548 to DUI: controlled substance –

impaired ability (third offense). That same day, the trial court imposed an

aggregate sentence, at both docket numbers, of 8 years, 9 months to

25 years’ imprisonment. Appellant filed timely post-sentence motions on

September 13, 2019, which the trial court denied on December 20, 2019.

Appellant filed timely notices of appeal on January 15 and 17, 2020, in

compliance with our supreme court’s directive in Commonwealth v. Walker,

185 A.3d 969 (Pa. 2018), and its progeny. The trial court ordered appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and appellant timely complied. On March 4, 2020, the trial

court filed statements in lieu of an opinion pursuant to Pa.R.A.P. 1925(a) at

each trial court docket number. On May 11, 2020, Attorney Beirne filed an

Anders brief and accompanying application to withdraw his appearance. On

September 23, 2020,4 this court entered a judgment order remanding the

case because it was “unclear whether counsel enclosed copies of the Anders

brief and accompanying petition to withdraw as counsel with his undated

letter to appellant, as required.” (Judgment order, 9/23/20 at 4; see also

Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super. 2007), citing

3Appellant also entered a guilty plea to aggravated assault of an unborn child. See 18 Pa.C.S.A. § 2606(a). The plea to this count was withdrawn on September 5, 2019. (Notes of testimony, 9/5/19 at 10.)

4 The judgment order was filed October 6, 2020.

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Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super. 2005).)

Moreover, counsel only filed a petition to withdraw at Docket No. 387. (See

judgment order, 9/23/20 at 4.) Counsel was directed to “comply with the

dictates of Anders and its progeny.” (Id.)

The appeals in these cases were consolidated by this court on October 3,

2020. On October 27, 2020, counsel filed a petition to withdraw at both

Docket Nos. 387 and 548, attaching to each petition a letter dated October 26,

2020, properly advising appellant of his rights as required by Millisock. Each

petition to withdraw also averred that counsel:

sent to [a]ppellant via first class mail at his last known address, a copy of the instant petition and a copy of the brief filed in this case. In addition, a letter was sent explaining [a]ppellant’s right to forward any additional argument and/or to retain new counsel to represent him.

Petition to withdraw, 10/27/20 at unnumbered 2 ¶ 5. Counsel having

complied with our order, we proceed to address counsel’s petition to withdraw.

A request by appointed counsel to withdraw pursuant to Anders and

Santiago gives rise to certain requirements and obligations, for both

appointed counsel and this court. See Commonwealth v. Flowers, 113

A.3d 1246, 1248 (Pa.Super. 2015).

These requirements and the significant protection they provide to an Anders appellant arise because a criminal defendant has a constitutional right to a direct appeal and to counsel on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.Super. 2007). This

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[c]ourt has summarized these requirements as follows:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this [c]ourt’s attention.

Woods, 939 A.2d at 898 (citations omitted).

There are also requirements as to the precise content of an Anders brief:

[T]he Anders brief that accompanies court-appointed counsel’s petition to withdraw . . . 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

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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.

Id. at 1248. If this [c]ourt determines that appointed counsel has met these obligations, it is then our responsibility “to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” Id. at 1248. In so doing, we review not only the issues identified by appointed counsel in the Anders brief, but examine all of the proceedings to “make certain that appointed counsel has not overlooked the existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Our review of Attorney Beirne’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of the

foregoing requirements. We note that counsel has also furnished a copy of

the Anders brief to appellant; advised him of his right to retain new counsel,

proceed pro se, or bring any issues he deems pertinent to this court’s

attention; and filed with this court a copy of the letter sent to appellant as

required under Millisock. See also Commonwealth v. Daniels, 999 A.2d

590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set forth

the new requirements for an Anders brief, . . . the holding did not abrogate

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the notice requirements set forth in Millisock that remain binding legal

precedent.”). Appellant did not respond to Attorney Beirne’s Anders brief.

As Attorney Beirne has complied with all of the requirements set forth above,

we conclude that counsel has satisfied the procedural requirements of

Anders.

Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v.

McClendon, 434 A.2d 1184, 1187 (Pa. 1981). Therefore, we now turn to the

merits of appellant’s appeal.

Attorney Beirne raises the following issue on appellant’s behalf:

Did the trial court abuse its discretion in imposing a sentence at the top of the aggravated range?

Anders brief at 4.

[T]he proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. . . . [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but

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requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.

The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.

[Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)].

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, [] 909 A.2d 303 ([Pa.] 2006) (internal citations omitted). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the

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sentence imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, [] 831 A.2d 599 ([Pa.] 2003).

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.Super. 2007). A substantial question exists “only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Sierra, supra at 912-913.

As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.Super. 2006). An appellant must articulate the reasons the sentencing court’s actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010).

Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements for challenging the discretionary

aspects of his sentence. First, appellant timely filed his notice of appeal

pursuant to Pa.R.A.P. 902 and 903. Second, he properly preserved the issue

in post-sentence motions filed on September 13, 2019. The sentencing court

denied appellant’s motions on December 20, 2019. Third, Attorney Beirne

included a Rule 2119(f) statement in his Anders brief. (Anders brief at 12.)

We must now determine whether appellant has raised a substantial question.

This court has recognized that an allegation of sentencing court error by

imposing an aggravated range sentence raises a substantial question.

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Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa.Super. 2019), citing

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007) (en banc).

Here, appellant alleges that his sentence was “unduly harsh.” (Anders brief

at 15.) Accordingly, we find that a substantial question has been raised, and

we have jurisdiction to consider appellant’s discretionary aspects of sentencing

claim.

As noted above, we review the trial court’s sentencing determination for

an abuse of discretion. See Moury, 992 A.2d at 169. This court has held

that, “When a [sentencing] court imposes an aggravated . . . sentence, it shall

state the reasons on the record . . . .” Commonwealth v. Mrozik, 213 A.3d

273, 278 (Pa.Super. 2019), quoting 204 Pa.Code § 303.13(c).

Here, the record reflects that the trial court provided the following

explanation for imposing an aggravated sentence:

In terms of the offense and the sentence, there is a mandatory five[-]year sentence of incarceration. As I said before[,] the range is five to six years. Given the fact that the law really does not provide for a crime as to the child, I do believe that if there [were] ever a circumstance where an aggravated range sentence was appropriate, this would be it, to in some way take account for the fact an unborn child’s life was terminated far too early.

....

Now, with respect to the DUI, that has a twelve to eighteen[-]month[] standard range. Again, the fact that this DUI occurred after this accident is grounds for, again, an aggravated sentence at the high end of the aggravated range which would be a twenty-one[- ]month sentence or one year and nine months. The

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law requires the seven[-]year maximum, I believe, to be imposed. And so that second sentence will be [] one year and nine month[s] to seven year[s], such that the overall aggregate sentence will be eight years [and] nine months, a maximum sentence of twenty-five years.

Notes of testimony, 9/5/19 at 31; see also trial court order, 9/5/19 at 1-2.

We, therefore, find that the record supports Attorney Beirne’s

assessment that the appeal is frivolous because the record demonstrates that

the trial court did not abuse its discretion when it imposed appellant’s

sentence.

Moreover, our independent review of the entire record reveals no

additional non-frivolous claims. Accordingly, we grant Attorney Beirne’s

application to withdraw and affirm appellant’s judgments of sentence.

Application to withdraw granted. Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/8/2020