Com. v. Dennis, J.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2020
• Docket: 26 MDA 2020
• Status: Unpublished

Opinion

J-S28016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JON DENNIS : : Appellant : No. 26 MDA 2020

Appeal from the Judgment of Sentence Entered November 20, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001356-2019, CP-35-CR-0001435-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JON DENNIS : : Appellant : No. 27 MDA 2020

Appeal from the Judgment of Sentence Entered November 20, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001435-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JON DENNIS : : Appellant : No. 87 MDA 2020

Appeal from the Judgment of Sentence Entered November 20, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001356-2019 J-S28016-20

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 11, 2020

Appellant, Jon Dennis, appeals from the judgment of sentence entered

on November 20, 2019, as made final by the denial of Appellant’s

post-sentence motion on November 26, 2019. In this direct appeal,

Appellant’s court-appointed counsel has filed both a petition for leave to

withdraw as counsel and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009). We conclude that Appellant’s counsel has complied with the

procedural requirements necessary to withdraw. Moreover, after

independently reviewing the record, we conclude that the instant appeal is

wholly frivolous. We, therefore, grant counsel’s petition for leave to withdraw

and affirm Appellant’s judgment of sentence.

The pertinent facts and procedural history of this case are as follows.

On July 24, 2019, Appellant entered a guilty plea at CP-35-CR-0001435-2019

(19-CR-1435) to one count of disorderly conduct, 18 Pa.C.S.A. § 5503, and

one count of false identification to law enforcement, 18 Pa.C.S.A. § 4914. The

events that gave rise to the guilty pleas entered at 19-CR-1435 occurred on

April 3, 2019, at which time Appellant resisted removal from his vehicle and

gave a false identity to law enforcement officers after he was informed that

he was the subject of a criminal investigation. In addition, on July 24, 2019,

Appellant pled guilty at CP-35-CR-0001356-2019 (19-CR-1356) to one count

of delivery of a controlled substance, 35 P.S. § 780-113(a)(30). The events

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that lead to Appellant’s guilty plea at 19-CR-1356 took place on June 3, 2019,

when police officials observed Appellant deliver a quantity of

methamphetamine to a confidential informant in exchange for United States

currency.

The trial court convened a sentencing hearing on November 20, 2019.

At the hearing, counsel for Appellant advised the court about Appellant’s

struggles with drug addiction and mental health issues. In addition, counsel

introduced two character letters submitted on Appellant’s behalf that

addressed Appellant’s commitment to recover from drug use. After hearing

arguments from counsel, considering a presentence investigation (“PSI”)

report, and reviewing Appellant’s past contacts with law enforcement,

including his failure to comply with the terms of a sentence of intermediate

punishment, the trial court imposed sentence. At 19-CR-1356, the court

ordered Appellant to serve 18 to 36 months in state confinement for delivering

a controlled substance. At 19-CR-1435, the court sentenced Appellant to

serve four to 12 months in state prison for falsely identifying himself to law

enforcement. Lastly, the court directed that Appellant serve two to 12 months

in state incarceration for disorderly conduct. All of the sentences, which fell

toward the upper end of the standard guideline range for each offense, were

set to run consecutively to each other. Hence, Appellant received an

aggregate term of 24 to 60 months of state confinement.

Appellant filed a post-sentence motion alleging that his sentence was

excessive on November 25, 2019. The trial court denied the motion on

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November 26, 2019. On December 20, 2019, Appellant’s counsel filed a single

notice of appeal with both trial court docket numbers in its caption, which was

docketed in this Court at 26 MDA 2020. On December 26, 2019, counsel filed

a second notice of appeal, with only docket number 19-CR-1435 in its caption,

which was docketed in this Court at 27 MDA 2020. On January 10, 2020,

counsel filed a third notice of appeal, titled “Amended Notice of Appeal,” with

only trial court docket number 19-CR-1356 in its caption. The notice was

docketed in this Court at 87 MDA 2020.

Appellant filed the appeals docketed in this Court at 26 MDA 2020 and

27 MDA 2020 within 30 days of the denial of his post-sentence motion. As

such, these appeals were timely and we possess jurisdiction over the appeals

at those dockets. See Pa.R.A.P. 903(a) (notice of appeal must be filed within

30 days of entry of order from which appeal is taken); see also Pa.R.Crim.P.

720(A)(2)(a) (notice of appeal must be filed within 30 days of entry of order

deciding timely post-sentence motion). Moreover, since Appellant filed

notices of appeal at each trial court docket pertaining to his November 20,

2019 judgment of sentence, his appeal is compliant with Commonwealth v.

Walker, 185 A.3d 969 (Pa. 2018) (holding that “where a single order resolves

issues arising on more than one docket, separate notices of appeal must be

filed for each of those cases” pursuant to Pa.R.A.P. 341 and its note).1 The

____________________________________________

1On July 9, 2020, an en banc panel of this Court decided Commonwealth v. Johnson, 2020 WL 3869723 (Pa. Super. 2020) (en banc) concerning the

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appeal docketed in this Court at 87 MDA 2020 was filed more than 30 days

after the disposition entered on Appellant’s post-sentence motion. Because

that appeal is untimely, we lack jurisdiction in that case and direct that the

appeal be quashed.2

On appeal, the Anders brief raises a single claim:

Whether the trial court abused its discretion when it imposed unreasonable, harsh, and excessive sentences on all of the charges?

Anders Brief at 4 (complete capitalization omitted).

Before reviewing the merits of this appeal, this Court must first

determine whether appointed counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements. First, counsel must “petition the court for

leave to withdraw stating that, after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous.” ____________________________________________

proper application of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) in light of Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019) (reading Walker as a mandate to quash appeal unless notice of appeal contains only one trial court docket number). The Johnson Court expressly overruled Creese, supra and held that as long as the appellant files a separate notice of appeal at each trial court docket, “[t]he fact that the notices [of appeal] contained [more than one trial court docket number] is of no consequence.” Id. at *11. Accordingly, we decline to quash the instant appeal.

2 Both Appellant and the trial court have complied with the requirements set forth at Pa.R.A.P. 1925.

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Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which

counsel:

(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state[s] 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. Finally, counsel must furnish a copy of the

Anders brief to his or her client and advise the client “of [the client’s] right to

retain new counsel, proceed pro se or raise any additional points worthy of

this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.

Super. 2007).

If counsel meets all of the above 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; see also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to review “the

entire record with consideration first of the issues raised by counsel. ... [T]his

review does not require this Court to act as counsel or otherwise advocate on

behalf of a party. Rather, it requires us only to conduct a review of the record

to ascertain if[,] on its face, there are non-frivolous issues that counsel,

intentionally or not, missed or misstated. We need not analyze those issues

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of arguable merit; just identify them, deny the motion to withdraw, and order

counsel to analyze them.”). It is only when all of the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

In this case, counsel complied with all of the above procedural

obligations.3 We must, therefore, review the entire record and analyze

whether this appeal is, in fact, wholly frivolous. Our review begins with the

claim raised in the Anders brief.

Essentially, Appellant challenges the trial court’s decision to impose his

sentences at each docket consecutively, rather than concurrently.

Specifically, Appellant claims that the imposition of consecutive sentences at

the high end of the standard guidelines range for all three offenses was

unwarranted under the facts of this case. Anders Brief at 7. In addition,

counsel points out that Appellant largely served his prior sentences without

incident and that his crimes stemmed from his addiction to narcotics. Id.

Appellant’s issue implicates the discretionary aspects of sentencing. As

this Court previously explained:

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:

3 On August 4, 2020, Appellant filed a pro se response to counsel’s letter and the Anders brief. The response did not raise a specific challenge to counsel’s submissions.

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We 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal

case citations omitted).

Appellant has fulfilled the first, second, and third requirements of the

above-mentioned four-part test. A challenge to the imposition of consecutive

sentences, however, does not usually raise a substantial question. Indeed,

Under 42 Pa.C.S.A. § 9721, the court has discretion to impose sentences consecutively or concurrently and, ordinarily, a challenge to this exercise of discretion does not raise a substantial question. Commonwealth v. Pass, 914 A.2d 442, 446–447 (Pa. Super. 2006). The imposition of consecutive, rather than concurrent sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment. Id. (holding challenge to court's imposition of sentence of six [] to [23] months['] imprisonment and sentence of one [] year probation running consecutive, did not present substantial question). Compare [Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009)] (holding imposition of consecutive sentences totaling 58 ½ to 124 years['] imprisonment for [37] counts of theft-related offenses presented a substantial question because total sentence was essentially life sentence for [a 42-year-old] defendant who committed non-violent offenses with limited financial impact).

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

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Following our decision in Dodge, we have made clear that a challenge

to the consecutive nature of standard sentences does not always raise a

substantial question. See Commonwealth v. Gonzalez–Dejesus, 994 A.2d

595, 598 (Pa. Super. 2010) (imposition of consecutive as opposed to

concurrent sentences does not ordinarily raise a substantial question that

justifies allowance of appeal). Instead, we examine such claims on a

case-by-case basis. Id. This Court has determined that “the key to resolving

the preliminary substantial question inquiry is whether the decision to

sentence consecutively raises the aggregate sentence to, what appears on its

face to be, an excessive level in light of the criminal conduct at issue in the

case.” Id. at 598–599. Based upon our review, Appellant's sentence is not

facially excessive in light of his criminal conduct.

Our conclusion is based primarily on the trial court’s imposition of

standard-range sentences following its review of a PSI report. “[W]here the

sentencing court imposed a standard-range sentence with the benefit of a

[PSI] report, we will not consider the sentence excessive.” Commonwealth

v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citation omitted). “In those

circumstances, 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.” Id. (citation and

internal quotation omitted). In this case, the trial court had the benefit of a

PSI report before fashioning standard range, consecutive sentences. Finally,

even if we were to find that Appellant raised a substantial question, we would

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not agree that the trial court abused its discretion in imposing the sentence

challenged in this case.

Accordingly, based upon all of the foregoing, we conclude that Appellant

has not raised a substantial question. Even if he had, we would conclude that

his discretionary sentencing claim is devoid of merit. Thus, we agree with

counsel that Appellant’s claims are frivolous.

In addition, after an independent review of the entire record, we see

nothing that might arguably support this appeal. The appeal is, therefore,

wholly frivolous. Accordingly, we affirm Appellant’s judgment of sentence and

grant counsel’s petition for leave to withdraw.

Petition for leave to withdraw from representation granted. Judgment of

sentence affirmed. Appeal docketed at 87 MDA 2020 is quashed. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/11/2020

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