J-S10035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ARTHUR J. DUBBS IV
Appellant No. 1871 EDA 2014
Appeal from the Judgment of Sentence August 14, 2012 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005912-2011
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
Appellant No. 1872 EDA 2014
Appeal from the Judgment of Sentence August 14, 2012 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005591-2011
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
Appellant No. 1873 EDA 2014
Appeal from the Judgment of Sentence August 14, 2012 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005267-2012 J-S10035-15
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
Appellant No. 1874 EDA 2014
Appeal from the Judgment of Sentence August 14, 2012 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005268-2012
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 04, 2015
Appellant, Arthur J. Dubbs IV, appeals nunc pro tunc from the
judgment of sentence entered in the Bucks County Court of Common Pleas,
following his open guilty pleas to multiple counts of criminal conspiracy,
burglary, criminal trespass, theft by unlawful taking or disposition, and
related offenses.1 We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this appeal are as follows.
In November and December of 2010, Appellant and his cohorts committed a
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1 18 Pa.C.S.A. §§ 903, 3502, 3503, 3921, respectively.
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*Retired Senior Judge assigned to the Superior Court.
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string of burglaries throughout Bucks County. The Commonwealth charged
Appellant with multiple counts of burglary and related offenses at four (4)
different docket numbers. On August 10, 2012, the court conducted a guilty
plea hearing. At No. 5591 of 2011, Appellant pled guilty to three (3) counts
of conspiracy and one (1) count each of burglary, criminal trespass, and
theft by unlawful taking or disposition. At No. 5912 of 2011, Appellant pled
guilty to two (2) counts each of burglary, theft by unlawful taking or
disposition, criminal trespass, and receiving stolen property and one (1)
count of criminal mischief.
The court conducted a second guilty plea hearing on August 14, 2012.
At No. 5267 of 2012, Appellant pled guilty to one (1) count each of burglary,
criminal mischief, and criminal attempt. At No. 5268 of 2012, Appellant pled
guilty to two (2) counts each of burglary, theft by unlawful taking or
disposition, and criminal mischief and one (1) count of conspiracy. In
exchange for Appellant’s pleas, the Commonwealth agreed to withdraw
additional charges. The Commonwealth also recommended that Appellant’s
sentences run concurrently with a related federal sentence he was already
serving. The court accepted the guilty pleas, and Appellant immediately
proceeded to sentencing.
At No. 5591 of 2011, the court sentenced Appellant to concurrent
terms of six (6) to twelve (12) years’ imprisonment, followed by two (2)
years’ probation, for one count each of burglary and conspiracy. The court
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imposed no further penalty for Appellant’s remaining convictions. At No.
5912 of 2011, the court sentenced Appellant to concurrent terms of five (5)
to ten (10) years’ imprisonment for two counts of burglary. The court
imposed no further penalty for Appellant’s remaining convictions. At No.
5267 of 2012, the court sentenced Appellant to four and one-half (4½) to
nine (9) years’ imprisonment for one count of burglary. The court imposed
no further penalty for Appellant’s remaining convictions. At No. 5268 of
2012, the court sentenced Appellant to concurrent terms of four and one-
half (4½) to nine (9) years’ imprisonment, followed by two (2) years’
probation, for two counts of burglary and one count of conspiracy. The court
imposed no further penalty for Appellant’s remaining convictions.
Significantly, the court ordered the sentences at all docket numbers to run
concurrently with each other. The court also ordered the sentences to run
concurrently with Appellant’s federal sentence. Thus, the court imposed an
aggregate sentence of six (6) to twelve (12) years’ imprisonment, followed
by two (2) years’ probation.2
Appellant timely filed a motion for reconsideration of sentence on
August 20, 2012. In it, Appellant complained that the state sentences would
hinder his ability to enter into certain programs at the federal prison.
2 The court acknowledged that Appellant’s individual sentences each exceeded the sentencing guidelines. (N.T. Plea/Sentencing Hearing, 8/14/12, at 30-32).
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Further, Appellant argued that mitigating circumstances warranted
reconsideration of the sentences. The court conducted a hearing on the
post-sentence motion on October 11, 2012. On November 20, 2012, the
court filed an amended sentencing order “to reflect that the sentences be
served concurrent with and not consecutive to the FEDERAL sentence
[Appellant] is already serving.” (Order, entered 11/20/12, at 1). The court
also ordered that Appellant serve his state sentences at a federal facility.
The court denied Appellant’s post-sentence motion in all other respects.
Appellant did not file a direct appeal.
On August 9, 2013, Appellant timely filed a pro se petition pursuant to
the Post Conviction Relief Act (“PCRA”).3 The court appointed counsel, who
filed an amended petition on April 4, 2014. In the amended petition,
Appellant argued plea counsel was ineffective for failing to file a notice of
appeal. On June 5, 2014, the court granted PCRA relief and reinstated
Appellant’s direct appeal rights nunc pro tunc.
Appellant timely filed notices of appeal nunc pro tunc at each docket
number on June 6, 2014. On July 15, 2014, the court ordered Appellant to
file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b). On July 21, 2014, appellate counsel filed a Rule
1925(c)(4) statement of intent to file a brief pursuant to Anders v.
3 42 Pa.C.S.A. §§ 9541-9546.
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California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant
subsequently filed an application to consolidate the appeals, which this Court
granted on August 4, 2014.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders and Commonwealth v. Santiago, 602
Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
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representation:
Neither Anders nor McClendon[4] requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
* * *
Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw. The
petition states counsel performed a thorough review of the record and
concluded the appeal would be wholly frivolous. Counsel also supplied
Appellant with a copy of the withdrawal petition, the brief, and a letter
explaining Appellant’s right to proceed pro se or with new privately retained ____________________________________________
4 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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counsel to raise any additional points Appellant deems worthy of this Court’s
attention. In his Anders brief, counsel provides a summary of the
procedural history of the case. Counsel refers to facts in the record that
might arguably support the issues raised on appeal and offers citations to
relevant law. The brief also provides counsel’s conclusion that the appeal is
wholly frivolous. Thus, counsel has substantially complied with the
requirements of Anders and Santiago.
As Appellant has filed neither a pro se brief nor a counseled brief with
new privately retained counsel, we review this appeal on the basis of the
issues raised in the Anders brief:
SHOULD APPELLANT’S COUNSEL BE PERMITTED TO WITHDRAW HIS APPEARANCE BECAUSE THE APPEAL IS WHOLLY FRIVOLOUS?
WAS [APPELLANT’S] SENTENCE UNREASONABLY HARSH?
(Anders Brief at 5).
On appeal, Appellant contends each of his sentences for the burglary
and conspiracy convictions exceeds the aggravated range of the sentencing
guidelines. Appellant argues the court imposed unduly harsh sentences,
because it did not adequately consider Appellant’s evidence of mitigating
circumstances. Appellant insists his sentences are unreasonable. Appellant
concludes the court abused its discretion by imposing manifestly excessive
sentences. Appellant challenges the discretionary aspects of his sentences.
See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating
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claim that sentence is manifestly excessive challenges discretionary aspects
of sentencing).5
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[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, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
5 “[W]hile a guilty plea which includes sentence negotiation ordinarily precludes a defendant from contesting the validity of his…sentence other than to argue that the sentence is illegal or that the sentencing court did not have jurisdiction, open plea agreements are an exception in which a defendant will not be precluded from appealing the discretionary aspects of the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s pleas were “open” as to sentencing. (See N.T. Plea/Sentencing Hearing at 13.) Thus, Appellant can challenge the discretionary aspects of his sentences.
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separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the
reasons relied upon for allowance of appeal ‘furthers the purpose evident in
the Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision
to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). 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 912-13 (quoting Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)). “A claim that the sentencing court
imposed an unreasonable sentence by sentencing outside the guideline
ranges raises a ‘substantial question’ which is reviewable on appeal.”
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Commonwealth v. Davis, 737 A.2d 792, 798 (Pa.Super. 1999).
In the instant case, Appellant’s Rule 2119(f) statement preserved his
claim regarding the court’s purported error at sentencing.6 Appellant’s
challenge appears to raise a substantial question as to the discretionary
aspects of his sentences. See id.
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
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. Coulverson, 34 A.3d 135, 143 (Pa.Super. 2011)
(quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999)
(en banc)).
“[A] court is required to consider the particular circumstances of the
offense and the character of the defendant.” Commonwealth v. Griffin,
804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct. ____________________________________________
6 Appellant did not object at sentencing, and his post-sentence motion did not raise the claim advanced in the Rule 2119(f) statement. Nevertheless, in light of counsel’s motion to withdraw, we will address Appellant’s contention. See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (explaining Anders requires review of issues otherwise waived on appeal).
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2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. “If the court imposes a sentence outside of
the sentencing guidelines, it must provide a written statement setting forth
the reasons for the deviation and the failure to do so is grounds for re-
sentencing.” Commonwealth v. Walls, 592 Pa. 557, 567, 926 A.2d 957,
963 (2007). A court’s “on-the-record statement of reasons for deviation
stated in the defendant’s presence” satisfies the requirement of a
contemporaneous written statement. Commonwealth v. Styles, 812 A.2d
1277, 1278 (Pa.Super. 2002).
“[U]nder the Sentencing Code an appellate court is to exercise its
judgment in reviewing a sentence outside the sentencing guidelines to
assess whether the sentencing court imposed a sentence that is
‘unreasonable.’” Walls, supra at 568, 926 A.2d at 963. In making this
“unreasonableness” inquiry, this Court must consider four factors:
§ 9781. Appellate review of sentence
(d) Review of record.—In reviewing the record the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
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(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d)(1)-(4).
In Walls, supra, our Supreme Court said, “the concept of
unreasonableness” is “inherently a circumstance-dependent concept that is
flexible in understanding and lacking precise definition.” Id. at 568, 926
A.2d at 963.
Thus, given its nature, we decline to fashion any concrete rules as to the unreasonableness inquiry for a sentence that falls outside of applicable guidelines under Section 9781…. We are of the view, however, that the Legislature intended that considerations found in Section 9721 inform appellate review for unreasonableness. That is, while a sentence may be found to be unreasonable after review of Section 9781(d)’s four statutory factors, in addition a sentence may also be unreasonable if the appellate court finds that the sentence was imposed without express or implicit consideration by the sentencing court of the general standards applicable to sentencing found in Section 9721, i.e., the protection of the public; the gravity of the offense in relation to the impact on the victim and the community; and the rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b). Moreover, even though the unreasonableness inquiry lacks precise boundaries, we are confident that rejection of a sentencing court’s imposition of sentence on unreasonableness grounds would occur infrequently, whether the sentence is above or below the guideline ranges, especially when the unreasonableness inquiry is conducted using the proper standard of review.
Id. at 568-69, 926 A.2d at 964 (emphasis added).
Instantly, Appellant waived his right to a pre-sentence investigation
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(“PSI”) report and proceeded immediately to sentencing following the court’s
acceptance of the guilty pleas. Prior to the imposition of the sentences, the
Commonwealth noted that the federal court system had already sentenced
Appellant to seven (7) years’ imprisonment on other convictions. When
asked for a sentencing recommendation, the Commonwealth stated, “All
sentences are concurrent but not conterminous with the federal sentences.”
(See N.T. Plea/Sentencing Hearing at 13.) The Commonwealth indicated
there were mitigating factors in Appellant’s favor, as Appellant had worked
with local police and a violent-crimes task force after his arrest.
The Commonwealth also detailed the factual history of Appellant’s
2010 crime spree. Specifically, Appellant and his cohorts burglarized three
private residences and three commercial properties. The coconspirators
stole approximately $29,000.00 worth of personal property and U.S.
currency while causing at least $3,400.00 in property damage. Appellant’s
crime spree also included related offenses at other docket numbers that are
not at issue on appeal. The related offenses involved Appellant’s attempts
to elude police after the issuance of an arrest warrant.
Due to the absence of a PSI report, the Commonwealth summarized
Appellant’s criminal history. In addition to his federal conviction, a New
Jersey court convicted Appellant of a possessory drug offense in 1994. In
Pennsylvania, Appellant’s criminal record included a 1995 conviction for
possession of a small amount of marijuana, a 1995 conviction for possession
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of a controlled substance with intent to deliver (“PWID”), a 1999 conviction
for possession of a controlled substance, and a 2003 conviction for PWID.
After receiving the criminal history, the court permitted Appellant to
allocute. Appellant explained that he had attempted to attend a technical
school upon his release from a prior state incarceration. Appellant
struggled, however, and he began to sell drugs. Thereafter, Appellant
committed the burglaries at issue, which he described as “the biggest
mistake” of his life. (Id. at 24). Appellant pleaded with the court for
leniency, asking for “one last shot.” (Id.) At that point, defense counsel
reiterated the mitigating circumstance of Appellant’s cooperation with law
enforcement, including certain grand jury testimony. Consequently, defense
counsel asked the court “to give a sentence concurrent with one he’s serving
and allow [Appellant] to take advantage of the programs that the federal
system offers by keeping the sentence max below” seven (7) years. (Id. at
28).
The court responded:
I can’t…grant you what your attorney has [requested]. Let me tell you, the testimony I heard was significant in terms of―the other day in terms of being helpful to you.[7] Probably the most significant testimony I’ve ever heard in that regard.
7 The court received much of Appellant’s mitigation evidence at the August 10, 2012 hearing. The certified record does not include a transcript of the August 10, 2012 hearing.
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However, I have a crime spree in front of me, so―and let me tell you, but for what I heard the other day your sentence would be twenty years.
That’s exactly what I would give you, because in any way you cut it, if I give you a couple years on each case, looking at the non-merging offenses, I would easily be at twenty years, even if I sentence you in the mitigated range.
What I’m going to do, though, is I’m going to give you a sentence that will―the intent is that it will add up to six to twelve…which is longer than your federal sentence but, certainly…less than what I would have given you.
(Id. at 29-30).
Further, the court gave Appellant the opportunity to provide input as
to his sentencing preferences:
THE COURT: So I can…give [Appellant] consecutive sentences that total the six [years], but I think it would be better for him if I just give you six to twelve on the cases and run them all concurrent, which would be outside the guidelines….
For instance, in 5268 [of 2012], if I sentenced him in the standard range, as to counts one and two and three, consecutively, that would give you six years just on that case, and that doesn’t include the criminal mischief count.
So do you want me to do them consecutively or do you want me to sentence him outside the guidelines concurrently? Do you have a preference?
[DEFENSE COUNSEL]: As long as the sentence runs concurrent with the federal sentence.
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THE COURT: Yes, but I’ve been told sometimes there’s a benefit in the state for there not to be consecutive sentences, for it just to be concurrent.
[DEFENSE COUNSEL]: I think there’s a benefit if it’s concurrent versus consecutive, because he would have to make parole on each case before he could begin serving case number two.
(Id. at 30-32). Ultimately, Appellant requested the imposition of concurrent
sentences as described, and the court honored Appellant’s wishes. (Id. at
32).
Here, the court stated with particularity its reasons for imposing
Appellant’s sentences. Regarding the “reasonableness” of Appellant’s
sentences, the court attempted to balance Appellant’s cooperation with law
enforcement against the magnitude of his crime spree. After weighing the
nature and circumstances of the offenses against the mitigating factors, the
court imposed concurrent sentences in excess of the guidelines.
Significantly, the court’s own statements reveal it would have imposed a
harsher sentence but for the quality of Appellant’s cooperation with law
enforcement.
The court observed Appellant and evaluated his mitigation evidence.
The court also announced its findings at the time of sentencing. Under these
circumstances, the court’s upward departure from the sentencing guidelines
was reasonable under Section 9781(d). See Walls, supra. Moreover,
Appellant actually consented to the court’s departure from guidelines in
exchange for the benefit of concurrent sentences. Based upon the
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foregoing, we see no cause to disturb the judgment of sentence. See
Coulverson, supra. Accordingly, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/4/2015
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