Com. v. Gates, K.

• Court: Superior Court of Pennsylvania
• Decided: October 17, 2022
• Docket: 148 WDA 2022
• Status: Unpublished

Opinion

J-S29027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEIYAUVE ROBERT MONTREL GATES : : Appellant : No. 148 WDA 2022

Appeal from the Judgment of Sentence Entered November 7, 2018 In the Court of Common Pleas of Erie County Criminal Division at CP-25-CR-0001534-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEIYAUVE ROBERT MONTREL GATES : : Appellant : No. 158 WDA 2022

Appeal from the Judgment of Sentence Entered November 7, 2018 In the Court of Common Pleas of Erie County Criminal Division at CP-25-CR-0001632-2018

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 17, 2022

Keiyauve Robert Montrel Gates (Appellant) appeals nunc pro tunc from

the judgments of sentence entered following his guilty plea to criminal attempt

(homicide) and firearms not to be carried without a license (docket number

1632 of 2018), and theft by unlawful taking and criminal trespass (docket

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* Retired Senior Judge assigned to the Superior Court. J-S29027-22

number 1534 of 2018).1, 2 Additionally, Appellant’s counsel (Counsel) has filed

an application to withdraw from representation and a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), and Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant Counsel’s

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

The trial court summarized the procedural history as follows:

[Appellant’s] convictions stem from two separate incidents. In the first, [Appellant] stole a number of valuable items from a residence, including a television, video games and several articles of clothing. In the second, [Appellant] shot his victim in the abdomen. On September 14, 2018, [Appellant] pled guilty to [the above charges]. On November 8, 2018, [the trial court] sentenced [Appellant] to an aggregate sentence of 13 to 27 years of incarceration. The following day, [Appellant] sent a handwritten request for sentence modification to the Clerk of Courts, which was docketed and forwarded to his attorney. On November 19, 2018, his attorney filed a formal motion for sentence modification. That same day, [the trial court] denied the post-sentence motion.

[Appellant] did not timely seek a direct appeal of his convictions, but in 2019[,] he initiated an action under the Post- Conviction Relief Act (PCRA)[, see 42 Pa.C.S.A. §§ 9541-9546,] to reinstate his direct [appeal] rights nunc pro tunc, which ultimately proved successful. [The PCRA court] reinstated his direct [appeal] rights on December 3, 2021, and [Appellant] eventually filed a direct appeal on February 3, 2022. On February 2, 2022, the court ordered [Appellant] to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After an

1 See 18 Pa.C.S.A. §§ 901(a), 6106(a)(1), 3921(a), 3503(a)(1)(ii).

2 Appellant filed separate notices of appeal at each docket pursuant to Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018) (when “one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeals must be filed”).

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extension of time to file the 1925(b) statement was granted, [Appellant] timely complied with that directive on March 24, 2022.

Trial Court Opinion, 4/1/22, at 1-2 (footnotes omitted, citation added).

Counsel subsequently filed in this Court an application to withdraw and

Anders brief.

We first address Counsel’s application to withdraw from representation.

See Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010)

(“When presented with an Anders brief, this Court may not review the merits

of the underlying issues without first passing on the request to

withdraw.”). Before being permitted to withdraw pursuant to Anders,

counsel must satisfy certain procedural and substantive requirements.

Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017).

Procedurally, counsel must:

(1) 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; (2) furnish a copy of the [Anders] brief to the defendant; and (3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.

Id. at 359 (citation omitted). Substantively, 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

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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 has complied with Anders’ procedural and substantive

requirements. Counsel states in her application that she found Appellant’s

issues to be frivolous after conducting a thorough review of the

record. Petition to Withdraw as Counsel, 6/23/22, at ¶ 3. Counsel also

attached to her application a copy of the letter she sent to Appellant, in which

Counsel advised Appellant he could retain private counsel or proceed pro

se.3 Id. (attachment); see also Commonwealth v. Millisock, 873 A.2d

748, 752 (Pa. Super. 2005). Counsel also provided Appellant with a copy of

the Anders brief, which summarizes the facts and procedural history,

includes an issue that could arguably support Appellant’s appeal, and explains

Counsel’s assessment of why the issue is frivolous. Accordingly, we review

the issue presented in Counsel’s Anders brief. We also conduct an

independent review of the record to determine whether Appellant’s appeal is

wholly frivolous. See Santiago, 978 A.2d at 358; see also Commonwealth

v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc) (“part and

parcel of Anders is our Court’s duty to review the record to [e]nsure no issues

of arguable merit have been missed or misstated.”).

Counsel’s Anders brief presents the following issue:

3 Appellant did not file a response.

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Whether [A]ppellant’s sentence is manifestly excessive, clearly unreasonable and inconsistent with the objectives of the Sentencing Code?

Anders Brief at 3.

“The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Fuentes, 272 A.3d 511, 519 (Pa. Super.

2022). An appellant has sufficiently complied with the four-part test when:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). To present a substantial question, an appellant must set “forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing

process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)

(citation omitted).

Appellant timely filed a notice of appeal, preserved his sentencing claim

in a post-sentence motion, and Counsel included in her Anders brief the

requisite Pa.R.A.P. 2119(f) statement. See Anders Brief at 4-6. We

therefore examine whether Appellant has raised a substantial question.

“A substantial question exists only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

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inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015) (en banc) (citation omitted). “[W]e cannot look beyond the statement

of questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Provenzano, 50

A.3d 148, 154 (Pa. Super. 2012).

In his statement of questions presented, Appellant claims his sentence

is manifestly excessive and contrary to the Sentencing Code. Anders Brief at

3. In his Rule 2119(f) statement, Appellant recognizes the trial court imposed

a standard-range sentence for criminal attempt – homicide (120-240 months)

and a consecutive, mitigated-range sentence for firearms not to be carried

without a license (36-84 months). Anders Brief at 5. Appellant also

acknowledges the trial court’s concurrent, standard-range sentences for his

convictions of theft by unlawful taking (12-18 months) and criminal trespass

(16-84 months). Appellant recites the provisions of 42 Pa.C.S.A. § 9781, but

does not explain how his sentence violated the Sentencing Code or the

fundamental norms underlying the sentencing process. Dodge, supra.

Under these circumstances, Appellant does not present a substantial question.

See Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012) (stating

a defendant presents a substantial question when he “sets forth a plausible

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argument that the sentence violates a provision of the sentencing code or is

contrary to the fundamental norms of the sentencing process.”).

Despite the deficiency in Appellant’s Rule 2119(f) statement, we review

his sentencing issue. See Santiago, supra at 354 n.5 (“when counsel meets

his or her 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.’” (citation

omitted)). We recognize:

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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation

omitted).

“When imposing a sentence, the sentencing court must consider the

factors set out in 42 [Pa.C.S.A.] § 9721(b), that is, the protection of the public,

gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant. And, of course, the court must consider

the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d 843, 847-

48 (Pa. Super. 2006).

A sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question, but the record as a whole must reflect the

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sentencing court’s consideration of the facts of the crime and character of the offender.

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (citation

Our review discloses that the sentencing court had the benefit of a

presentence investigation report (PSI). See N.T., 11/7/18, at 30 (trial court

indicating it considered the PSI). When a PSI exists, we “presume that the

sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.”4 Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super.

2018) (citation omitted); see also Commonwealth v. Watson, 228 A.3d

928, 936 (Pa. Super. 2020) (sentencing courts “are under no compulsion to

employ checklists or any extended or systematic definitions of their

punishment procedure”; where a PSI exists, “the sentencing court’s discretion

should not be disturbed” (citation omitted)).

The trial court did not abuse its discretion by sentencing Appellant to

standard/mitigated range sentences. See Commonwealth v. Moury, 992

A.2d 162, 171 (Pa. Super. 2010) (“where a sentence is within the standard

range of the guidelines, Pennsylvania law views the sentence as appropriate

4 In addition, the trial court considered Appellant’s IQ of 86, his eighth-grade education, and testimony from Appellant’s grandmother regarding his difficult childhood. N.T., 11/7/18, at 9, at 14-15.

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under the Sentencing Code”). Also, we discern no abuse of discretion in the

trial court’s imposition of consecutive sentences for Appellant’s convictions of

attempted homicide and possessing a firearm without a license. See

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)

(“Pennsylvania law 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.”). Appellant’s challenge to

the discretionary aspects of his sentences warrants no relief and is frivolous.

Finally, our independent review discloses no other, nonfrivolous issues.

We therefore grant Counsel’s application to withdraw and affirm Appellant’s

judgment of sentence.

Application to withdraw granted. Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/17/2022

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