Com. v. Gelatt, A.

• Court: Superior Court of Pennsylvania
• Decided: December 19, 2024
• Docket: 434 EDA 2024
• Status: Unpublished

Opinion

J-S32024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ADAM LUIS GELATT : : Appellant : No. 434 EDA 2024

Appeal from the Judgment of Sentence Entered January 5, 2024 In the Court of Common Pleas of Wayne County Criminal Division at No: CP-64-CR-0000319-2023

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ADAM LUIS GELATT : : Appellant : No. 435 EDA 2024

Appeal from the Judgment of Sentence Entered January 5, 2024 In the Court of Common Pleas of Wayne County Criminal Division at No: CP-64-CR-0000320-2023

BEFORE: LAZARUS, P.J., STABILE, J., and KING, J.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 19, 2024

Appellant, Adam Luis Gelatt, appeals from the judgments of sentence

imposed by the Court of Common Pleas of Wayne County (trial court) as

amended on January 5, 20241, following his guilty plea to biosecurity

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1 The trial court originally entered a judgment of sentence on January 4, 2024;

however, the trial court amended its sentence on January 5, 2024, to reflect Appellant’s time credit. J-S32024-24

trespasser – fail to perform measures (CP-64-CR-319-2023) and simple

assault (CP-64-CR-320-2023). Counsel has filed an application to withdraw

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We agree

with counsel and the trial court that Appellant’s challenge to the discretionary

aspects of his sentence are without merit. Therefore, we affirm the judgments

of sentence and grant counsel’s application to withdraw.

On November 30, 2023, Appellant pleaded guilty to simple assault and

biosecurity trespasser on two unrelated dockets. In exchange, the

Commonwealth withdrew two counts of loitering and prowling at nighttime,

two counts of theft by unlawful taking, burglary, disorderly conduct, criminal

mischief, and an additional count of biosecurity trespasser on docket number

CR-319-2023, and two additional counts of simple assault, defiant trespass,

and criminal trespass on docket number CR-320-2023. Sentencing was

deferred for the completion of a presentence investigative report.

Following a hearing on January 4, 2024, Appellant was sentenced to 6

to 36 months on the biosecurity trespasser conviction, and a consecutive 12

to 24 months on the simple assault conviction. Appellant filed a post-sentence

motion to modify his sentence, which was denied by the trial court. On

January 30, 2024, Appellant filed a timely notice of appeal. Both Appellant

and the trial court complied with Pa.R.A.P. 1925. Thereafter, counsel filed an

application to withdraw and an Anders brief, concluding that this appeal was

frivolous.

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“When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007). To withdraw pursuant to Anders, counsel must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has determined that the appeal would be frivolous;

(2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a “no merit” letter or amicus curiae brief; and

(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court’s attention.

Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). The

Anders brief must comply with the following requirements:

(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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “This Court

first considers the issues raised by counsel in the Anders brief and determines

whether they are in fact frivolous.” Commonwealth v. Weitzel, 304 A.3d

1219, 1224 (Pa. Super. 2023) (citing Commonwealth v. Yorgey, 188 A.3d

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1190, 1196-1197 (Pa. Super. 2018) (en banc)). “[I]f the Court finds all of

those issues frivolous, this Court conducts a review of the record to ascertain

if, on its face, there are other issues of arguable merit overlooked by counsel.”

Id.

After review, we conclude counsel has satisfied the first requirement of

Anders by filing a motion to withdraw, wherein he asserted that he made a

conscientious review of the record and determined the appeal would be

frivolous. Likewise, counsel has satisfied the second requirement by filing an

Anders brief that complies with the requirements set forth in Santiago,

supra. Lastly, counsel has attached to the motion to withdraw a copy of the

letter sent to Appellant advising of his rights and enclosing a copy of the

Anders brief. Therefore, we conclude that counsel has complied with the

Anders requirements. We therefore may now proceed to undertake an

independent examination of the record to determine whether the issues raised

by counsel are frivolous, and then whether our independent review of the

entire record reveals any other non-frivolous issues overlooked by counsel.

Weitzel, supra.

Appellant raises a sole issue for our review: whether the trial court

erred by sentencing Appellant to an unduly harsh and excessive sentence.

Appellant’s Brief, at 9. He argues that by running his sentences consecutively

the trial court imposed an unduly harsh and excessive sentence. Id. at 17.

Thus, Appellant challenges the discretionary aspects of his sentence.

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Challenges to the discretionary aspects of sentencing are not entitled to

appellate review as a matter of right. Commonwealth v. Clemat, 218 A.3d

944, 959 (Pa. Super. 2019). Rather, such challenges are considered petitions

for allowance of appeal. Id. Thus, an appellant must invoke our jurisdiction

by satisfying a four-part test: (1) whether appellant has filed a timely notice

of appeal; (2) whether the issue was properly preserved at sentencing or in a

motion to reconsider and modify sentence; (3) whether appellant’s brief has

a fatal defect pursuant to 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. Id.

Here, Appellant filed a timely notice of appeal, preserved the issue in a

motion to modify sentence and his brief does not have a fatal defect.

Therefore, we must determine whether Appellant raises a substantial question

that the sentence appealed from is not appropriate under the Sentencing

Code.

A substantial question will be found where an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015).

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Appellant argues that the imposition of consecutive sentences was

unduly harsh and excessive. Appellant’s Brief, at 17. Generally, a trial court’s

exercise of discretion in imposing a sentence concurrently or consecutively

does not raise a substantial question. Commonwealth v. Swope, 123 A.3d

333, 338 (Pa. Super. 2015). A substantial question may be found where a

defendant “receives consecutive sentences within the guideline ranges if the

case involves circumstances where the application of the guidelines would be

clearly unreasonable, resulting in an excessive sentence.” Commonwealth

v. Faison, 297 A.3d 810, 834 (Pa. Super. 2023), appeal denied, 320 A.3d 82

(Pa. 2024) (citation omitted). However, “a bald claim of excessiveness due

to the consecutive nature of a sentence will not raise a substantial question.”

Id. Here, Appellant does not argue that application of his sentencing

guidelines was unreasonable. Rather, he presents a bald claim that the trial

court should have imposed concurrent sentences. Therefore, we conclude that

Appellant has failed to raise a substantial question justifying our review.

Even if Appellant raised a substantial question, he would not be entitled

to relief. We review a trial court’s sentencing determination for an abuse of

discretion:

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

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judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Zirkle, 107 A.3d at 132.

When imposing a sentence, a trial court is required to consider “the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant,” and state its reason for the sentence on the record. 42

Pa.C.S.A. § 9721(b); Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa.

Super. 2006). Where the court had the benefit of a presentence investigation

(“PSI”), we can assume the court “was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988). Additionally, a sentence within the standard guidelines range

is appropriate under the sentencing code. Moury, 992 A.2d at 171.

In the present case, Appellant’s sentences are within the standard

guideline ranges and the trial court had the benefit of a PSI when imposing

the sentence.

Additionally, it should be noted that “[a]lthough Pennsylvania’s system

stands for individualized sentencing, the court is not required to impose the

‘minimum possible’ confinement. Generally, 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.” Commonwealth v. Radecki, 180 A.3d 441,

470 (Pa. Super. 2018) (internal citations and quotation marks omitted).

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Appellant is not entitled to a “volume discount” on his multiple convictions by

the imposition of concurrent sentences. See, e.g., Commonwealth v.

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

In sum, Appellant did not raise a substantial question, but if he had, the

trial court did not abuse its discretion when it sentenced him.

Accordingly, we agree with counsel’s determination that the issues

presented in the Anders brief are meritless. In addition, our independent

review of the record reveals no non-frivolous issues to be raised on appeal.

Weitzel, supra. We therefore affirm the judgment of sentence and grant

counsel’s application to withdraw.

Judgment of sentence affirmed. Application to withdraw as counsel

granted.

Date: 12/19/2024

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