Com. v. Gibson, J.

• Court: Superior Court of Pennsylvania
• Decided: May 18, 2018
• Docket: 234 MDA 2017
• Status: Unpublished

Opinion

J-S68028-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : JAYE ASHBY GIBSON : : No. 234 MDA 2017 Appellant

Appeal from the Judgment of Sentence January 3, 2017 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001967-2016

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 18, 2018

Appellant, Jaye Ashby Gibson, appeals from the Judgment of Sentence

entered in the Lackawanna County Court of Common Pleas following his guilty

plea to one count of Delivery of a Controlled Substance, one count of Resisting

Arrest, and one count of Fleeing or Attempting to Elude an Officer. 1 His

counsel, Donna M. DeVita, Esquire (“Counsel”), of the Public Defender’s Office,

has filed an Anders2 Brief and Petition for Leave to Withdraw. We grant

Counsel’s Petition and affirm Appellant’s Judgment of Sentence.

On August 4, 2016, Appellant and another individual sold heroin to a

Confidential Informant (“CI”), while Detectives Munley, Zech, Conrad, and

____________________________________________

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 5104; and 75 Pa.C.S. § 3733(a), respectively.

2 Anders v. California, 386 U.S. 738 (1967). ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S68028-17

other police officers from the Lackawanna County Drug Task Force monitored

the transaction. After the transaction occurred, Detective Conrad reported

that Appellant had entered a cream-colored van. Detectives Munley and Zech

approached the van to attempt a traffic stop. When they activated their lights

and sirens, Appellant did not stop. Instead, he attempted to cross the

roadway by accelerating into Detective Conrad’s vehicle and then crashing

into Detective Munley’s car head-on. Appellant attempted to flee on foot, and

when Detective Conrad caught him, Appellant got into a physical altercation

with the detective. After Detectives Munley and Conrad subdued Appellant,

they searched him and found a sealed bag of suspected heroin. Appellant

admitted that he had sold drugs to the CI. He also told the detectives that he

was staying at the Trotters Motel in Moosic, Pennsylvania, and that more drugs

were in his motel room.

The Commonwealth charged Appellant with nine offenses. On

December 15, 2016, Appellant pled guilty to the three offenses noted above

and waived his right to a presentence investigation.3 N.T. Guilty

Plea/Sentencing Hr’g, 12/15/16, at 9. The Court immediately sentenced him

to 21 to 48 months’ imprisonment for Delivery of a Controlled Substance; 6

to 12 months’ imprisonment for Resisting Arrest; and 6 to 12 months’

imprisonment for Fleeing or Attempting to Elude an Officer. Id. at 16-17. The

court ordered that the sentences run consecutively. See id. at 16-17. ____________________________________________

3The Commonwealth nolle prossed the remaining six offenses, including a charge of Aggravated Assault.

-2- J-S68028-17

After the denial of his post-sentence motion, Appellant timely appealed.

He filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of

on appeal and the trial court filed a responsive opinion.

Before we can consider the issues raised, we must determine whether

Counsel has complied with the mandated procedure for withdrawing as

counsel. See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)

(adopting Anders requirements); Commonwealth v. Daniels, 999 A.2d

590, 594 (Pa. Super. 2010) (providing that counsel must inform client by letter

of rights to proceed once counsel moves to withdraw and append a copy of

the letter to the petition). Appellant did not file a response.

Our review indicates that Counsel complied with Anders and Daniels.

We next “make a full examination of the proceedings in the lower court and

render an independent judgment [as to] whether the appeal is in fact

‘frivolous.’” Commonwealth v. Orellana, 86 A.3d 877, 882 n.7 (Citation

omitted).

Counsel identifies the following three issues in the Anders Brief:

A. Whether the sentences imposed were inappropriately harsh and excessive and an abuse of discretion?

B. Whether the sentencing court erred and abused its discretion when it failed to impose concurrent sentences when the criminal conduct which gave rise to the offenses occurred at the same time?

C. Whether the sentencing court erred when it relied on facts supporting the Aggravated Assault charge when Appellant did not plead guilty to Aggravated Assault, but

-3- J-S68028-17

rather he pled guilty to Fleeing or Attempting to Elude Police Officer and to Resisting Arrest?

Anders Brief at 4.4

Discretionary Aspect of Sentence

The first issue implicates the discretionary aspect of Appellant’s

sentence. See Anders Brief at 12. A challenge to the discretionary aspects

of sentencing is not automatically reviewable as a matter of right.

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008). Prior to

reviewing such a claim on its merits:

We conduct a four part analysis to determine: (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; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code ....

Id. (citations and quotation marks omitted). See also Pa.R.A.P. 2119(f).

Instantly, Appellant timely filed his appeal, preserved the issue of an

excessive sentence in his Motion for Reconsideration of Sentence, and

included a statement in his Brief that conforms with Pa.R.A.P. 2119(f). See

4 We have reordered the issues for ease of disposition.

-4- J-S68028-17

Anders Brief at 9-10. Accordingly, we ascertain whether Appellant has raised

a substantial question. See Phillips, 946 A.2d at 112.

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

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

contrary to the fundamental norms of the sentencing process.”

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

and quotations marks omitted).

Appellant contends that his sentence was harsh and excessive in the

high end of the standard guidelines range, resulting in too severe a

punishment. Anders Brief at 13. He argues that the sentencing court abused

its discretion in imposing sentences that were contrary to the Sentencing

Guidelines. Id. A claim of excessiveness resulting in too severe a punishment

can raise a substantial question as to the appropriateness of the sentence

under the Sentencing Code, even if the sentence is within the statutory limits.

Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002). We, thus,

conclude Appellant has raised a substantial question and we will review its

merits.

Our review of the discretionary aspect of Appellant’s sentence is

governed by the following principles:

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. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment

-5- J-S68028-17

exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation

“In every case in which the court imposes a sentence for a felony or

misdemeanor . . . the court shall make as a part of the record, and disclose in

open court at the time of sentencing, a statement of the reason or reasons for

the sentence imposed.” 42 Pa.C.S. § 9721(b).

In the case sub judice, the Sentencing Court stated its reasons on the

record for imposing a sentence within the standard range. N.T. at 17-18. The

Court indicated that it based its sentence upon the offenses to which Appellant

had pled guilty, his rehabilitative needs, his addiction to controlled substances,

and the need for mental health treatment. Id. Following our review of the

record, we agree with Counsel that this claim is frivolous.

Consecutive Sentences

Appellant next asserts that the court abused its discretion in ordering

the sentences to run consecutively because his offenses occurred during “one

continuous course of conduct.” Anders Brief at 14. This, too, challenges the

discretionary aspect of his sentence.

The court has discretion to order sentences to run consecutively.

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

claim that an aggregate sentence is manifestly excessive because the

individual sentences are consecutive does not raise a substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).

-6- J-S68028-17

In the instant case, Appellant’s unsupportable assertion—that one

continuous course of conduct precludes consecutive sentences—is essentially

a bald claim. Accordingly, it does not raise a substantial question. We, thus,

decline to conclude that the court’s imposition of consecutive sentences was

an abuse of its discretion.

Reliance on Wrong Facts

In his last issue, Appellant avers that the Sentencing Court erroneously

relied on facts supporting the nolle prossed Aggravated Assault charge, which

came out during Appellant’s plea colloquy to the charge of Fleeing or

Attempting to Elude Police Officer. See Appellant’s Brief at 11. A review of

the record belies this claim. The Commonwealth stated that Appellant

attempted to flee a traffic stop during a felony drug investigation when he

accelerated into the Detective’s vehicle and caused a head-on collision. N.T.

at 8. Appellant agreed with the Commonwealth. See id. As the court noted,

Based on the conduct described by the Commonwealth and admitted to by [Appellant,] this [c]ourt accepted [Appellant’s] guilty plea to one count of [F]leeing or [A]ttempting to [E]lude a [P]olice [O]fficer. There was no mention of [A]ssault charges at the time of the guilty plea. The above-referenced description could form the factual basis for [A]ggravated Assault on a law enforcement officer. However, the factual scenario is also the basis for both [F]leeing and [E]luding and [R]esisting [A]rrest. As such, this issue is without merit and should be denied.

Trial Ct. Op., dated 3/6/17 at 8-9.

We agree with the trial court’s analysis and conclude this issue

has no merit.

-7- J-S68028-17

Following our independent examination of the record, we discern no

issues of merit to be raised on appeal. Accordingly, we affirm Appellant’s

Judgment of Sentence.

Petition to Withdraw Granted. Judgment of Sentence Affirmed.

Judge Lazarus joins the memorandum.

Judge Strassburger files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/18/18

-8-