Com. v. Gordon, J.

• Court: Superior Court of Pennsylvania
• Decided: July 30, 2018
• Docket: 469 EDA 2017
• Status: Unpublished

Opinion

J-S07023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JASON GORDON : : Appellant : No. 469 EDA 2017

Appeal from the Judgment of Sentence August 18, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000854-2015

BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J. FILED JULY 30, 2018

Jason Gordon appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas following a guilty plea. Gordon

challenges the discretionary aspects of the trial court’s sentence. Additionally,

Gordon’s counsel of record, John Belli, Esquire, has filed a petition 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). We

affirm the judgment of sentence and grant Attorney Belli permission to

withdraw.

The relevant factual and procedural history is as follows. In November

2015, Gordon pled guilty to Aggravated Assault, Robbery, Kidnapping for

Ransom, Conspiracy, and Possession of an Instrument of Crime. The trial court

deferred sentencing to permit Gordon to aid the police in identifying his co-

conspirators in exchange for a reduced sentence. However, despite his stated J-S07023-18

desire to do so, Gordon failed to cooperate with the police. Therefore, on

August 18, 2016, the trial court sentenced Gordon to nine to twenty years’

imprisonment, followed by a ten-year term of probation. Immediately

following sentencing, the trial court noted it would consider amending

Gordon’s sentence if he provided the police with accurate information

regarding the identity of his co-conspirators.

Gordon filed a timely motion to reconsider his sentence. In his motion,

Gordon alleged he had information that would lead to the apprehension of a

co-conspirator. At a hearing on the motion, the detective assigned to Gordon’s

case noted that even if Gordon were willing to identify a co-conspirator, they

would not consider using any information provided by Gordon due to his

history of providing the police with inaccurate information in this matter.

Based upon this testimony, the trial court denied Gordon’s motion. This timely

appeal follows.

Prior to addressing the merits of Gordon’s appeal, we must first examine

Attorney Belli’s request to withdraw. Attorney Belli has substantially complied

with the mandated procedure for withdrawing as counsel. See Santiago, 978

A.2d at 361 (articulating 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) (citation omitted). Gordon has

not filed a response to counsel’s petition to withdraw.

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Counsel has identified one issue Gordon believes entitles him to relief.

Namely, Gordon contends the trial court abused its discretion in denying his

motion to reconsider because Gordon met the trial court’s condition for

reconsideration by providing information to the police. This raises a challenge

to the discretionary aspects of sentencing.

“A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

Here, Gordon’s claim fails, as he did not present this court with a

substantial question for our review. “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

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process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)

(internal quotation marks and citations omitted). “[W]e cannot look beyond

the statement of questions presented and the prefatory statement to

determine whether a substantial question exists.” Commonwealth v.

Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (citation omitted).

In his Rule 2119(f) statement, Gordon’s sole assertion is that his

sentence constitutes an abuse of discretion due to the trial court’s failure to

reduce his sentence based upon the information he provided to police. This,

essentially, constitutes an argument that the trial court failed to adequately

consider a mitigating factor. This argument does not raise a substantial

question. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.

Super. 2014) (en banc). Consequently, Gordon has failed to invoke our

jurisdiction, and we cannot review the merits of his sentencing claim. 1 See

Moury, 992 A.2d at 170.

After undertaking an independent review of the record, we concur with

counsel’s assessment that the appeal is wholly frivolous.

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1We note that even if we had the authority to review Gordon’s claim, it would not succeed. Contrary to Gordon’s claim, the trial court did not promise to amend his sentence if he provided the police with information; rather the trial court noted that it would consider amending his sentence if Gordon aided the police. See N.T., Sentencing, 8/18/16, at 28-29.

It is clear from the hearing on Gordon’s motion that the trial court considered the information Gordon alleged he provided to the police. See generally N.T., Hearing, 12/15/16. Thus, any argument that the trial court did not consider Gordon’s efforts would be utterly without merit.

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Judgment of sentence affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/30/18

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