Com. v. Granberry, T.

• Court: Superior Court of Pennsylvania
• Decided: February 26, 2015
• Docket: 645 MDA 2014
• Status: Unpublished

Opinion

J-S11034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TAIWAN GRANBERRY, : : Appellant : No. 645 MDA 2014

Appeal from the Judgment of Sentence entered on March 17, 2014 in the Court of Common Pleas of York County, Criminal Division, No. CP-67-CR-0008864-2012

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 26, 2015

Taiwan Granberry (“Granberry”) appeals from the judgment of

sentence entered following his plea of nolo contendere to two counts each of

aggravated indecent assault and corruption of minors.1 Additionally,

Granberry’s counsel, Jennilee M. Kemling, Esquire (“Attorney Kemling”), has

filed a Petition to Withdraw as counsel and an accompanying brief pursuant

to Anders v. California, 386 U.S. 738, 744 (1967). We grant Attorney

Kemling’s Petition to Withdraw, and affirm the judgment of sentence.

The trial court set forth the relevant facts and procedural history

underlying this appeal in its Opinion, which we adopt and incorporate herein

1 See 18 Pa.C.S.A. §§ 3125(a)(8), 6301(a)(1)(ii). J-S11034-15

by reference. See Trial Court Opinion, 8/27/14, at 2-3.2

After filing the Pa.R.A.P. 1925(b) Concise Statement of Errors

Complained of on Appeal on Granberry’s behalf, Attorney Kemling filed with

this Court an Anders Brief and Petition to Withdraw as counsel, opining that

all of the issues that Granberry wished to raise on appeal are wholly

frivolous and there are no other meritorious issues to be presented.3

Before addressing Granberry’s claims, we must determine whether

Attorney Kemling has complied with the dictates of Anders and its progeny

in petitioning to withdraw from representation. Pursuant to Anders, when

counsel believes that an appeal is frivolous and wishes to withdraw from

representation, she must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders brief must

2 In his post-sentence Motion, Granberry argued that the sentencing court imposed an excessive aggregate sentence and failed to consider his rehabilitative needs. 3 Granberry did not retain alternate counsel for this appeal, nor did he file a response to the Petition to Withdraw.

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(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.

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

counsel has satisfied the Anders requirements, it is then this Court’s duty to

conduct its own review of the trial court’s proceedings and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006)

(citation and brackets omitted).

Our review of Attorney Kemling’s Anders Brief and Petition to

Withdraw reveals that she has complied with the requirements of

Anders/Santiago. Additionally, Attorney Kemling has properly (1) provided

Granberry with a copy of both the Anders Brief and the Petition to

Withdraw; and (2) appended to the Petition to Withdraw a copy of the letter

that she sent to Granberry advising him of his right to retain new counsel,

proceed pro se, or raise any additional points that he deems worthy of this

Court’s attention. Accordingly, we next examine the record to make an

independent determination of whether Granberry’s appeal is, in fact, wholly

frivolous.

In the Anders Brief, Attorney Kemling states that Granberry wishes to

raise the following issues for our review:

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I. Whether [Granberry’s] plea was voluntarily entered?

II. Whether the trial court had jurisdiction to hear the case?

III. Whether the trial court issued a legal sentence?

IV. Whether the trial court abused its discretion in sentencing [Granberry] to an aggregate sentence of five (5) to eleven (11) years in a state correctional institution?

Anders Brief at 5 (capitalization omitted).

Granberry first argues that the trial court erred by accepting his plea

of nolo contendere because he did not enter it voluntarily. See id. at 10-11.

The trial court concisely addressed this claim in its Opinion, set forth

the applicable law, and correctly determined that Granberry entered his plea

knowingly and voluntarily, crediting the oral and written plea colloquies

completed by Granberry. See Trial Court Opinion, 8/27/14, at 4-5; see

also Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012)

(stating that a defendant is bound by statements made during a plea

colloquy). The record and the law support the trial court’s rationale and

determination, and we therefore affirm on this basis with regard to

Granberry’s first issue. See Trial Court Opinion, 8/27/14, at 4-5.

Next, Granberry contends that the trial court lacked jurisdiction to

hear his case. Anders Brief at 11.

This Court has set forth the following governing standards pertaining

to a trial court’s subject matter jurisdiction in a criminal case:

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Subject matter jurisdiction speaks to the competency of a court to hear and adjudicate the type of controversy presented. Jurisdiction is purely a question of law; the appellate standard of review is de novo and the scope of review is plenary. Controversies stemming from violations of the Crimes Code are entrusted to the original jurisdiction of the courts of common pleas for resolution. 18 Pa.C.S. § 102. All jurists within that tier of the unified judicial system are competent to hear and resolve a matter arising out of the Crimes Code. Pa. Const. Art. 5, § 5 (establishing the jurisdiction of the courts of common pleas within the unified judicial system); 42 Pa.C.S. § 931(a) (defining the unlimited original jurisdiction of the courts of common pleas).

***

The law is clear that the locus of a crime is always in issue, for the court has no jurisdiction over the offense unless it occurred within the county of trial, or unless, by some statute, it need not. For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county.

Commonwealth v. Elia, 83 A.3d 254, 265 (Pa. Super. 2013) (citations to

case law and brackets omitted).

Here, Granberry never disputed that the sexual assaults occurred in

York County. The charging documents, filed by an officer of the Northern

York County Regional Police Department, alleged that the incidents occurred

in Dover, York County. See Criminal Complaint, 10/9/12; Affidavit of

Probable Cause, 10/15/12. Moreover, as part of his oral plea colloquy,

Granberry conceded that the Commonwealth would be able to prove the

allegations beyond a reasonable doubt. See N.T., 12/6/14, at 5.

Accordingly, Granberry’s instant claim that the York County Court of

Common Pleas lacked jurisdiction is wholly frivolous. See Elia, 83 A.3d at

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265-66 (holding that the trial court had subject matter jurisdiction where the

evidence established that the defendant had committed the sexual assaults

in the county in which he was tried and convicted).

In his third issue, Granberry argues that the sentencing court imposed

an illegal sentence. Anders Brief at 8, 12-13. “The determination as to

whether the trial court imposed an illegal sentence is a question of law; our

standard of review in cases dealing with questions of law is plenary.”

Commonwealth v. Veon, 2015 PA Super 26, *31 (Pa. Super. 2015)

Attorney Kemling maintains that Granberry’s sentence was legal, and

within the standard sentencing guideline range, stating as follows:

[T]he trial court gave [Granberry] a sentence of [one] to two years in a state correctional institution on … each [of his two convictions of aggravated indecent assault]. [Granberry’s] minimum sentence range under the sentencing guidelines for [each of these convictions] was 6 to 16 months. The trial court also gave [Granberry] a sentence of 4 to 9 years on … each [of his two convictions of corruption of minors]. [Granberry’s] minimum sentence range under the sentencing guidelines for [each of these convictions] was 3½ to 4½ years. The trial court’s sentence was within the guidelines[;] thus[,] it was not an illegal sentence.

Anders Brief at 8; see also Trial Court Opinion, 8/27/14, at 7 (determining

that Granberry’s sentence is legal). Our review confirms that Attorney

Kemling’s analysis is supported by the record, and we likewise conclude that

Granberry’s sentence, which was below the statutory maximum, is lawful.

Finally, Granberry asserts that the sentencing court abused its

discretion by imposing an excessive sentence and failing to consider his

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rehabilitative needs. Anders Brief at 13-14; see also Post-Sentence

Motion, 3/26/14, at 3 (unnumbered).4

Granberry’s claim raises a challenge to the discretionary aspects of his

sentence, from which there is no absolute right to appeal. See

Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather,

where, as here, the appellant has preserved the discretionary sentencing

claim for appellate review by raising it in a timely post-sentence motion, the

appellant must (1) include in his brief a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a

substantial question that the sentence imposed is not appropriate under the

Sentencing Code. Hill, 66 A.3d at 363-64.

Here, the Anders brief does not contain a Rule 2119(f) Statement,

and the Commonwealth has objected to this defect. See Commonwealth’s

brief at 11. Accordingly, this issue is waived. See Commonwealth v.

Robinson, 931 A.2d 15, 19, 22 (Pa. Super. 2007) (en banc) (finding waiver

of the appellant’s discretionary aspects of sentencing claim because he had

failed to include a Rule 2119(f) statement in his brief and the

Commonwealth objected to this defect).

4 Because Granberry’s plea did not include an agreement as to the sentence to be imposed by the court, his challenge to the discretionary aspects of his sentence is properly before us. See Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994) (explaining that, where there have been no sentencing restrictions in the plea agreement, the entry of a guilty plea will not preclude a challenge to the discretionary aspects of sentencing).

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Even if we did not find waiver, pursuant to our independent review of

Granberry’s sentencing challenge required by Anders, we would determine

that it lacks merit based upon the reasoning advanced by the trial court in

its Opinion. See Trial Court Opinion, 8/27/14, at 6-7 (stating, inter alia,

that the sentencing court did, in fact, consider Granberry’s rehabilitative

needs and observing that the sentence imposed was within the standard

range of the sentencing guidelines); see also Commonwealth v. Moury,

992 A.2d 162, 171 (Pa. Super. 2010) (stating that “where a sentence is

within the standard range of the guidelines, Pennsylvania law views the

sentence as appropriate under the Sentencing Code.”).

Accordingly, we conclude that all of Granberry’s issues lack merit, and

our independent review discloses no non-frivolous issues that he could

present on appeal. Thus, we grant Attorney Kemling permission to withdraw

under the precepts of Anders/Santiago, and affirm the judgment of

sentence.

Petition to Withdraw as counsel granted; judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/26/2015

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IN THE cotiiif 8~ ~ljM~ON PLEA~ HF YORK COUNTY, PENNSYL VANIA CRIMINAL DIVISION

Commonwealth of Pennsylvania CP-67-CR-0008864-2012

vs. Super. Ct. No. 653 MDA 2014

Taiwan Granberry

OPINION PURSUANT TO RULE 1925(a) OF PENNSYLVANIA RULES OF APPELLATE PROCEDURE

On December 6,2013, the Appellant, Taiwan Granberry, entered a plea of nolo contendere to two counts of Aggravated Indecent Assaultl and two counts of Corruption of Minors.2 On March 17,2014, the Appellant was sentenced to 12 to 24 months imprisonment on each count of Corruption of Minors, which would run concurrently with one another. He was furthered sentenced to 48 to 108 months imprisonment on each count of Aggravated Indecent Assault, which would run concurrently with each other, but consecutively with the sentence for the Corruption of Minors counts. Thus, the Appellant was sentenced to an aggregate sentence of no less than 60 months and no more than 132 months. Post sentence motions were filed on March 26,2014, and denied on March 31,2014. The Appellant filed a timely Notice of Appeal on April 10, 2014. This court directed the Appellant to file a Concise Statement of the Matters Complained on April 14,2014. The Appellant asked for an extension, which we granted on May 8,2014. The Appellant filed his statement on May 28,2014. In his

1 . ' 18 Pa. C.S.A. § 1325(a)(8). 218 Pa. C.S.A. § 6301(a)(1)(ii).

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appeal the Appellant questions (1) whether the Appellant's plea was voluntarily entered; (2) whether the Trial Court had jurisdiction to hear the case; and (3) whether the Trial Court issued a legal sentence, and/or abused its discretion in sentencing the Appellant to an aggregate sentence of no less than 60 months and no more than 132 months imprisonment. The entry of the Appellant's nolo contendere plea can be found in the original record at Notes of Testimony of 12/6/2013. The imposition of the Appellant's sentence can be found in tJ;1.e original record at Notes of Testimony 3/17/2014. Pursuantto Pennsylvania Rule 1925(a) of Appellate Procedure, the following is our opinion addressing the Appellant's issues.

Factual and Procedural History: According to the Affidavit for Probable Cause, on July 10,2012, Jana Schaeffer called the police to report that her daughter M.M., who was thirteen years old at the time, had been sexually assaulted at a friend's house. This friend, thirteen year old A.C., is the daughter of the Appellant's fiancee .. M.M. was spending the night at A.C.'s house, when, while she was asleep, an unknown man came in and began touching her vagina. M.M. pretended she was sleeping. Approximately twenty minutes later, the Appellant came into the bedroom asking ifM.M. was okay. In the morning, M.M. told A.C. what had happened and A.C. began to cry. She admitted that it had happened to her before, and that she knew who had come in the bedroom that night. She told M.M. it was Taiwan Granberry, the Appellant. On December 6,2013, the Appellant entered a plea of nolo contendere. The Appellant stated that he had been drinking on the night of July 9,2012, and did not know ifhe had sexually assaulted M.M or A.C., but conceded that there was sufficient evidence to convict him. ,(N.T. 12/6/2013 at 4). This court accepted the Appellant's plea. (Id. at 5). The Appellant was sentenced on March 17,2014. The sentence was 2 Circulated 02/11/2015 03:31 PM

not part of a plea agreement. For the two counts of Corruption of Minors, the Appellant was sentenced to 12 to 24 months on each count, which were to run concurrently with one another. (N.T. 3117/2014 at 3). On the two counts of Aggravated Indecent Assault, the Appellant was sentenced to 48 to 108 months for each count. (Id.). These sentences were to run concurrent with one another, but consecutive to the sentence on the counts of Corruption of Minors. (Id.). Therefore, the Appellant was sentenced to an aggregate sentence of no less than 60 months and no more than 132 months imprisonment. (Id. at 4). The Appellant filed Post-Sentence Motions on March 26, 2014, which we denied on March 31,2014. The Appellant timely appealed on April 10, 2014, and also included a Petition to Withdraw as Counsel. On April 14, 2014, we directed the Appellant to file a Concise Statement of the Matters Complained. On Apri115, 2014, we granted the Appellant's Petition to Withdraw as Counsel. On May 5, 2014, the court received a Motion for Extension of Time to File 1925(b) Statement from Appellant's new counsel. The extension was granted on May 8,2014, and he filed his 1925(b) Statement on May 28,2014.

Issues: 1. Was the Appellant's plea voluntarily entered? II. Did the Trial Court have jurisdiction to hear this case? III. Was the sentenced imposed by the Trial Court legal, and did the Trial Court abuse its discretion when sentencing the Appellant to an aggregate of no less than 60 months and no more 132 months?

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Discussion: The effect of a nolo contendere plea is the same as a guilty plea. Commonwealth v. Lewis, 791 A.2d 1227, 1230 (Pa. Super. Ct. 2002). A plea of nolo contendere can only be entered with the consent of the judge. Id. at 1231 (citing PA. R. CRIM. P. 590).

Was the Appellant's plea voluntarily entered? In order to determine whether a plea has been entered voluntarily, the trial judge is to inquire into the following: (1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere? (2) Is there a factual basis for the plea? (3) Does the defendant understand that he or she has the right to trial by jury? (4) Does the defendant understand that he or she is presumed innocent until found guilty? (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged? (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Lewis, 791 A.2d at 1231 (citing PA. R. CRIM. P. 590). In the present case, prior to his plea hearing, the Appellant met with his attorney and filled out a written plea colloquy. This colloquy was filled out in the Appellant's own handwriting, contained his initials on every page, and was signed by the Appellant. His attorney also swore that he informed the Appellant of the implications of pleading nolo contendere. Further, at his plea hearing on December 6, 2013, the Appellant was asked, among other things, if he had enough time to consult with his attorney, if he understood what a nolo contendere plea was, and if he had any questions. (N.T. 12/6/2013 at 2-3). The Appellant indicated that he had enough time to consult with his attorney, that he understood what was going on, and that he did not

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have any questions for the court. (Id.). The Appellant was asked ifhe agreed that the Commonwealth would be able to prove beyond a reasonable doubt all of the charges· to which he was pleading; again, the Appellant stated he agreed. (Id. at 3-4). Lastly, the Appellant was asked if he was stating that the events alleged did not happen or if he did not know if the events occurred because of his intoxicated state. (Id. at 5). The Appellant clarified that he did not remember if the events took place. (Id.). Therefore, because the Appellant indicated at all stages that he was aware of the implications of pleading nolo contendere, we believe the Appellant entered his plea knowingly and voluntarily.

Did the Trial Court have jurisdiction to hear this case? Courts of Common Pleas are conferred with broad jurisdiction. The Pennsylvania Constitution states that the courts of Common Pleas are vested with "unlimited original jurisdiction in all cases except as provided by law." PA. CONST. ART. 5, § 5(b). Statutory law similarly grants this court with jurisdiction over all matters except those that are vested in another court in the Commonwealth. 42 Pa. C.S.A. § 931(a). Lastly, "[c]ontroversies arising out of violations of the Crimes Code are entrusted to the original jurisdiction of the courts of common pleas for resolution." Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003). In the present case, the Appellant was charged with two counts of Aggravated Indecent Assault and two counts of Corruption of Minors. Therefore, because the Appellant's controversy is one arising under the Crimes Code, this court had ~ jurisdiction to hear the case. ~.

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Sentence: Legality and Abuse of Discretion The Appellant asks (1) whether the Trial Court issued a legal sentence, and (2) whether the Trial Court abused its discretion in sentencing the Appellant to an aggregate sentence of 60 to 132 months imprisonment. . An Appellant does not have an "absolute right to appellate review of the discretionary aspects of sentencing." Commonwealth v. Mouzon, 812 A.2d 617,621 (Pa. 2002). An appellate court will review the discretionary aspects of sentencing if the Appellant raises a substantial question. Id. A substantial question may exist if the Appellant can show that "the actions by the sentencing court [are] inconsistent with the Sentencing Code or [are] contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. Super. Ct. 1999). The Appellant is required to file a brief, which must include a "concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence." Pa. R.A.P. 21l9(f). This statement should include where the sentence falls in relation to the sentencing guidelines, the fundamental norm the sentence imposed violates, and the manner in which the sentenced imposed violates that norm .. Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. Ct. 2000). Well established law clearly states that it is within the discretion of the sentencing judge to decide whether multiple sentences should run concurrently or consecutively. Commonwealth v. Rickabaugh, 706 A.2d 826,847 (Pa. Super. Ct. 1997). In the present case, the Appellant was sentenced to 12 to 24 months imprisonment on each count of Corruption of Minors. (N.T. 3117/2014 at 3). These sentences were to run concurrent with each other. (Id.). On the two Aggravated Indecent .Assault counts, the Appellant was sentenced to 48 to 108 months .

imprisonment. (Id.). These sentences were to run concurrent with one another, but 6 Circulated 02/11/2015 03:31 PM

consecutively with the sentence on the Corruption of Minors counts. (Id.). Thus, the aggregate sentence imposed was no less than 60 months and no more than 132 months. imprisonment. CId. at 4). On March 26,2014, the Appellant filed a Post-Sentence Motion arguing that the sentenced imposed by this court was excessive and warranted a downward modification. (Def. 's Post-Sent. Mot. 3/26/14). The Appellant also argued that the sentence did not adequately take into account the Appellant's rehabilitative needs. CId.). We denied the motion on March 31,2014. When imposing the sentence, we tookmany factors into account, including, among other things, the sentencing guidelines, the fact that the offenses involved two different individuals over a period of time, and the recominendation by the Probation Department. (N.T. 3/17/2014 at 2-3). We further took into account the Appellant's need for rehabilitation, and we noted that the sentence we imposed was less than the sentenced recommended by the Probation Department. CId. at 3-4). Lastly, we noted that the Appellant entered a ho10 contendere plea, which did alleviate any further suffering of the victims that might have come from testifying at trial. CId. at 4). Assuming there is a substantial question warranting review on appeal, we believe that we adequately took into account the factors listed in 42 Pa. C.S.A. § 9721 (b), and the discretionary aspects of our sentence should be upheld. Further, as previously stated, the decision as to whether sentences on multiple offenses are to run concurrently or consecutively lies in the discretion of the judge. Commonwealth v. Rickabaugh, 706 A.2d 826, 847 (Pa. Super. Ct. 1997). Therefore, we believe the Appellant's sentence is legal, and we further believe we did not abuse our discretion in sentencing the Appellant to an aggregate of no less than 60 months and no more than 132 months imprisonment.

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" ,.' .. ,j' ~ .'

Conclusion: The Appellant's written plea colloquy and the official record of the plea hearing both indicate that the Appellant was fully aware of the effect entering a nolo contendere plea would have on his case. Therefore, we believe his plea was knowingly and voluntarily entered. Further, because this was a criminal case, we clearly had jurisdiction to hear it under the Pennsylvania Constitution. Lastly, the sentence imposed by this court was legal. Likewise, we took all relevant factors into consideration when imposing the sentence. Specifically, we noted the sentencing guidelines, the Appellant's need for rehabilitation, and the fact that the Appellant entered a plea in order to alleviate any furthering suffering of his victims. Therefore, we respectfully suggest that the issues advanced by the Appellant are without merit, and that the rulings of this Court were not in error.

Date: Richard K. Renn, Judge