Com. v. Hamm, T.

• Court: Superior Court of Pennsylvania
• Decided: August 15, 2024
• Docket: 104 MDA 2024
• Status: Unpublished

Opinion

J-S20012-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY LEE HAMM : : Appellant : No. 104 MDA 2024

Appeal from the Judgment of Sentence Entered December 11, 2023 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000593-2023

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED AUGUST 15, 2024

Appellant, Timothy Lee Hamm, appeals from the judgment of sentence

entered on December 11, 2023, following his guilty plea to disorderly conduct

and possession of a controlled substance.1 In this direct appeal, Appellant's

counsel has filed both a petition for leave to withdraw as counsel and an

accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967)

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude

that Appellant's counsel has complied with the procedural requirements

necessary to withdraw. Moreover, after independently reviewing the record,

we conclude that the instant appeal is wholly frivolous. Therefore, we grant

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 5503(a)(4) and 35 P.S. § 780-113(a)(16), respectively. J-S20012-24

counsel's petition for leave to withdraw and affirm Appellant's judgment of

sentence.

We briefly summarize the facts of this case as follows. According to the

criminal information filed in this matter, the Commonwealth alleged that on

July 26, 2023, while police officers attempted to enforce a warrant for

Appellant’s arrest in an unrelated matter, Appellant resisted. In a search

incident to Appellant’s eventual arrest, the police recovered

methamphetamine and drug paraphernalia from Appellant’s person. On

November 2, 2023, Appellant entered an open guilty plea to the

aforementioned charges. On December 11, 2023, following a hearing, the

trial court sentenced Appellant to six to 12 months of incarceration for

disorderly conduct, followed by a consecutive term of 16 to 36 months of

incarceration for possession of a controlled substance. The trial court further

ordered Appellant’s sentence to run consecutive to his outstanding sentences

in unrelated matters. This timely appeal resulted.2

On appeal, Appellant's counsel filed a petition for leave to withdraw and

counsel accompanied this petition with an Anders brief. Before reviewing the

merits of this appeal, this Court must first determine whether counsel has ____________________________________________

2 Appellant filed a timely post-sentence motion on December 19, 2023, asserting that his aggregate sentence of 22 to 48 months was excessive and unduly harsh. By order entered on December 26, 2023, the trial court denied Appellant’s post-sentence motion. On January 19, 2024, Appellant filed a notice of appeal. On January 26, 2024, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. On February 13, 2024, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(b).

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fulfilled the necessary procedural requirements for withdrawing as counsel.

Commonwealth v. Miller, 715 A.2d 1203, 1207 (Pa. Super. 1998).

To withdraw under Anders, counsel must satisfy certain technical

requirements. First, counsel must “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.” Miller, 715 A.2d at 1207.

Second, 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 case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Finally, counsel must furnish a copy of the

Anders brief to his or her client and advise the client “of [the client's] right to

retain new counsel, proceed pro se or raise any additional points worthy of

this Court's attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.

Super. 2007) (citation omitted).

If counsel meets all of the above 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.” Santiago, 978 A.2d at 355 n.5; see also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to review “the

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entire record with consideration first of the issues raised by counsel .... [T]his

review does not require this Court to act as counsel or otherwise advocate on

behalf of a party. Rather, it requires us only to conduct a review of the record

to ascertain if[,] on its face, there are non-frivolous issues that counsel,

intentionally or not, missed or misstated. We need not analyze those issues

of arguable merit; just identify them, deny the motion to withdraw, and order

counsel to analyze them[.]”). It is only when all of the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

Here, counsel complied with all of the above procedural obligations.3

We must, therefore, review the entire record and analyze whether this appeal

is, in fact, wholly frivolous. Our analysis begins with the claim raised in the

Anders brief, which is as follows:

I. Was the sentence imposed on [Appellant] excessive in light of [his] circumstances, particularly with regard[] to [Appellant’s] treatment, rehabilitative needs, and prior criminal history?

Anders Brief at 3.

More specifically, “Appellant complains that [his] sentence was

excessive because the court failed to take into account his rehabilitative

needs, goals upon parole[,] and [the] timeframe since his last possession of

a controlled substance” which “was about 20 years prior.” Id. at 8. Appellant

3 Appellant has not responded to the petition to withdraw and/or the Anders brief.

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concedes, however, that his “minimum sentence … was within the standard

range of the sentencing guidelines” and that the trial “court had access to a

pre-sentence investigation [report (PSI report)] which it referred to and

incorporated into the sentencing decision.” Id. at 11; see also id. at 13

(“[T]he sentence that Appellant received was within the sentencing guidelines,

just at the top of the standard range.”).

Appellant's claim challenges the discretionary aspects of his sentence.

See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the

trial court erred in imposing an excessive sentence is a challenge to the

discretionary aspects of a sentence). With respect to our standard of review,

we have held that “sentencing is a matter vested in the sound discretion of

the sentencing judge, whose judgment will not be disturbed absent an abuse

of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.

2001). Moreover, pursuant to statute, Appellant does not have an automatic

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. §

9781(b). Instead, Appellant must petition this Court for permission to appeal

the discretionary aspects of his sentence. Id.

This Court has previously explained:

It is well-settled that “the right to appeal a discretionary aspect of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the discretionary aspects of a sentence, we should regard his[, or her,] appeal as a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

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An appellant challenging the discretionary aspects of his[, or her,] sentence must invoke this Court's jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether appellant [ ] 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, [see] 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).

[Moury, 992 A.2d] at 170 [(citation omitted)]. We evaluate on a case-by-case basis whether a particular issue constitutes a substantial question about the appropriateness of sentence. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original

brackets omitted).

Here, Appellant complied with the first three requirements as set forth

above. Appellant also raises a substantial question. See Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“[T]his Court has held that an

excessive sentence claim—in conjunction with an assertion that the court

failed to consider mitigating factors—raises a substantial question.”).

This Court has previously determined:

When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721(b), including the protection of the public, the gravity of the offense in relation to the impact on the victim and the community, and the rehabilitative needs of the defendant. Additionally, the trial court must consider the sentencing guidelines. Where a PSI report exists, this Court will presume that the sentencing judge was aware of relevant information regarding the defendant's character

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and weighed those considerations along with mitigating statutory factors.

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. An appellant is not entitled to a volume discount on his multiple convictions by the imposition of concurrent sentences.

The balancing of the sentencing factors is the sole province of the sentencing court, which has the opportunity to observe the defendant and all witnesses firsthand. In conducting appellate review, this Court cannot reweigh sentencing factors and impose judgment in place of the sentencing court where the lower court was fully aware of all mitigating factors.

Commonwealth v. Lawrence, 313 A.3d 265, 286 (Pa. Super. 2024)

(internal citations, quotations, and original brackets omitted); see also

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (citation

omitted) (The sentencing court may merely choose not to give the proposed

mitigating factors much weight and decide that the facts of the case do not

warrant imposition of a sentence lower than the standard range, and, on

appeal, we cannot re-weigh the sentencing factors and impose our judgment

in the place of the sentencing court.). Moreover, when a defendant is

sentenced within the standard sentencing guideline range for each offense,

this Court shall vacate the sentence only in “circumstances where the

application of the guidelines would be clearly unreasonable.” 42 Pa.C.S.A.

§ 9781(c)(2).

Upon appellate review, we consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

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(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

Here, the trial court determined that

[a]t the time of sentencing, [the trial] court had a [PSI report] and sentencing guideline form. The sentence for each conviction falls within the standard range of the sentencing guidelines. [The trial] court reviewed the [PSI report.] [Thus, the trial] court [concluded it] considered all appropriate sentencing factors and considerations when it incorporated the [PSI report] into its reasons for sentencing.

Trial Court Opinion, 2/13/2024, at 2.

Here, at sentencing, there is no dispute that the trial court stated that

it reviewed the PSI report and set forth the standard-range guidelines for each

convicted offense. N.T., 12/11/2023, at 1. Before imposing sentence,

defense counsel noted that Appellant’s criminal history “stems from addiction”

and that Appellant planned to “get into a rehab facility upon release.” Id. at

2. Appellant claimed that he was interested in a sober, work-release program

and eventually moving in with his mother in order “to stay clear” of “old

habits[.]” Id. Appellant further averred that he committed the offenses at

issue when “his sister and his grandmother had just passed away.” Id. at 3.

Counsel claimed that Appellant was enrolled in prison programs “such as anger

management and other work[-]related classes to insure that when he is

released he will be successful in getting employment and maintaining []

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sobriety.” Id. Appellant further stated that “it was his goal to be able to

rekindle [] relationships” with his children and “be able to be a very active

father in their lives.” Id. Ultimately, counsel for Appellant asked the trial

court to sentence Appellant “on the lowest end” of the standard range of the

sentencing guidelines. Id. at 4. Thereafter, the trial court reviewed

Appellant’s PSI report on the record, specifically noting that Appellant’s

criminal history from 2002 through 2020 consisted of multiple convictions

including harassment, possession of a controlled substance, possession of

contraband, disorderly conduct, three convictions for simple assault, and four

convictions for driving under the influence of alcohol/controlled substances.

Id. at 7-8. The trial court incorporated the PSI report into the record and

noted that the sentences imposed were within the standard range of the

sentencing guidelines. Id. at 10. The trial court determined that Appellant’s

“extremely lengthy criminal record” coupled with the fact that he was “on state

parole when these offenses occurred” warranted consecutive sentences, that

when aggregated, totaled 22 to 48 months of incarceration. Id. The trial

court also imposed this sentence consecutively to any other sentence already

imposed. Id.

Upon review, we agree with the trial court’s assessment and discern no

abuse of discretion or error of law in sentencing Appellant. The trial court was

aware of the sentencing guidelines and considered a PSI report. As such, we

presume the trial court was aware of relevant information regarding

Appellant’s character and weighed those considerations along with mitigating

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statutory factors. Moreover, Appellant also offered additional mitigation

evidence, which the trial court contemplated. The trial court considered the

protection of the public, the gravity of the offenses at issue, and the

rehabilitative needs of the defendant. Considering Appellant’s criminal history

spanning decades and that prior parole and probation supervision proved

ineffective for Appellant, the trial court ultimately determined that

incarceration was essential because more lenient rehabilitation did not protect

the public. Moreover, Appellant was not entitled to a volume discount for his

crimes and there was no abuse of discretion in sentencing Appellant to

consecutive terms of imprisonment. Furthermore, in this case, we conclude

that the application of the sentencing guidelines was reasonable under

Section 9781(c)(2). We simply cannot re-weigh the sentencing factors and

impose our judgment in the place of the sentencing court. As such, there is

no merit to Appellant’s discretionary sentencing claim.

We independently considered the issues raised within counsel's Anders

brief and we have determined that the claim presented therein is frivolous. In

addition, after an independent review of the entire record, we see nothing that

might arguably support this appeal. The appeal is, therefore, wholly frivolous.

Accordingly, we affirm Appellant's judgment of sentence and grant counsel's

petition for leave to withdraw.

Petition for leave to withdraw granted. Judgment of sentence affirmed.

Jurisdiction relinquished.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 08/15/2024

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