J-S44022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RICHARD ADAM HARTLEB
Appellant No. 1966 WDA 2013
Appeal from the Judgment of Sentence November 14, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000856-2013, CP-25-CR-0001217-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 22, 2014
Richard Adam Hartleb appeals from the judgment of sentence imposed
by the Court of Common Pleas of Erie County, after his conviction for several
offens
to withdraw pursuant to the dictates of Anders v. California, 386 U.S. 738
(1967), Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Upon review,
sentence.
On September 23, 2013, a jury convicted Hartleb of four counts of
terroristic threats.1 four counts of simple assault,2 and one count each of ____________________________________________
1 18 Pa.C.S. § 2706(a)(1). (Footnote Continued Next Page) J-S44022-14
possessing an instrument of crime (PIC)3 and carrying a firearm without a
license.4 These convictions stemmed from an incident that occurred on
February 8, 2013, in which Hartleb pointed a handgun at several individuals
On November 5, 2013, Hartleb pled guilty to recklessly endangering
another person5 and carrying a firearm without a license.6 These guilty
pleas arose out of an incident on January 13, 2013, when Hartleb fired a
handgun near the victim and toward a vehicle on the 1100 block of Wallace
Street in Erie.
On November 14, 2013, the trial court imposed an aggregate sentence
of six to
modification of sentence, which the court denied. This appeal followed.
Anders
faced with a purported Anders brief, this Court may not review the merits of
Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super. 2005). _______________________ (Footnote Continued)
2 18 Pa.C.S. § 2701(a)(3). 3 18 Pa.C.S. § 907(a). 4 18 Pa.C.S. § 6106(a)(1). 5 18 Pa.C.S. § 2705. 6 See n.4, supra.
-2- J-S44022-14
Furthermore, counsel must comply with certain mandates when seeking to
withdraw pursuant to Anders, Santiago, and McClendon. These mandates
are not overly burdensome and have been summarized as follows:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations
omitted).
Moreover, the Anders
withdraw must:
(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;
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.
-3- J-S44022-14
Here, counsel has filed a petition averring that, after a thorough
review of the record, he finds the appeal to be wholly frivolous, and states
his reasons for so concluding. Santiago, supra. Counsel provided a copy
of the petition and Anders brief to Hartleb, advised him of the right to
retain new counsel, proceed pro se, and raise any additional points he
deems wort
met the requirements of Anders, McClendon, and Santiago.
Once counsel has satisfied the above requirements, this Court
conducts its own review of the proceedings and renders an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
In his Anders brief, counsel discusses the following issues of arguable
merit:
(1) Did the trial court manifestly abuse its discretion when
consecutively to one another, rather than concurrently?
(2) Did the Commonwealth present evidence sufficient for the jury to conclude beyond a reasonable doubt that [Hartleb] carried a firearm without a license?
Anders Brief, at 7.
the discretionary aspect of his sentence. Judicial review of the discretionary
aspects of a sentence is granted only upon a showing that there is a
substantial question that the sentence was inappropriate and contrary to the
fundamental norms underlying the Sentencing Code. Commonwealth v.
-4- J-S44022-14
Tuladziecki
when the appellant advances a colorable argument that the sentencing
Sentencing Code; or (2) contrary to the fundamental norms which underlie
Commonwealth v. Brown, 741 A.2d 726, 735
(Pa. Super. 1999) (en banc).
[A] defendant may raise a substantial question where he 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; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.
Commonwealth v. Dodge, 77 A.2d 1263, 1270 (Pa. Super. 2013).
guilty of four counts of terroristic threats, for each of which the court
imposed a se
found Hartleb guilty of four counts of simple assault, for each of which the
court imposed a sentence of nine to twenty-
the PIC conviction, the court imposed a s
incarceration. The court ordered all nine sentences to be served
concurrently with a sentence of thirty to eighty-
for carrying a firearm without a license. With respect to the offenses arising
out of Hartleb firing gunshots on Wallace Street, the court imposed a
endangerment to be served concurrently with a sentence of forty-two to
-5- J-S44022-14
eighty- irearm without a license.
Hartleb argues that the court abused its discretion by imposing consecutive
sentences for the two firearms violations.
The decision to impose consecutive or concurrent sentences is left to
the sound discretion of the trial court. Commonwealth v. Prisk, 13 A.3d
impose consecutive sentences does not generally establish a substantial
question. Id. Whether a claim alleging that a consecutive sentence is
excessive raises a substantial question depends upon a determination
sentence to, what appears on its face to be, an excessive level in light of the
Commonwealth v. Mastromarino,
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J-S44022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RICHARD ADAM HARTLEB
Appellant No. 1966 WDA 2013
Appeal from the Judgment of Sentence November 14, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000856-2013, CP-25-CR-0001217-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 22, 2014
Richard Adam Hartleb appeals from the judgment of sentence imposed
by the Court of Common Pleas of Erie County, after his conviction for several
offens
to withdraw pursuant to the dictates of Anders v. California, 386 U.S. 738
(1967), Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Upon review,
sentence.
On September 23, 2013, a jury convicted Hartleb of four counts of
terroristic threats.1 four counts of simple assault,2 and one count each of ____________________________________________
1 18 Pa.C.S. § 2706(a)(1). (Footnote Continued Next Page) J-S44022-14
possessing an instrument of crime (PIC)3 and carrying a firearm without a
license.4 These convictions stemmed from an incident that occurred on
February 8, 2013, in which Hartleb pointed a handgun at several individuals
On November 5, 2013, Hartleb pled guilty to recklessly endangering
another person5 and carrying a firearm without a license.6 These guilty
pleas arose out of an incident on January 13, 2013, when Hartleb fired a
handgun near the victim and toward a vehicle on the 1100 block of Wallace
Street in Erie.
On November 14, 2013, the trial court imposed an aggregate sentence
of six to
modification of sentence, which the court denied. This appeal followed.
Anders
faced with a purported Anders brief, this Court may not review the merits of
Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super. 2005). _______________________ (Footnote Continued)
2 18 Pa.C.S. § 2701(a)(3). 3 18 Pa.C.S. § 907(a). 4 18 Pa.C.S. § 6106(a)(1). 5 18 Pa.C.S. § 2705. 6 See n.4, supra.
-2- J-S44022-14
Furthermore, counsel must comply with certain mandates when seeking to
withdraw pursuant to Anders, Santiago, and McClendon. These mandates
are not overly burdensome and have been summarized as follows:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations
omitted).
Moreover, the Anders
withdraw must:
(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;
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.
-3- J-S44022-14
Here, counsel has filed a petition averring that, after a thorough
review of the record, he finds the appeal to be wholly frivolous, and states
his reasons for so concluding. Santiago, supra. Counsel provided a copy
of the petition and Anders brief to Hartleb, advised him of the right to
retain new counsel, proceed pro se, and raise any additional points he
deems wort
met the requirements of Anders, McClendon, and Santiago.
Once counsel has satisfied the above requirements, this Court
conducts its own review of the proceedings and renders an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
In his Anders brief, counsel discusses the following issues of arguable
merit:
(1) Did the trial court manifestly abuse its discretion when
consecutively to one another, rather than concurrently?
(2) Did the Commonwealth present evidence sufficient for the jury to conclude beyond a reasonable doubt that [Hartleb] carried a firearm without a license?
Anders Brief, at 7.
the discretionary aspect of his sentence. Judicial review of the discretionary
aspects of a sentence is granted only upon a showing that there is a
substantial question that the sentence was inappropriate and contrary to the
fundamental norms underlying the Sentencing Code. Commonwealth v.
-4- J-S44022-14
Tuladziecki
when the appellant advances a colorable argument that the sentencing
Sentencing Code; or (2) contrary to the fundamental norms which underlie
Commonwealth v. Brown, 741 A.2d 726, 735
(Pa. Super. 1999) (en banc).
[A] defendant may raise a substantial question where he 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; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.
Commonwealth v. Dodge, 77 A.2d 1263, 1270 (Pa. Super. 2013).
guilty of four counts of terroristic threats, for each of which the court
imposed a se
found Hartleb guilty of four counts of simple assault, for each of which the
court imposed a sentence of nine to twenty-
the PIC conviction, the court imposed a s
incarceration. The court ordered all nine sentences to be served
concurrently with a sentence of thirty to eighty-
for carrying a firearm without a license. With respect to the offenses arising
out of Hartleb firing gunshots on Wallace Street, the court imposed a
endangerment to be served concurrently with a sentence of forty-two to
-5- J-S44022-14
eighty- irearm without a license.
Hartleb argues that the court abused its discretion by imposing consecutive
sentences for the two firearms violations.
The decision to impose consecutive or concurrent sentences is left to
the sound discretion of the trial court. Commonwealth v. Prisk, 13 A.3d
impose consecutive sentences does not generally establish a substantial
question. Id. Whether a claim alleging that a consecutive sentence is
excessive raises a substantial question depends upon a determination
sentence to, what appears on its face to be, an excessive level in light of the
Commonwealth v. Mastromarino,
2 A.3d 581, 587 (Pa. Super. 2010).
In the course of two separate criminal incidents, Hartleb used firearms
that he was precluded from carrying. As a result, the lives of his victims
were threatened or endangered. We are also mindful of the fact that the
and reckless endangerment concurrently with his sentences for firearms not
to be carried without a license.
In light of the number and nature
that the sentence was not excessive on its face. Accordingly, Hartleb has
not presented a substantial question that would permit us to review his
discretionary aspect of sentence claim.
-6- J-S44022-14
Hartleb next challenges the sufficiency of the evidence to support his
conviction for carrying a firearm without a license, which provides in relevant
. without a valid and lawfully issued license . . . commits a felony of the third
degree. 18 Pa.C.S. § 6105.1.
When reviewing the sufficiency of the evidence, we determine
derived from the evidence, viewed in the light most favorable to the
Commonwealth as verdict winner, was sufficient to establish all of the
Commonwealth v. Sanchez, 82 A.3d 943, 967
(Pa. 2013).
Here, the jury heard testimony from four witnesses that Hartleb had a
incident. N.T. Trial, 9/20/13, at 23, 26, 27-32, 37-41, 57-58, 60-63, and
evidence to the effect that [Hartleb] did not have a lic
9/20/30, at 37. Based on the evidence adduced at trial, and the stipulation,
it is clear that sufficient evidence existed to convict Hartleb of carrying a
firearm without a license.
withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
-7- J-S44022-14
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/22/2014
-8-