Com. v. Johnson, I.

• Court: Superior Court of Pennsylvania
• Decided: April 10, 2015
• Docket: 1506 MDA 2014
• Status: Unpublished

Opinion

J-S15021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

IAN JOHNSON

Appellant No. 1506 MDA 2014

Appeal from the Judgment of Sentence of August 12, 2014 In the Court of Common Pleas of Lackawanna County Criminal Division at Nos.: CP-35-CR-0000605-2014 CP-35-CR-0000697-2014

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED APRIL 10, 2015

Ian Johnson appeals his judgment of sentence, which was entered on

August 12, 2014. Johnson’s counsel has filed a petition to withdraw as

counsel, together with an “Anders brief.” We find that Johnson’s counsel

has satisfied the Anders/Santiago1 requirements, and we agree with

counsel that Johnson has no meritorious issues to pursue on appeal.

Consequently, we grant counsel’s petition to withdraw as counsel, and we

affirm Johnson’s judgment of sentence.

____________________________________________

1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). In Santiago, our Supreme Court developed certain rules to ensure compliance with the principles underlying the Anders decision. J-S15021-15

This case involves the imposition of various sentences for crimes

resulting from two separate incidents. The first incident, docketed at 697-

2014, occurred on October 17, 2013, when the Lackawanna County Police

Department dispatched Officer Edward Sparrow and Officer Robert Hopkins

to 68 Seventh Avenue in Carbondale, Pennsylvania, on a report of a drunk

and disorderly male. Upon their arrival, the officers encountered Thomas

Brown, who stated that his roommate, Johnson, appeared drunk and started

to become argumentative and aggressive towards Brown. While both

officers spoke to Brown, Officer Sparrow noticed Johnson walking away from

the residence through an empty parking lot on Seventh Avenue. At that

time, Officer Sparrow identified himself as a Carbondale Police Officer and

ordered Johnson to stop. Johnson ignored this request and began to run

away. Officer Sparrow chased Johnson down Seventh Avenue. During this

foot pursuit, Johnson fell, allowing Officer Sparrow to apprehend him. Upon

apprehension, Johnson resisted arrest. Once in custody at the police station,

the officers shackled Johnson to the holding bench because he refused to

stay seated. After some time, Johnson removed the shackle and exited the

police station through the back door. Thereafter, officers noticed Johnson

crossing Main Street and immediately apprehended him. On March 15,

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2014, Johnson was charged with escape,2 resisting arrest,3 public

drunkenness,4 harassment,5 and two counts of disorderly conduct.6

The second incident, docketed at 605-2014, occurred on March 15,

2014, when Johnson struck his girlfriend in the face. When officers arrived

at the scene, Johnson became very aggressive and resisted arrest. After

officers apprehended him, they took Johnson back to the police station

where he continued to act disorderly. On March 18, 2014, Johnson was

charged with resisting arrest, disorderly conduct, harassment, simple

assault7 and criminal mischief.8

On May 9, 2014, in a consolidated proceeding, Johnson pleaded guilty

to resisting arrest, criminal mischief, and escape. On August 12, 2014,

Johnson was sentenced to consecutive sentences of four to twenty-four

months’ incarceration on the resisting arrest charge, eleven to twenty-four

months’ incarceration on the escape charge, and forty-five to ninety days’

2 18 Pa.C.S. § 5121(a). 3 18 Pa.C.S. § 5104. 4 18 Pa.C.S. § 5505. 5 18 Pa.C.S. § 2709(a)(3). 6 18 Pa.C.S. §§ 5503(a)(1); 5503(a)(4). 7 18 Pa.C.S. § 2701(a)(1). 8 18 Pa.C.S. § 3304(a)(1).

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incarceration on the criminal mischief charge. See Sentencing Order,

8/12/2014. On August 18, 2014, Johnson filed a motion for reconsideration

of sentence, which the trial court denied on August 20, 2014.

On September 4, 2014, Johnson filed a timely notice of appeal. On

September 10, 2014, the trial court ordered Johnson to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On September 24, 2014, Johnson filed a timely statement.

Before this Court, Johnson raises only one issue: “Whether the

sentences imposed were inappropriately harsh and excessive and an abuse

of discretion?” See Brief for Johnson at 4.

Because counsel for Johnson proceeds pursuant to Anders and

Santiago, we first must pass upon counsel’s petition to withdraw before

reviewing the merits of the sentencing issue presented by Johnson. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Prior to withdrawing as counsel under Anders, counsel must file a

brief that meets the requirements established by our Supreme Court in

Santiago. Pursuant thereto, the brief must provide the following

information:

(1) a summary of the procedural history and facts, with citations to the record; (2) reference to anything in the record that counsel believes arguably supports the appeal; (3) counsel’s conclusion that the appeal is frivolous; and (4) 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.

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Santiago, 978 A.2d at 361.

Counsel also must provide a copy of the Anders brief to her client.

Attending the brief must be a letter that advises the client of his rights to

“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;

or (3) raise any points that the appellant deems worthy of the court’s

attention in addition to the points raised by counsel in the Anders brief.”

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010). Finally,

to facilitate our review of counsel’s satisfaction of her obligations, she must

attach to her petition to withdraw as counsel the letter that she transmitted

to her client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.

Super. 2005).

Our review of counsel’s petition to withdraw and the accompanying

brief demonstrates that counsel has complied substantially with Santiago’s

requirements. Counsel has provided a procedural history detailing the

events relevant to this appeal with appropriate citations to the record. See

Anders Brief for Johnson at 5-6. Counsel also has articulated Johnson’s

position and has analyzed the information presented to the sentencing court

in favor of Johnson’s appeal with appropriate citations to the record and case

law. Ultimately, counsel has concluded that Johnson has no non-frivolous

basis for challenging his sentence because the trial court sentenced him

within the statutory limits for the underlying convictions and because there

was no evidence of an abuse of discretion. Id. at 7.

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Counsel also has sent Johnson a letter informing him that she has

identified no meritorious issues to pursue on appeal; that counsel has filed

an application to withdraw from Johnson’s representation; and that Johnson

may find new counsel or proceed pro se. Counsel has attached the letter to

her petition to withdraw, as is required by Millisock. See Petition to

Withdraw as Counsel, 12/11/2014. Accordingly, counsel has complied

substantially with Anders’ technical requirements. See Millisock, 873 A.2d

at 751.

We now must conduct an independent review of the record to

determine whether this appeal is, as counsel claims, wholly frivolous, or if

any meritorious issues may remain. Santiago, 978 A.2d at 355 (quoting

Anders, 386 U.S. at 744) (“[T]he court—not counsel—then proceeds, after a

full examination of all the proceedings, to decide whether the case is wholly

frivolous. If it so finds it may grant counsel’s request to withdraw . . . .”).

We now turn to the lone potential appealable issue identified by

Anders counsel: “Whether the sentences imposed were inappropriately

harsh and excessive and an abuse of discretion?” Anders Brief for Johnson

at 4. Johnson’s claim presents a challenge to the discretionary aspects of

sentencing. Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.

2008). “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). To obtain review of the merits of a challenge to the

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discretionary aspects of a particular sentence, an appellant must include a

Pa.R.A.P. 2119(f) statement in his or her brief.9 Therein, “the appellant

must show that there is a substantial question that the sentence imposed is

not appropriate under the Sentencing Code.” McAfee, 849 A.2d at 274. A

substantial question requires a demonstration that “the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)

(quoting Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)).

“Our inquiry must focus on the reasons for which the appeal is sought, in

contrast to the facts underlying the appeal, which are necessary only to

decide the appeal on the merits.” Id. (quoting Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc)) (emphasis in

Goggins).

9 In pertinent part, Rule 2119 provides as follows:

(f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument of the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f).

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The Rule 2119(f) statement enables this Court to determine whether

the appellant has raised a substantial question. Commonwealth v. Kiesel,

854 A.2d 530, 532 (Pa. Super. 2004). In the instant case, counsel for

Johnson has included in her brief a statement of reasons relied upon in

support of the request for appeal, as required by Rule 2119(f). See Anders

Brief for Johnson at 9-10. Accordingly, we will review the statement to

determine whether Johnson has raised a substantial question as to the

discretionary aspects of his sentences.

In her Rule 2119(f) statement, counsel for Johnson argues that the

trial court “failed to succinctly state on the record the reasons why it

believed that [Johnson] warranted such [a] long sentence for the escape

charge as required by 42 Pa.C.S. § 9721(b) and 204 Pa. Code §303.13(c).”

This Court previously has held that a trial court’s failure to state on the

record the reasons for imposing a sentence raises a substantial question.

See Commonwealth v. Simpson, 829 A.2d 334, 338 (2003). Accordingly,

counsel for Johnson has raised a substantial question in his Rule 2119(f)

statement, and we now review the merits of his sentencing claim.

Although the substantial question addresses the trial court’s failure to

state on the record its reasons for imposing the sentences, counsel initially

argues that “the sentences imposed were inappropriately harsh and

excessive.” See Anders Brief for Johnson at 10. However, counsel for

Johnson only provides the applicable governing law pertaining to

excessiveness claims and fails to develop her argument in a meaningful way.

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“The failure to develop an adequate argument in an appellate brief may also

result in waiver of the claim.” Commonwealth v. Beshore, 916 A.2d

1128, 1140 (Pa. Super. 2007) (quoting Commonwealth v. Gonzalez, 608

A.2d 528, 531 (Pa. Super. 1992)). Furthermore, counsel’s excessiveness

claim does not fall within the parameters of her substantial question, which

concerns only the trial court’s failure to state on the record its reasons for

sentencing.

Nonetheless, even if the issue was not waived, it lacks sufficient merit

to warrant any form of relief. Each of the sentences imposed were within

the standard range of the sentencing guidelines. See Commonwealth v.

Raven, 97 A.3d 1244, 1255 (Pa. Super. 2014) (holding that sentences

within standard range not an abuse of discretion). Additionally, the trial

court reviewed the presentence investigation report that was prepared in

anticipation of Johnson’s sentencing. Commonwealth v. Fowler, 893 A.2d

758, 766 (Pa. Super. 2006) (noting that, when a trial court receives a

presentence investigation report, we presume that the court adequately

considered relevant mitigating and aggravating factors). Furthermore, the

decision to run the sentences consecutively to each other was reasonable in

light of the fact that Johnson had committed the crimes to which he pleaded

guilty on two separate occasions. See Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa. Super. 2011) (holding that consecutive sentences were not

excessive for crimes occurring on different dates and that appellant is not

entitled to a “volume discount.”) Thus, we discern nothing in the record to

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indicate that the trial court’s sentence was unduly harsh or excessive, or

that the trial court abused its discretion in this regard.

Next, counsel argues on behalf of Johnson that “the [trial court]

abused its discretion when it failed to state on the record the reason for the

sentences imposed.” See Anders Brief for Johnson at 13. “[I]ssues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.” Commonwealth v. Cartrette, 83 A.3d

1030, 1042 (Pa. Super 2013) (quoting Commonwealth v. Kittrell, 19 A.3d

532, 538 (Pa. Super. 2011)). Although counsel provides a Rule 2119(f)

statement addressing the trial court’s failure to state on the record its

reason for sentencing, she did not raise this issue at his sentencing hearing

or in his post-sentence motion. See Notes of Testimony (“N.T.”),

8/12/2014, at 2-4; see also Motion for Reconsideration of Sentence

(“M.R.S.”), 8/18/2014, at 1-2. Counsel for Johnson only asserted in her

post-sentence motion that “the sentence imposed is excessive and harsh.”

M.R.S., 8/18/2014, at 2-4. Although we find that counsel has raised a

substantial question in his Rule 2119(f) statement, Johnson’s issue is waived

for failing to preserve it at his sentencing hearing or in his post-sentence

motion. Cartrette, 83 A.3d at 1042. Consequently, we agree with counsel

that the issue is frivolous, albeit for different reasons.

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After reviewing counsel’s Anders/Santiago brief carefully, we find

that it complies with the technical requirements imposed by those

precedents. We further find that counsel has taken all steps necessary to

ensure that her client’s interests are protected. We also have conducted an

independent review of the record. Pursuant thereto, we have concluded that

counsel’s characterization and analysis of the record is accurate, and that no

non-frivolous challenge to Johnson’s judgment of sentence will lie.

Moreover, our review has revealed no other non-frivolous issues that merit

consideration on appeal. Accordingly, we affirm Johnson’s judgment of

sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/10/2015

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