Com. v. Jones, W.

• Court: Superior Court of Pennsylvania
• Decided: January 24, 2018
• Docket: 1232 MDA 2017
• Status: Unpublished

Opinion

J-S84008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIAM JONES : : Appellant : No. 1232 MDA 2017

Appeal from the Judgment of Sentence June 29, 2017 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005551-2016

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2018

William Jones (“Appellant”) appeals from the judgment of sentence

entered June 29, 2017, following his conviction of violations of the Pharmacy

Act, 63 P.S. §§ 390-1–390-13, forgery,1 and criminal attempt2 related to

offenses under the Controlled Substance, Drug, Device and Cosmetic Act, 35

P.S. §§ 780-101–780-144. Appellant’s counsel has filed an application to

withdraw his representation and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), which govern a withdrawal from representation on direct appeal.

Appellant has not filed a response to counsel’s petition. After careful review, ____________________________________________

1 18 Pa.C.S. § 4101(a)(3).

2 18 Pa.C.S. § 901(a). J-S84008-17

we grant counsel’s petition to withdraw and affirm the judgment of

sentence.

The convictions stem from Appellant’s participation in a scheme to

forge a physician’s signature on a Child and Family Support Services

prescription pad and receive oxycodone pills for his personal use. Appellant

submitted a forged prescription for oxycodone to a pharmacist at the Cumru

Township Giant Store on October 6, 2016. Because the pharmacist was

unable to verify the authenticity of the prescription, he did not fill it. A

Cumru Township police detective conducted an investigation of the incident,

which led to Appellant’s arrest. Following a waiver trial on June 29, 2017,

Appellant was convicted of the aforementioned offenses.

At sentencing, Appellant requested a mitigated range sentence. The

trial court sentenced Appellant on Count One (criminal attempt to commit

acquisition of a controlled substance by forgery) to incarceration for six to

twelve years, and on Count Four (forgery) to incarceration for one to five

years, concurrent to Count One. For sentencing purposes, Count Two

(unlawful acts under the Pharmacy Act) and Count Six (unlawful acts under

the Pharmacy Act) merged with Count One. Appellant received credit of 142

days for time served. The sentences were at the bottom of the mitigated

range of the sentencing guidelines.

Appellant filed a timely post-sentence motion for modification of his

sentence, which the trial court denied on July 11, 2017. This appeal

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followed. In lieu of a concise statement of errors pursuant to Pa.R.A.P.

1925(b), counsel filed a statement of intent to file an Anders/McClendon

brief on August 30, 2017. The PCRA court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on September 1, 2017.

Before we address the merits of this appeal, we first must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and

briefing requirements imposed upon an attorney who seeks to withdraw on

direct appeal. The procedural mandates are that counsel must:

1) 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; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted a thorough review of

Appellant’s case and determined that the appeal would be frivolous. Counsel

sent Appellant a copy of the Anders brief and petition to withdraw, as well

as a letter, a copy of which is attached to the petition. In the letter, counsel

advised Appellant that he could either represent himself on appeal or retain

private counsel to represent him.

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We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

in the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel 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; (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.

Santiago, 978 A.2d at 361.

Counsel’s brief is compliant with Santiago. It sets forth the factual

and procedural history of this case, outlines pertinent case authority, cites to

the record, and refers to an issue of arguable merit. Anders Brief at 3–20.

Further, the brief sets forth counsel’s conclusion that the appeal is frivolous

and the reasons for counsel’s determination. Id. at 27–28. “Therefore, we

now have the responsibility to make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact

wholly frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa.

Super. 2016) (citation and internal quotation marks omitted).

In the Anders brief, counsel presents a single issue for our

consideration: “Whether Appellant’s mitigated range sentence of 6 years to

12 years in a state correctional institution was manifestly excessive, clearly

unreasonable, and contrary to the fundamental norms underlying the

Sentencing Code where the court failed to fully consider [Appellant’s] age,

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health problems, and status as an honorably discharged veteran?” Anders

Brief at 9. This issue challenges the discretionary aspects of Appellant’s

sentence. We note that “[t]he right to appellate review of the discretionary

aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107

A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

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

We 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. [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

is made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

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Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

Herein, Appellant has satisfied the first, second, and third

requirements of the four-part test: He brought a timely appeal, challenged

his sentence in a post-sentence motion, and included in his Anders brief the

necessary separate concise statement of the reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f). Notice of Appeal,

8/8/17; Post Sentence Motion, 7/11/17, at ¶¶ 11–12; Anders Brief at 22.

We therefore turn to the final requirement: whether the question

raised by Appellant is a substantial question meriting our discretionary

review. With regard to this requirement, “[w]e examine an appellant’s Rule

2119(f) statement to determine whether a substantial question exists.”

Commonwealth v. Ahmad, 961 A.2d 884, 886–887 (Pa. Super. 2008).

Appellant’s Rule 2119(f) statement cites the general standards of the

Sentencing Code set forth at 42 Pa.C.S. § 9721 as support for his claim that

the sentencing court “did not properly consider aspects of the circumstances

of the crime or the character of Appellant.” Anders Brief at 22. “A claim

that a sentencing court sentenced a defendant without taking into account

his or her character and background . . . raises a substantial question that

the sentence is inappropriate under the Sentencing Code.” Commonwealth

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v. Luketic, 162 A.3d 1149, 1162 (Pa. Super. 2017). Because Appellant’s

argument raises a substantial question, we will review it on the merits.

Our standard of review follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In order to establish that the sentencing court abused its discretion, the defendant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. To determine whether the trial court made the proper considerations during sentencing, an appellate court must, of necessity, review all of the judge’s comments.

Luketic, 162 A.3d at 1163.

Our careful review of the record reveals that the trial court did not

abuse its discretion in sentencing Appellant. The trial court acknowledged

on the record that it had a presentence investigation report (“PSI”) on

Appellant. N.T., 6/29/17, at 34. The prosecutor placed on the record the

applicable provisions of the sentencing guidelines, Appellant’s prior record

score, and the Commonwealth’s sentencing recommendations, as well as the

fact that Appellant still had possession of the forged prescription weeks after

he attempted to fill it. Id. at 35–36. Additionally, the trial court heard from

defense counsel that Appellant’s repeat-felon prior record score was based

on offenses from 1968, 1974, and as recently as 2014; Appellant had health

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issues—a stomach aneurysm, three stents in his heart; Appellant was

seventy years old; and Appellant served in Vietnam and was honorably

discharged from the military. Id. at 36–37. The trial court also heard from

Appellant:

I’ve been sorry ever since this happened. Your Honor, I fought in the war a long time ago. You Honor, I fought for my country. I got old. I made a mistake, and I’m sorry. I’m kind of scared, too. I made a mistake, Your Honor. So I’m in your hands.

Id. at 37.

Before imposing sentence, the trial court explained its reasoning, as

follows:

All right. I have reviewed the PSI, it paints a bleak picture, starting in the 1960s. It encompasses very many different types of offenses, a substantial percentage of which are related to fraud and theft. I’ve taken other information in the PSI into account, including [Appellant’s] health, [Appellant’s] military service. I’ve also taken into account the fact that [Appellant] did not choose to defend this case by denial. I understand counsel’s use of the -- attempted use of the defense of duress. The fact that [Appellant] did not choose to testify and tell some ridiculous tale that would have been belied by the evidence is to his credit, and I’m going to recognize that.

* * *

I’ve also taken into account [Appellant’s] age. That being said, people who get up in years should be particularly careful not to run afoul of our laws, especially laws as serious as this one.

You are . . . a product of your record here. This would be an entirely different day if you did not have such an extensive record that extended over so many years. But I must also take into account the fact that I may not impose a sentence which would diminish the seriousness of this offense and also the brazenness of it; it’s pretty audacious. I don’t purport to pass

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myself off as a medical doctor, but a prescription for 120 doses of oxycodone, I don’t believe is in common use any longer, if it ever was.

N.T., 6/29/17, at 37–38.

Appellant has failed to establish, by reference to the record, that the

sentencing court ignored or misapplied the law, exercised its judgment for

reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly

unreasonable decision. Indeed, equipped with a PSI, the trial court

considered all of the factors Appellant identifies on appeal as relevant to

consideration of his personal circumstances and characteristics. See

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (“Where

the sentencing judge had the benefit of a presentence investigation report, it

will be presumed that he or she was aware of the relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.”). Thus, Appellant’s sentencing challenge

lacks merit.

Finally, we have independently reviewed the record in order to

determine if appellate counsel’s assessment about the frivolous nature of the

present appeal is correct. Tukhi, 149 A.3d at 886; see also

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(holding that, after determining counsel has satisfied the technical

requirements of Anders and Santiago, this Court must conduct an

independent review of the record to determine if there are additional, non-

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frivolous issues overlooked by counsel). After review of the issue raised by

counsel and our independent review of the record, we conclude that an

appeal in this matter is frivolous. Accordingly, we grant appellate counsel

permission to withdraw and affirm the judgment of sentence.

Application to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/24/2018

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