Com. v. Krolick, R.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

ROBERT KROLICK Appellant No. 365 WDA 2014

Appeal from the Judgment of Sentence February 5, 2014 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000344-2009

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

ROBERT KROLICK Appellant No. 366 WDA 2014

Appeal from the Judgment of Sentence February 5, 2014 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000345-2009

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.* MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 04, 2014 Appellant, Robert Krolick, appeals from the judgment of sentence entered in the Jefferson County Court of Common Pleas, following revocation

_________________________

*Retired Senior Judge assigned to the Superior Court.

The relevant facts and procedural history of this appeal are as follows.

On October 7, 2009, Appellant pled guilty to multiple offenses at separate docket numbers. At No. 344 of 2009, Appellant pled guilty to delivery of a controlled substance. The court accepted the plea and sentenced Appellant to five (5) months to two (2) years less one (1) day of imprisonment, followed by three (3) years plus one (1) day of probation. At No. 345 of 2009, Appellant pled guilty to theft by deception. The court accepted the plea and sentenced Appellant to tw Appellant subsequently violated the terms of his probation. The court conducted a revocation hearing on May 5, 2010. At the conclusion of the hearing, the court revoked probation at both docket numbers. At No. 344 of 2009, the court re- intermediate punishment. At No. 345 of 2009, the court re-sentenced

at No. 344 of 2009.

Appellant again violated the terms of his probation. The court conducted a revocation hearing on December 15, 2010. At the conclusion of the hearing, the court revoked both the intermediate punishment and the probation sentences. At No. 344 of 2009, the court re-sentenced Appellant

unrelated docket number. At No. 345 of 2009, the court re-sentenced

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imposed at No. 344 of 2009.

Appellant subsequently violated his probation after pleading guilty to new offenses. The court conducted a revocation hearing on February 5, 2014. At the conclusion of the hearing, the court revoked all probation. At No. 344 of 2009, the court re-sentenced Appellant to six (6) to fifteen (15)

-sentenced Appellant

court ordered both sentences to run consecutive to another sentence at an unrelated docket number. Appellant timely filed a post-sentence motion on

Correctional Institution constitute an extraordinarily long period of incarceration, and are e - Sentence Motion, filed 2/14/14, at 2). On February 19, 2014, the court denied the post-sentence motion.

Appellant timely filed a notice of appeal on March 4, 2014. On March 6, 2014, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on March 21, 2014.

As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

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petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon[1]

brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.

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1 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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* * *

Under Anders, the right to counsel is vindicated by

at

arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed

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

peal

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.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel filed a petition for leave to withdraw representation. The petition states counsel reviewed the record and all correspondence with Appellant, and counsel concluded the appeal would be wholly frivolous. Counsel also supplied Appellant with a copy of the withd proceed pro se or with new privately retained counsel to raise any additional Anders

brief, counsel provides a summary of the facts and procedural history of the case. Counsel refers to facts in the record that might arguably support the issue raised on appeal and offers citations to relevant law. The brief also frivolous. Thus,

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counsel has substantially complied with the requirements of Anders and Santiago.

As Appellant has filed neither a pro se brief nor a counseled brief with new privately retained counsel, we review this appeal on the basis of the issue raised in the Anders brief:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION -LEVEL

PROBATION AND RE-SENTENCED HIM TO SERVE AN AGGREGATED SENTENCE OF A MINIMUM SIX (6) YEARS THREE (3) DAYS TO A MAXIMUM OF SEVENTEEN (17)

CORRECTIONAL

PROBATION.

(Anders Brief at 3).

On appeal, Appellant asserts the court imposed an unreasonable sentence in light of the probation violations at issue. Further, Appellant contends the court failed to provide adequate reasons to justify the sentence. Appellant concludes the court abused its discretion by imposing

discretionary aspects of his sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing).

When reviewing the outcome of a revocation hearing, this Court is limited to determining the validity of the proceeding and the legality of the judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d

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violation meriting revocation when it shows, by a preponderance of the evidence, that the prob his probation, and that probation has proven an ineffective rehabilitation tool

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super. 2007), appeal denied sentence of probation is that the defendant will not commit a further Commonwealth v. Infante, 585 Pa. 408, 420, 888 A.2d 783, 790 (2005) (quoting Commonwealth v. Mallon, 406 A.2d 569, 571 (Pa.Super. 1979)).

Notwithstanding the stated scope of review suggesting only the legality of a sentence is reviewable, an appellant may also challenge the discretionary aspects of a sentence imposed following revocation. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Id. at 912. Prior to reaching the merits of a discretionary sentencing issue:

[W]e 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. 720; (3) whether

(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).

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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

When appealing the discretionary aspects of a sentence, an appellant

separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial

decision to exceptional Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original) (internal quotation marks omitted).

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 the

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were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the Sierra, supra at 912-13. A claim that a sentence is

Rule 2119(f) statement sufficiently articulates the manner in which the sentence imposed violates a specific provision of the Sentencing Code or the norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d at 627. A bald assertion of excessiveness does not raise a substantial question. Commonwealth v. Trippett, 932 A.2d 188 (Pa.Super. 2007).

Instantly, Appellant does not identify a specific provision of the Sentencing Code or a fundamental norm underlying the sentencing process that the court violated in imposing the latest revocation sentence. Absent

substantial question. See id.

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sentence motion did not include this claim. Appellant also failed to raise the claim at the revocation hearing. Instead, Appellant asserts the claim for the first time on appeal. Thus, the claim is waived. See Mann, supra.

Even if Appellant had properly preserved the claim, he would not be entitled to relief. At the time of re-sentencing, the court noted that Appellant had pled guilty to the new offenses of possession of drug

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paraphernalia and forgery. Thereafter, the court made the following on-the- record statement:

boot camp and other things, that you had a job and not only came down with a drug paraphernalia charge but then you got involved in forgery, I had it set for a maximum sentence, which would be approximately nine and a half years to 17 years.

So then after the assistant district attorney was saying that she thought she would give you some consideration, I

separate sets of charges, because of the amount of time that it should go to no violations. I think you need some more serious time.

(See N.T. Revocation Hearing, 2/5/14, at 5.) In its opinion, the court elaborated on its reasons for the sentence imposed:

Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of total

makes it likely that he will commit another crime if he is not imprisoned or to vindicate the authority of the court.

As the record reflects, both reasons were implicated in this case. [Appellant] had already been given the benefit of boot camp and other rehabilitative measures and had proven that they were ineffective to curb his criminal

kind of conduct for which he was already on probation.

Accordingly, more exacting consequences were both warranted and appropriate under the circumstances, and as the record reflects, the [c]ourt adequately considered all relevant circumstances prior to imposing sentence.

(See Trial Court Opinion, filed March 25, 2014, at 1-2.)

Here, the court emphasized that prior, less severe, sentences had

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support the sentence imposed. See Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super. 2 sentencing philosophy is not required; rather, record as whole must reflect

of offender). Accordingly, we affirm the judgment of sentence and grant

Judgment of sentence affirmed; petition to withdraw is granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/4/2014