Com. v. Lewis, W.

• Court: Superior Court of Pennsylvania
• Decided: August 20, 2020
• Docket: 1468 WDA 2019
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIAM EDWARD LEWIS, : : Appellant : No. 1468 WDA 2019

Appeal from the Judgment of Sentence Entered July 1, 2019 in the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001568-2011, CP-07-CR-0002422-2008, CP-07-CR-0002424-2008, CP-07-CR-0002438-2008

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2020

William Edward Lewis (“Lewis”) appeals from the judgment of sentence

imposed following the revocation of his probation. Additionally, Russell J.

Montgomery, Esquire (“Attorney Montgomery”), has filed a Petition to

Withdraw as counsel, and a brief pursuant to Anders v. California, 386 U.S.

738 (1967). We grant counsel’s Petition to Withdraw, and affirm Lewis’s

judgment of sentence.

Regarding docket No. CP-07-CR-0002424-2008 (“No. 2424-2008”),

Lewis pled guilty to criminal trespass and terroristic threats on November 7,

2008. See 18 Pa.C.S.A. §§ 3505(a)(1)(ii), 2706(a)(1). The trial court J-S11042-20

sentenced Lewis to a term of 3 years of probation for his conviction of criminal

trespass, and 2 years of probation for the terroristic threats conviction.1

On the same date, Lewis pled guilty, at docket No. CP-XX-XXXXXXX-2008

(“No. 2438-2008”), to escape. See 18 Pa.C.S.A. § 5121(a). The trial court

sentenced Lewis to a term of 1 year of probation.2

Regarding docket No. CP-07-CR-0002422-2008 (“No. 2422-2008”), on

August 14, 2009, Lewis pled guilty to arson and burglary. See 18 Pa.C.S.A.

§§ 3301(a)(1)(i), 3502(a). The trial court sentenced Lewis to serve an

aggregate term of 10 years of probation, concurrently with the probationary

term he was serving at that time. Lewis was also ordered to comply with

special conditions and complete treatment requirements, and to pay

restitution and costs of prosecution.

On September 9, 2011, Lewis pled guilty, at docket No. CP-07-CR-

0001568-2011 (“No. 1568-2011”), to prohibited offensive weapons, theft

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1 It is unclear whether the trial court directed these sentences to run concurrently with or consecutive to one another, as the Sentencing Order does not appear in the certified record. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc) (stating that “the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty.”).

2 Similarly, absent the Sentencing Order on this docket, it is unclear whether the trial court directed this probationary term to be served concurrently with or consecutive to the sentence imposed at No. 2424-2008.

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from a motor vehicle, and possession of a small amount of marijuana. See

18 Pa.C.S.A. §§ 908(a), 3934; 35 P.S. § 780-113(a)(31). The trial court

sentenced Lewis to an aggregate term of 2 years of probation. The trial court

also directed Lewis to comply with all special conditions of probation, and to

pay costs and fines.3

The subsequent procedural history of this case is convoluted, and

includes multiple probation revocations and revocation sentencings.

Ultimately, Lewis appeared before the revocation court for a Gagnon

II4 hearing on April 18, 2019, based on technical violations of his probation

(i.e., changing his address without permission, failing to maintain regular

contact with his supervising agent, and use or possession of a narcotic).

During the hearing, Lewis stipulated that he was in violation of his probation.

The court deferred sentencing and directed the preparation of a pre-sentence

investigation report (“PSI”). During the sentencing portion of the Gagnon II

proceedings on July 1, 2019, the revocation court addressed concerns with

the PSI, and heard sentencing arguments from both the Commonwealth and

defense counsel. The revocation court also reviewed the Sentencing Order

with both parties and Lewis’s probation officer before entering it on the record.

3 The Sentencing Order does not specify whether this probationary term was to be served consecutive to or concurrently with any other probationary term he was still serving at that time.

4 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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At No. 2422-2008, the court revoked Lewis’s probation for both the

burglary and arson convictions, and sentenced him to serve concurrent terms

of 2 to 4 years in prison. Additionally, the revocation court determined that

Lewis had already served the maximum sentences for his convictions at Nos.

2438-2008, 2424-2008, and 1568-2011, and ordered those cases closed.

However, the court noted that Lewis would remain responsible for any

remaining costs, fines and restitution originally imposed for his terroristic

threats conviction at No. 2424-2008.

On July 11, 2019, Lewis filed a Motion for Modification of Sentence,

asserting that his revocation sentence is excessive because the revocation

court did not consider the relevant sentencing factors. The revocation court

conducted a hearing, and subsequently entered a Memorandum Opinion and

Order denying Lewis’s Motion for Modification of Sentence on September 16,

2019.

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On September 25, 2019, Lewis filed a Notice of Appeal at each docket,5

with each Notice identifying all four docket numbers.6 The revocation court

5 We observe that Lewis’s Notice of Appeal is facially untimely, as “[a] motion to modify a sentence imposed after a revocation [of probation] … will not toll the 30-day appeal period." Pa.R.Crim.P. 908(E); see also id., cmt. (explaining that a notice of appeal must be filed within 30 days of the imposition of sentence, unless the sentencing judge expressly grants reconsideration). However, in its July 1, 2019, Sentencing Order, the revocation court expressly stated that Lewis would have 10 days to file a post- sentence motion, and an additional 30 days to file an appeal following the entry of an order denying the motion. Because the revocation court’s misstatement of the appeal period is a “breakdown in the court’s operation,” we decline to quash the appeal on this basis. See Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (declining to quash facially untimely appeal because the sentencing court misstated the appeal period after imposing a revocation sentence).

6 On October 17, 2019, this Court entered an Order directing Lewis to show cause why his appeal should not be quashed in light of Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (stating that “when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.” (citing Pa.R.A.P. 341)). See also Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa. Super. 2019) (quashing an appeal, pursuant to Walker, where the appellant filed a notice of appeal at each docket number, but each notice of appeal contained multiple docket numbers). Lewis did not file a response, and this Court discharged the show-cause Order. Recently, this Court, sitting en banc, held that where separate notices of appeal are filed at each of multiple docket numbers, the inclusion of multiple docket numbers on each notice of appeal does not invalidate the notices of appeal. See Commonwealth v. Johnson, 2020 PA Super 164, at *4 (Pa. Super. filed July 9, 2020) (en banc); Commonwealth v. Larkin, 2020 PA Super 163, at *3 (Pa. Super. filed July 9, 2020) (en banc). In light of this Court’s decisions in Johnson and Larkin, we decline to quash Lewis’s appeal.

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subsequently directed Lewis to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, and Lewis timely complied.7

We must first determine whether Attorney Montgomery has complied

with the dictates of Anders in petitioning to withdraw from representation.

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

banc) (stating that “[w]hen faced with a purported Anders brief, this Court

may not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the [appellate] court.

Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

7By an Order entered December 12, 2019, this Court dismissed Lewis’s appeal due to counsel’s failure to file an appellate brief. Counsel subsequently filed an Application to Reinstate the Appeal, which this Court granted. On December 26, 2019, counsel filed the Petition to Withdraw as Counsel and Anders Brief.

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Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders brief 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

In the instant case, Attorney Montgomery has complied with the

requirements of Anders by indicating that he carefully and thoroughly

reviewed the record, and determined that Lewis’s appeal is wholly frivolous.

Further, Attorney Montgomery attached to his Petition to Withdraw a copy of

the letter he sent to Lewis, informing him of Attorney Montgomery’s intention

to withdraw, and advising him of his right to proceed pro se, retain alternate

counsel, and file additional claims.8 Finally, Attorney Montgomery’s Anders

Brief meets the standards set forth in Santiago. Because Attorney

Montgomery has complied with the procedural requirements for withdrawing

from representation, we will independently review the record to determine

whether Lewis’s appeal is, in fact, wholly frivolous.

8 Lewis did not file a pro se appellate brief, nor did he retain alternate counsel for this appeal.

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In the Anders Brief, Attorney Montgomery states that Lewis wishes to

challenge the discretionary aspects of his sentence. Anders Brief at 7. Lewis

argues that he should have received a sentence of probation, rather than a

new prison term. Id. at 5.

Lewis challenges the discretionary aspects of his sentence, from which

there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d

359, 363 (Pa. Super. 2013). Prior to reaching the merits of a discretionary

sentencing issue,

[this Court conducts] 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 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (quotation marks and some

citations omitted).

Here, Lewis filed a timely appeal and preserved his sentencing claim in

Motion for Modification of Sentence. Although we note the absence of the

requisite Pa.R.A.P. 2119(f) statement in the Anders Brief, “[w]here counsel

files an Anders brief, this Court has reviewed the matter even absent a

separate Pa.R.A.P. 2119(f) statement. Hence, we do not consider counsel’s

failure to submit a Rule 2119(f) statement as precluding review of whether

[Lewis’s] issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661

(Pa. Super. 2015) (citations omitted). Attorney Montgomery states in the

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Anders Brief that Lewis cannot show that the sentence was inappropriate or

inconsistent with the fundamental norms underlying the sentencing process.

Anders Brief at 7.

Nevertheless, we will consider the merits of Lewis’s claim (i.e., that he

should have been sentenced to another probationary term) as part of our

independent review. See generally Commonwealth v. Colon, 102 A.3d

1033, 1043 (Pa. Super. 2014) (concluding that an “[a]ppellant’s claim that

the trial court sentenced him to a term of total confinement based solely on a

technical violation raises a substantial question for our review.”). Our

standard of review is well settled:

The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment—a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Id.

The reason for this broad discretion and deferential standard of appellate review is that the sentencing court is in the best position to measure various factors and determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed.

The sentencing court’s institutional advantage is, perhaps, more pronounced in fashioning a sentence following the revocation

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of probation, which is qualitatively different than an initial sentencing proceeding. At initial sentencing, all of the rules and procedures designed to inform the court and to cabin its discretionary sentencing authority properly are involved and play a crucial role. However, it is a different matter when a defendant appears before the court for sentencing proceedings following a violation of the mercy bestowed upon him in the form of a probationary sentence. For example, in such a case, contrary to when an initial sentence is imposed, the Sentencing Guidelines do not apply, and the revocation court is not cabined by Section 9721(b)’s requirement that “the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and

quotation marks omitted).

Upon revocation of probation, a sentencing court may choose from any

of the sentencing options that existed at the time of the original sentence,

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(1) the

defendant has been convicted of another crime; or (2) the conduct of the

defendant indicates that it is likely that he will commit another crime if he is

no imprisoned; or (3) such a sentence is essential to vindicate the authority

of the court.” Id. § 9771(c).

Moreover, “[i]n every case in which the court … resentences an offender

following revocation of probation, … the court shall make as part of the record,

and disclose in open court at the time of sentencing, a statement of the reason

or reasons for the sentence imposed.” Id. § 9721(b); see also Pa.R.Crim.P.

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708(D)(2) (providing that “[t]he judge shall state on the record the reasons

for the sentence imposed.”). However, following the revocation of probation,

a sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statutes in question. See

Pasture, 107 A.3d at 28 (stating that “since the defendant has previously

appeared before the sentencing court, the stated reasons for a revocation

sentence need not be as elaborate as that which is required at initial

sentencing.”).

During the Gagnon II hearing, Lewis’s counsel acknowledged Lewis’s

life-long problem with addiction to controlled substances. N.T., 7/1/19, at 14,

15. Counsel explained that Lewis’s mother had introduced him to cocaine and

heroin when he was approximately 14 years old. Id. at 14. Additionally,

counsel pointed out that Lewis had committed technical violations only, and

had not been charged with new criminal offenses. Id.

Lewis admitted that he had attempted suicide by taking “all [of his]

psych medications two weeks after [he] was home.” N.T., 7/1/19, at 7. Lewis

also acknowledged that his probation had been revoked, and he had been

resentenced, on multiple other occasions. Id. at 9-10. Lewis additionally

exercised his right to allocution, at which time he stated as follows:

When I came home … I was out there working. I was not out there robbing people like my past and breaking in and hurting people[,] you know. In a way[,] I feel like I am a victim. I got hooked backed on drugs[,] you know. I am willing to change now. I know I said that many times in my life[,] and I just keep going

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down the wrong path[,] but I am willing to do whatever. Take this shot and go in inpatient ….

Id. at 26.

Prior to imposing the revocation sentence, the revocation court noted

that, “in the PSI[,] [] [Lewis] had made several assertions that [he] was not

going to comply with any sort of counseling or treatment[,] and [he] would

just max out [his] sentences.” Id. at 19. The revocation court also indicated

that Lewis’s prior record would be a “huge issue in terms of getting State

[Intermediate Punishment].” Id. at 23, 26. The revocation court stated the

following on the record:

[T]he problem with supervision is that you have to comply with all of the terms. I mean[,] your track record is pretty awful to say the least. I mean[,] your PSI is full of times that you have been revoked and resentenced in the past by other [j]udges[,] who tried to reinstate probation in an effort to give you that second and third chance….

….

You had a suicide issue, and I know that you struggle with drug and alcohol addiction. The state does have things that can help you with that, but you have to want to be different. We offer you programs, but you have to want to be different.

Id. at 27-28.

Further, in its Opinion, the revocation court explained the reasons for

imposing its sentence as follows:

[Lewis] had almost three dozen misconducts in state prison when previously incarcerated for a period of eighteen (18) months. He engaged in obstructive and insubordinate behavior when incarcerated in a Lawrence County Prison. During these periods of incarceration, [Lewis] also refused to complete

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recommended drug treatment plans. Instead, [Lewis] stated that he intended to “max out” his sentences. After release from incarceration and within twelve (12) days of completing a drug and alcohol evaluation for Lawrence County, [Lewis] overdosed on his psychiatric medication and was hospitalized. Approximately five[-]and[-]a[-]half months later[, Lewis] was reported by his [f]ather to be in in-patient detox and using heroin daily. The treatment provider for [Lewis] had closed out services, showing that the last contact was a “no-show” for a psychological evaluation scheduled by Lawrence County. [Lewis’s] family reported ongoing concerns with his use of drugs since an overdose in June [] 2018. State Parole and Probation was unable to reach [Lewis] from July 3, 2018[,] until August 24, 2018, despite daily attempts and [Lewis] was declared an absconder. Ultimately, [Lewis] was located in February [] 2019. Found on his person at the time was a heroin kit, needles, and Narcan. His girlfriend at the time of his apprehension indicated that she had to save him numerous times from overdosing.

Further …, [Lewis] acknowledged a “life-long” addiction problem. [Lewis] confirmed his past history of unstable mental health, as well. Finally, despite the [d]efense ultimately acknowledging in its brief that [Lewis] was not eligible for the drug court program in Lawrence County and despite the benefit for the information in the PSI, [d]efense [c]ounsel still sought probation.

It is unfortunate that [Lewis’s] prior record did not afford him the benefit of a State Intermediate Punishment program. However, this [c]ourt believes that [Lewis’s] failure to avail himself of programming previously offered and his apparent co- occurring mental health and drug addiction issues required more than a probation sentence could provide, particularly in light of his dismal performance while on supervision in the past.

Trial Court Opinion, 10/16/19, at 7-8.

The record confirms that the revocation court was provided with

sufficient information to make a fully informed sentencing decision following

the revocation of Lewis’s probation, and that the court adequately considered

the relevant sentencing factors. Moreover, where, as here, “the sentencing

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judge had the benefit of a [PSI], 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.”

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(citation omitted); see also N.T., 7/1/19, at 4 (wherein the trial court stated

that it had reviewed the PSI prior to the hearing). Discerning no abuse of

discretion by the revocation court, we will not disrupt Lewis’s sentence on

appeal.

Finally, our independent review of the record reveals no additional

potentially meritorious claims that Lewis could raise on appeal. We therefore

grant Attorney Montgomery’s Petition to Withdraw, and affirm Lewis’s

Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2020

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