Com. v. Ott, J.

• Court: Superior Court of Pennsylvania
• Decided: August 12, 2019
• Docket: 594 MDA 2019
• Status: Unpublished

Opinion

J -S41002-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JERRY DOUGLAS OTT

Appellant : No. 594 MDA 2019

Appeal from the Judgment of Sentence Entered February 27, 2019 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000991-2018

BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2019

Jerry Douglas Ott appeals from the judgment of sentence, entered in

the Court of Common Pleas of the 39th Judicial District, Franklin County

Branch, following his convictions by a jury for two counts of driving under the influence ("DUI").1 Counsel has filed a brief pursuant to Anders and

Santiago,2 and a petition to withdraw. For the reasons that follow, we grant

counsel's petition to withdraw and affirm Ott's judgment of sentence.

On December 21, 2017, Ott was pulled over for having an expired

registration while driving on the 1700 block of Sollenberger Road in Hamilton

1 75 Pa.C.S.A. §§ 3802(d)(1) and (2) (controlled substance and impaired ability, respectively).

2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

Retired Senior Judge assigned to the Superior Court. J -S41002-19

Township, Franklin County. Field sobriety tests were performed at the scene

of the traffic stop, followed by a blood draw that revealed the presence of

morphine and codeine in Ott's system.3 Ott was subsequently charged with

two counts of DUI and proceeded to a trial before a jury which, on January 3,

2019, convicted him of both counts. On February 27, 2019, the trial court

sentenced Ott to 12 to 60 months' imprisonment. Post -sentence motions were

denied on March 14, 2019. Ott filed a timely appeal on April 12, 2019,

followed by a court -ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

Prior to reviewing Ott's claims, we must determine if counsel has

complied with the procedural requirements for withdrawal. An attorney

seeking to withdraw on appeal must comply with certain procedural and

briefing requirements. Specifically, 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 [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.

3 The particular concentrations of morphine and codeine in Ott's blood indicated that he had ingested heroin. See N.T. Trial, 1/3/19, at 84.

-2 J -S41002-19

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an 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. Santiago, 978 A.2d at 361. Counsel also must provide the appellant with a copy of the Anders brief,

together with a letter that advises the appellant of his or her right 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 [C]ourt'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) (citation

omitted). Substantial compliance with these requirements is sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).

Here, counsel has filed a petition to withdraw as counsel and an Anders

brief. In her petition, counsel states that, after a conscientious examination

of the record, she has determined that the appeal is wholly frivolous. Petition

to Withdraw, 5/30/19, at ¶ 6. Additionally, counsel states in her petition that

she mailed a copy of the Anders brief to Ott and a letter, which she attached

to the petition, advising him of his right to retain private counsel, represent

-3 J -S41002-19

himself on appeal, and/or raise any additional issues he believed the Court

should consider.4 See Letter from Casey S. Bogner, Esquire, to Ott, 5/30/19,

at 2. Finally, counsel's brief sets out two issues of arguable merit and,

pursuant to the dictates of Santiago, explains why she believes the appeal to

be frivolous. Accordingly, counsel has substantially complied with the

requirements of Anders and Santiago. We now turn to our independent

review of the record and the claims raised by Ott.

Ott first claims that the trial court erred by allowing approximately 30

plainclothed cadets from the Pennsylvania Wildlife Conservation Commission

to be present in the courtroom audience during his trial. Ott asserts that the

presence of the cadets was prejudicial to him because "they appeared to be

present on behalf of the Commonwealth," which "created the impression for

the jury that the crime [Ott was] charged with committing [was] an incredibly

serious crime that demand[ed] the attention of a significant number of off -

duty law enforcement officials." Anders Brief, at 14. This claim is waived.

It is axiomatic that the absence of a contemporaneous objection results

in the waiver of the issue on appeal. Commonwealth v. Leaner, 202 A.3d

749, 771 (Pa. Super. 2019). See Pa.R.A.P. 302(a) ("Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.").

Here, at the outset of trial and prior to the jury entering the courtroom, the court advised counsel as follows:

4 Ott has not filed a response to counsel's Anders brief.

- 4 - J -S41002-19

THE COURT: All right. Then what we will do is go ahead and get the jury and I am just going to advise the jury that we do have a group of cadets from the Wildlife Conservation Academy observing the trial process and that they should not be distracted by any of you here in the courtroom but that you are all here as guests of the [c]ourt.

N.T. Trial, 1/3/19, at 4. After the members of the jury were sworn, the court informed them as

follows:

I wanted to let you know we have a full house here today. There are cadets from the Pennsylvania Wildlife Conservation Academy who are guests of the [c]ourt today observing the trial process. So I'm happy to welcome the cadets here today as they learn about what happens in the course of a trial. So I have asked them to be very mindful and respectful of the fact that the jury should not be distracted by them. So I wanted you to know who they are and why they're here. And now you can forget that they're here. Okay. And so I'm glad that the [c]ourt can offer the opportunity to them as they go through their academy. Id. at 5.

At no time following either statement by the court did trial counsels

object to the presence of the cadets in the courtroom. Accordingly, any claim

that their presence prejudiced Ott in the eyes of the jury is waived on appeal.

Leaner, supra. Secondly, Ott claims that his sentence of 12 to 60 months' incarceration

in a state correctional institution was manifestly unreasonable where "his time

would be more productive in the local county jail," where he could participate

5 Ott was not represented at trial by current counsel. - 5 - J -S41002-19

in drug, alcohol and mental health treatment and better care for his family.

Brief of Appellant, at 15-16.

Ott's claim implicates the discretionary aspects of his sentence. Such a

claim does not entitle an appellant to review as a matter of right.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,

before this Court can address such a discretionary challenge, an appellant

must comply with the following requirements:

An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test: (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. Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

Here, Ott filed a post -sentence motion to reconsider sentence, followed

by a timely notice of appeal to this Court. He has also included in his brief a

concise statement of reasons relied upon for allowance of appeal with respect

to the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).

Accordingly, we must now determine whether he has raised a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code.

The determination of what constitutes a substantial question must be

evaluated on a case -by -case basis. Commonwealth v. Paul, 925 A.2d 825, - 6 - J -S41002-19

828 (Pa. Super. 2007). "A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge's actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process." Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)

(citation and quotation marks omitted).

In the Rule 2119(f) statement included by counsel in her Anders brief,

counsel does not specify the particular claim Ott wished to raise. Rather,

counsel averred that, because Ott's sentence was squarely within the standard

range of the Sentencing Guidelines, Ott is unable to put forth a colorable

argument to warrant allowance of appeal. Although Ott's Rule 2119(f)

statement is defective, in cases where counsel files an Anders brief, this Court

has reviewed the matter even absent a separate Pa.R.A.P. 2119(f) statement.

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).

Accordingly, we do not consider the defect in counsel's Rule 2119(f) statement

as precluding review of whether Ott's issue is frivolous.6

Ott claims he has

significant medical issues that will be exacerbated by a length[y] prison sentence, that a lengthy prison sentence will cause him to lose his social security disability income and in turn lose his home where his pregnant daughter is residing, and that, while his is

6 brief in this matter. "[I]n We also note that the Commonwealth did not file a the absence of any objection from the Commonwealth, we are empowered to review claims that otherwise fail to comply with Rule 2119(f)." Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006). -7 J -S41002-19

incarcerated, he is unable to participate in outpatient drug and alcohol . or mental health treatment[.] . .

Anders Brief, at 16. He asserts that "a local sentence would have better afforded him the ability to care for himself and his family and comply with his

treatment obligations" and, thus, his state sentence was "manifestly

unreasonable." Id.

This Court has previously held that a bald claim of excessiveness,

combined with an assertion that the court failed to properly consider the

defendant's personal circumstances, does not raise a substantial question

entitling a petitioner to review of his claim. Commonwealth v. Coolbaugh,

770 A.2d 788, 793 (Pa. Super. 2001) (claim that the court did not consider

his personal life situation of having drug problem does not raise substantial

question). See also Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa.

Super. 1999) (argument that court did not adequately consider defendant's

personal life situation as grandmother who had to provide care for small child

did not raise substantial question so as to permit appellate review of

discretionary aspects of sentence). Accordingly, Ott fails to raise a substantial

question and we decline to review the merits of his claim.

Judgment of sentence affirmed. Petition to withdraw granted.

-8 J -S41002-19

Judgment Entered.

seph D. Seletyn, Prothonotary

Date: 08/12/2019

-9