Com. v. Payne, B.

• Court: Superior Court of Pennsylvania
• Decided: August 29, 2019
• Docket: 370 EDA 2019
• Status: Unpublished

Opinion

J-S42039-19 & J-S42040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIONNE PAYNE : : Appellant : No. 370 EDA 2019

Appeal from the Judgment of Sentence Entered December 18, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002014-2013

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIONE PAYNE : : Appellant : No. 371 EDA 2019

Appeal from the Judgment of Sentence Entered December 18, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000566-2008

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED AUGUST 29, 2019

Appellant, Brione Payne, appeals from judgments of sentence imposed

by the Court of Common Pleas of Delaware County (trial court) on December

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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18, 2018 for his violation of parole and probation in two criminal cases, CP-

23-CR-0000566-2008 (No. 566-2008) and CP-23-CR-0002014-2013 (No.

2014-2013).1 Appellant’s appellate counsel has filed applications to withdraw

and Anders2 briefs, stating that the appeals are wholly frivolous. After careful

review, we grant counsel’s applications to withdraw and affirm.

In No. 566-2008, Appellant pled guilty on May 15, 2018 to charges of

simple assault and reckless endangerment3 and was sentenced to 10 days to

23 months’ imprisonment for the simple assault conviction and a consecutive

two years’ probation for reckless endangerment. No. 566-2008 Guilty Pleas;

No. 566-2008 Certificate of Imposition of Judgment of Sentence, 5/15/08.

Appellant was immediately paroled, but on July 28, 2009, that parole was

revoked and he was sentenced to serve the full 682 days of backtime on the

simple assault conviction, extending his maximum date for that conviction to

June 19, 2011 and the date that his probation would end on the reckless

endangerment conviction to June 19, 2013. No. 566-2008 Certificate of

Imposition of Judgment of Sentence, 7/28/09; No. 566-2008 Request for

1 Appellant’s name appears as “Brionne Payne” in 370 EDA 2019 and the record in No. 2014-2013 and as “Brione Payne” in 371 EDA 2019 and the record in No. 566-2008. The transcript of the consolidated sentencing at issue here states his name as “Brione Payne.” 2 Anders v. California, 386 U.S. 738 (1967). 3 18 Pa.C.S. §§ 2701 and 2705, respectively.

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Bench Warrant, 1/9/13. After Appellant had completed serving his sentence

for the simple assault conviction, his probation on the reckless endangerment

conviction was revoked on August 27, 2013 based on his guilty plea to

manufacture, delivery or possession with intent to deliver a controlled

substance (PWID)4 for which he had been arrested in February 2013,5 and he

was resentenced on the reckless endangerment conviction to 111/2 months to

23 months imprisonment. No. 566-2008 Certificate of Imposition of Judgment

of Sentence, 8/27/13; CP-23-CR-0001686-2013 Docket Entries at 1-3.

In No. 2014-2013, Appellant pled guilty on May 9, 2013, to a single

count of PWID based on a sale of a .10 gram oxycodone pill to an undercover

officer in January 2013. No. 2014-2013 Guilty Plea; No. 2014-2013 Certificate

of Imposition of Judgment of Sentence, 5/9/13; No. 2014-2013 N.T.

Preliminary Hearing at 4-6. Appellant was sentenced to three years’ probation

for this conviction. No. 2014-2013 Certificate of Imposition of Judgment of

Sentence, 5/9/13.

On July 22, 2015, while on parole on the reckless endangerment

sentence in No. 566-2008 and serving his probation in No. 2014-2013,

Appellant was arrested in Philadelphia and charged with robbery, burglary,

4 35 P.S. § 780-113(a)(30). 5 This PWID conviction is not at issue in these appeals.

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firearms offenses, conspiracy, and other offenses. No. 2014-2013 Request

for Bench Warrant, 3/19/16; N.T. Gagnon II6 Hearing, 12/18/18, at 4-5; CP-

51-CR-0009669-2015 Docket Entries at 1, 3. On June 25, 2018, Appellant

pled guilty in that Philadelphia County case to robbery, burglary, conspiracy,

and possession of a firearm by a prohibited person and was sentenced for

those offenses to an aggregate term of 31/2 to 10 years’ imprisonment,

followed by two years’ probation. N.T. Gagnon II Hearing, 12/18/18, at 5;

CP-51-CR-0009669-2015 Docket Entries at 5-7.

On December 18, 2018, the trial court held a Gagnon II Hearing in

both No. 566-2008 and No. 2014-2013. Appellant admitted that he pled guilty

to robbery, burglary, conspiracy, and possession of a firearm by a prohibited

person and that those crimes were violations of his parole in No. 566-2008

and his probation in No. 2014-2013. N.T. Gagnon II Hearing, 12/18/18, at

3, 5. The Commonwealth requested that the trial court impose 165 days

backtime in No. 566-2008, the remaining unserved portion of Appellant’s

reckless endangerment sentence, and that in No. 2014-2013 the court revoke

Appellant’s probation and resentence him to one to two years’ imprisonment

followed by one year of probation. Id. at 3-4. The Commonwealth requested

that that these sentences run concurrently with each other, but consecutive

to the new sentence in the Philadelphia case. Id. at 4. Appellant did not

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

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contend that the proposed sentences themselves were inappropriate or

excessive, but argued that the sentences in No. 566-2008 and No. 2014-2013

should run concurrently with the new 31/2 to 10 year sentence. Id. at 5.

Appellant also spoke at the hearing concerning vocational training that he had

obtained and violence prevention and other rehabilitative programs in which

he had participated while in prison on the new charges. Id. at 5-7.

Following Appellant’s statement, the trial court found Appellant in

violation of his parole in No. 566-2008 and, in No. 2014-2013, found Appellant

in violation of his probation and revoked his probation. N.T. Gagnon II

Hearing, 12/18/18, at 9. The court imposed a sentence of 165 days backtime

in No. 566-2008 and a sentence of 9-24 months followed by one year of

probation in No. 2014-2013 and ordered that these sentences run

concurrently to each other and consecutive to Appellant’s new 31/2 to 10 year

sentence. Id. at 9-10; No. 566-2008 Certificate of Imposition of Judgment of

Sentence, 12/18/18; No. 2014-2013 Certificate of Imposition of Judgment of

Sentence, 12/18/18.

On December 27, 2018, Appellant filed a timely motion for

reconsideration of sentence in No. 2014-2013, arguing that the trial court

should reconsider its imposition of a 9-24 month sentence consecutive to

Appellant’s new sentence in light of Appellant’s rehabilitative efforts while in

prison. The trial court denied this post-sentence motion on January 2, 2019.

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On January 17, 2019, Appellant filed timely direct appeals from both

judgments of sentence.7 On June 5, 2019, appellate counsel filed Anders

briefs and applications to withdraw as counsel in both appeals. In each of his

Anders briefs, appellate counsel presents the following issue:

Whether the term of incarceration imposed herein was harsh and excessive under the circumstances due to its imposition as a consecutive sentence.

370 EDA 2019 Anders Br. at 3; 371 EDA 2019 Anders Br. at 3. Appellant

has not filed any pro se response to counsel’s applications to withdraw or

Anders briefs. The Commonwealth filed briefs in support of affirmance of the

judgments of sentence in both appeals.

Before this Court can consider the merits of these appeals, we must first

determine whether appellate counsel has satisfied all of the requirements that

court-appointed counsel must meet before leave to withdraw may be granted.

Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en

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

(en banc).

To withdraw from representing a convicted defendant on direct appeal

on the basis that the appeal is frivolous, counsel must (1) petition the court

7 In accordance with Pa.R.A.P. 1925(c)(4), appellate counsel filed statements of intent to file an Anders brief in lieu of statements of errors complained of on appeal. The trial court filed Rule 1925 opinions in both cases stating that in accordance with Anders procedure, it would defer issuing an opinion in support its judgment of sentence until this Court rules on whether there are arguably meritorious issues for review.

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for leave to withdraw stating that he has made a conscientious examination

of the record and has determined that the appeal would be frivolous; (2) file

a sufficient Anders brief; and (3) provide a copy of the Anders brief to the

defendant and advise the defendant of his right to retain new counsel or

proceed pro se and to raise any additional points that he deems worthy of the

court’s attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183

(Pa. Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply

with the all of the following requirements:

[T]he 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); see also

Dempster, 187 A.3d at 270; Commonwealth v. Zeigler, 112 A.3d 656, 660

(Pa. Super. 2015). If counsel has satisfied the above requirements, it is then

this Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is wholly frivolous.

Dempster, 187 A.3d at 271; Zeigler, 112 A.3d at 660.

In these appeals, appellate counsel states in each of his applications to

withdraw that he has reviewed the entire record and determined that there

are no non-frivolous grounds for the appeal. Appellate counsel’s June 3, 2019

letters to Appellant provided copies of the Anders briefs to Appellant and

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advised him of his right either to retain new counsel or to proceed pro se on

appeal to raise any points he deems worthy of the court’s attention. Further,

each of appellate counsel’s Anders briefs provides procedural and factual

summaries of the case with references to the record and cites and discusses

the applicable law on which counsel bases his conclusion that there are no

non-frivolous issues that he can raise on Appellant’s behalf. Appellate counsel

has thus filed sufficient Anders briefs and has fully complied with the

procedural requirements for withdrawal as counsel in both appeals.

We therefore proceed to conduct an independent review to ascertain

whether the appeals are indeed wholly frivolous. This Court first considers

the issues raised by counsel in the Anders brief and determines whether they

are in fact frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.

Super. 2018) (en banc); Dempster, 187 A.3d at 272. In addition, if the Court

finds all of those issues frivolous, this Court conducts an examination of the

record to discern if there are any other issues of arguable merit overlooked by

counsel. Yorgey, 188 A.3d at 1197; Dempster, 187 A.3d at 271-72.

The lone issue raised in counsel’s Anders briefs is whether the

sentences imposed in the two cases are excessive, in light of Appellant’s

rehabilitative efforts, due to their imposition as consecutive with respect to

Appellant’s new conviction. These are challenges to the discretionary aspects

of Appellant’s sentences and are therefore not appealable as of right.

Dempster, 187 A.3d at 272; Bynum-Hamilton, 135 A.3d at 184. Rather,

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an appeal from the discretionary aspects of a sentence is permitted only after

this Court determines that there is a substantial question that the sentence

was not appropriate under the Sentencing Code. Dempster, 187 A.3d at

272; Bynum-Hamilton, 135 A.3d at 184; Zeigler, 112 A.3d at 661.8

A claim that a sentence within statutory limits is excessive is generally

not sufficient to raise a substantial question, absent a claim that the sentence

violates a specific provision of the Sentencing Code or that the sentencing

court did not consider sentencing guidelines or factors concerning the crimes

and the defendant that the court is to consider under the Sentencing Code.

Dempster, 187 A.3d at 272-23 n.6; Zeigler, 112 A.3d at 662;

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012);

Commonwealth v. Titus, 816 A.2d 251, 255–56 (Pa. Super. 2003). The

8 An appellant challenging the discretionary aspects of sentence must also comply with Pa.R.A.P. 2119(f) in his appellate brief and have preserved the issue in the trial court at sentencing or by filing a timely post sentence motion. See, e.g., Dempster, 187 A.3d at 272. Appellant has satisfied these requirements in both appeals. Appellant’s Anders briefs in both appeals include the concise statement of reasons for allowance of appeal of discretionary aspects of sentence that Pa.R.A.P. 2119(f) requires. 370 EDA 2019 Anders Br. at 8-9; 371 EDA 2019 Anders Br. at 8-9. Appellant’s post sentence motion in No. 2014-2013 satisfies the requirement of preservation of the issue in the trial court. Appellant did not file a post sentence motion in No. 566-2008, but did preserve the issue in the trial court by objecting at the Gagnon II hearing to imposition of a consecutive sentence and making the same argument as he asserts here concerning his rehabilitative efforts. N.T. Gagnon II Hearing, 12/18/18, at 5-7. We therefore do not find the issue raised by appellate counsel to be barred by waiver in either appeal.

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fact that sentences for separate criminal episodes are imposed consecutively

does not raise a substantial question where the resulting total aggregate

sentence is not extraordinarily lengthy for the criminal conduct at issue.

Commonwealth v. Radecki, 180 A.3d 441, 468-70 (Pa. Super. 2018);

Commonwealth v. Zirkle, 107 A.3d 127, 133-34 (Pa. Super. 2014).

These appeals do not raise a substantial question that either of the

sentences was inappropriate under the Sentencing Code. The record is clear

that the sentencing court considered the mitigating factors asserted by

Appellant. Following Appellant’s statement concerning his rehabilitative

efforts, the trial court decided to impose a shorter minimum sentence than

the Commonwealth recommended in No. 2014-2013 and ordered that the

backtime on the parole revocation in No. 566-2008 would run concurrently

with that sentence. N.T. Gagnon II Hearing, 12/18/18, at 8-10.

The sentences were in accordance with the Sentencing Code and were

not extreme. Imposing a sentence of imprisonment for the probation

revocation in No. 2014-2013 was proper under the Sentencing Code, as

Appellant had been convicted of new, serious crimes of violence. 18 Pa.C.S.

§ 9771(c)(1). The sentence imposed, 9-24 months plus one year of probation,

was not unduly harsh or lengthy. To the contrary, it was far below the

statutory maximum for this PWID offense, which is 15 years. 35 P.S. § 780-

113(f)(1); Commonwealth v. Strasser, 134 A.3d 1062, 1063 n.2 (Pa.

Super. 2016).

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The judgment in No. 566-2008 was a parole revocation and

recommitment requiring that Appellant serve the remainder of his sentence

from which he was on parole. Where parole is revoked, the court is limited to

recommitting the defendant to serve his existing sentence and does not have

the authority to impose a new penalty. Commonwealth v. Kalichak, 943

A.2d 285, 290 (Pa. Super. 2008); Commonwealth v. Galletta, 864 A.2d

532, 538 (Pa. Super. 2004). Recommitment to serve the remainder of a

sentence is therefore not subject to review for excessiveness; the only

question in such a case is whether the court erred in revoking parole and

recommitting him to confinement. Kalichak, 943 A.2d at 291; Galletta, 864

A.2d at 539. No such error can be shown here. Conviction of a new crime is

a legally sufficient reason for revocation of a defendant's parole and

recommitting him to serve the remainder of his sentence. Kalichak, 943 A.2d

at 291; Galletta, 864 A.2d at 539. Indeed, Appellant stipulated to the

revocation of parole here and has not contended that the backtime imposed

by the trial court exceeded the remaining portion of his sentence in No. 566-

2008. N.T. Gagnon II Hearing, 12/18/18, at 3, 5; 371 EDA 2019 Anders

Br. at 9.

Moreover, the sentences were not imposed consecutively with respect

to each other and the total aggregate sentence of 9-24 months in these cases

in combination with the 31/2 to 10 year sentence for the new convictions with

which these sentences are consecutive does not result in an excessive

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sentence. The new convictions are for completely different conduct committed

by Appellant and the resulting aggregate sentence of 4 years and 3 months

to 12 years is not only less than the statutory maximum for Appellants’ PWID

conviction here, it is far below the statutory maximum of 20 years for each of

the robbery, burglary, and conspiracy convictions in the new case.9 Compare

Radecki, 180 A.3d at 468-71 (challenge to consecutive sentences for

convictions under 35 P.S. § 780–113(a) that resulted in aggregate sentence

of 11 years and 1 month to 22 years and 2 months did not raise a substantial

question where the convictions arose out of separate criminal acts) and

Zirkle, 107 A.3d at 133-34 (consecutive sentences for three burglaries that

resulted in an aggregate sentence of 17 years and 1 month to 40 years did

not raise a substantial question) with Commonwealth v. Sarvey, 199 A.3d

436, 444, 455-56 (Pa. Super. 2018) (vacating as excessive consecutive

sentences that resulted in an aggregate sentence of 101/2 to 24 years of

incarceration followed by five years of probation for a single non-violent

criminal episode) and Commonwealth v. Williams, 69 A.3d 735, 742-44

(Pa. Super. 2013) (vacating as excessive consecutive sentences for violations

of multiple probations that resulted in an aggregate sentence of 24 years and

9 See CP-51-CR-0009669-2015 Docket Entries at 5 (robbery, burglary, and conspiracy charges to which Appellant pled guilty were first-degree felonies); 18 Pa.C.S. § 1103(1) (maximum sentence for first-degree felony is 20 years’ imprisonment).

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2 months to 48 years and 4 months imposed and were also imposed

consecutively to a 7 to 20 year sentence).

Based on the foregoing, we agree with appellate counsel that the issue

raised by Appellant lacks any arguable merit. In addition, we have reviewed

the certified record and have discovered no additional non-frivolous issues.

Therefore, we grant appellate counsel’s petition to withdraw and affirm the

sentencing court’s judgment of sentence.

Judgments of sentence affirmed. Petitions to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/19

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