Com. v. Peebles, K.

• Court: Superior Court of Pennsylvania
• Decided: August 4, 2017
• Docket: Com. v. Peebles, K. No. 72 MDA 2017
• Status: Unpublished

Opinion

J-S41043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KEVIN PAUL PEEBLES : : Appellant : No. 72 MDA 2017

Appeal from the Judgment of Sentence December 8, 2016 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000878-2016

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 04, 2017

Appellant, Kevin Paul Peebles, appeals from the judgment of sentence

entered in the Berks County Court of Common Pleas, following his open

guilty plea to failure to comply with sex offender registration requirements.1

We affirm and grant counsel’s petition to withdraw.

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

Appellant is a tier III convicted sex offender who must comply with lifetime

reporting requirements under the Sexual Offender Registration and

Notification Act (“SORNA”). Appellant completed registration at the police

barracks in Berks County on October 26, 2015, but failed to disclose that he

had a Facebook social media account, in direct violation of the registration ____________________________________________

1 18 Pa.C.S.A. § 4915.1(a)(3).

_____________________________

*Retired Senior Judge assigned to the Superior Court. J-S41043-17

requirements. As a result, Appellant entered an open guilty plea on

December 8, 2016, to failure to comply with registration requirements. 2

With the benefit of a pre-sentence investigative (“PSI”) report, the court

sentenced Appellant to a term of four and a half (4½) to ten (10) years’

imprisonment. Appellant’s sentence was in the mitigated range.

Appellant filed a post-sentence motion nunc pro tunc on December 29, ____________________________________________

2 The U.S. Supreme Court recently declared that North Carolina’s statute, banning sex offenders from accessing social networking websites, violated the First Amendment of the federal constitution. See Packingham v. North Carolina, 137 S.Ct. 1730 (decided June 19, 2017) (declaring unconstitutional North Carolina statute that banned registered sex offenders from “access[ing] a commercial social networking Web site where the sex offender knows that the site permits children to become members or to create or maintain personal Web pages on the commercial social networking Web Site”). According to the Supreme Court, the statute at issue imposed an unprecedented burden on free speech that was overly broad; no State can enact such a complete bar to the exercise of First Amendment rights. Id. The Court did say, however, that a State could enact more specific laws, so long as the restrictions are limited in context and narrowly tailored. But, a State cannot enact what constitutes a complete bar to the exercise of First Amendment rights on “websites integral to the fabric of our modern society and culture.” Id. at 1738.

The Pennsylvania statute relevant to the present case makes it a crime for individuals subject to registration to fail to register as required, verify an address, and provide accurate information when registering. See 18 Pa.C.S.A. § 4915.1. Accurate demographic information for a registered sex offender contains, inter alia, a “[p]rimary or given name, including an alias used by the individual, nickname, pseudonym, ethnic or tribal name, regardless of the context used and any designations or monikers used for self-identification in Internet communications or postings.” 42 Pa.C.S.A. § 9799.16(b). Pennsylvania law does not foreclose a sex offender’s access to social media; the law provides for criminal punishment if, when registering, the sex offender fails to provide accurate/complete information regarding social networking accounts. See 42 Pa.C.S.A. § 4915.1. Thus, the Packingham decision does not impact the instant case.

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2016. On January 2, 2017, the court considered the motion to reinstate

post-sentence rights nunc pro tunc and denied the motion on the merits.

Appellant timely filed a notice of appeal on January 11, 2017. That same

date, the court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b). Appellant timely complied

on January 27, 2017. Appellate counsel filed on April 11, 2017, a petition to

withdraw representation with this Court.

As a preliminary matter, counsel seeks to withdraw 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) 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). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to

confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903

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A.2d 1244, 1246 (Pa.Super. 2006).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor McClendon[3] requires that counsel’s 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.

* * *

Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 359-60. Thus, the Court

held:

[I]n 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.

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

Instantly, appellate counsel filed a petition to withdraw. The petition ____________________________________________

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

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states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or to proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention. (See Letter to Appellant, dated April 11,

2017, attached to Petition to Withdraw as Counsel). In the Anders brief,

counsel provides a summary of the facts and procedural history of the case.

Counsel’s argument refers to relevant law that might arguably support

Appellant’s issue. Counsel further states the reasons for his conclusion that

the appeal is wholly frivolous. Therefore, counsel has substantially complied

with the requirements of Anders and Santiago.

Counsel raises the following issue on Appellant’s behalf:

WHETHER APPELLANT’S SENTENCE OF 54 MONTHS TO 10 YEARS IN A STATE CORRECTIONAL INSTITUTION WAS MANIFESTLY EXCESSIVE, CLEARLY UNREASONABLE, AND CONTRARY TO THE FUNDAMENTAL NORMS UNDERLYING THE SENTENCING CODE, WHERE THE COURT IMPOSED A SENTENCE THAT, ALTHOUGH IN THE MITIGATED RANGE OF THE SENTENCING GUIDELINES, FAILED TO FULLY ACCOUNT FOR APPELLANT’S REMORSE FOR THE CRIME AND THE NATURE OF THE CRIMINAL CONDUCT?

(Anders Brief at 8).

Appellant argues the court did not consider the requisite statutory

factors under 42 Pa.C.S.A. § 9721(b) when it imposed sentence.

Specifically, Appellant avers the court did not fully consider Appellant’s

expressions of remorse and lack of wrongful intent in failing to disclose his

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Facebook social media account. Next, Appellant asserts the court did not

fully consider on the record the protection of the public or the gravity of the

offense as it relates to the impact on the community. Appellant claims the

court did not consider whether Appellant’s conduct harmed the community,

Appellant’s rehabilitative needs, or how incarceration would prevent

Appellant from committing future criminal acts. As a result, Appellant

submits the court imposed an unreasonable and manifestly excessive

sentence, which constitutes too severe a punishment. Appellant points out

that the court noted the confusion inherent in the registration questions

under SORNA. Appellant argues that the General Assembly did not intend to

punish individuals like him for wrongful conduct based on confusion and

misapprehension of the law. Appellant contends application of the

sentencing guidelines is clearly unreasonable pursuant to Section 9781(c)(2)

under these circumstances. For these reasons, Appellant concludes his

sentence violated the sentencing code’s norms of fundamental fairness and

we should vacate and remand for resentencing. As presented, Appellant

challenges the discretionary aspects of his sentence.4 See Commonwealth

____________________________________________

4 “[W]hile a guilty plea which includes sentence negotiation ordinarily precludes a defendant from contesting the validity of his…sentence other than to argue that the sentence is illegal or that the sentencing court did not have jurisdiction, open plea agreements are an exception in which a defendant will not be precluded from appealing the discretionary aspects of the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one (Footnote Continued Next Page)

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v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is

manifestly excessive challenges discretionary aspects of sentencing);

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing

court failed to consider or did not adequately consider certain factors

implicates discretionary aspects of sentencing); Commonwealth v.

Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en banc) (explaining claim

sentencing court failed to consider Section 9721(b) factors pertains to

discretionary sentencing matters).

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

aspects of 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 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary _______________________ (Footnote Continued)

in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included no negotiated sentence.

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aspects of 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, 794 (Pa.Super.

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003). “This failure

cannot be cured by submitting the challenge in a Rule 1925(b) statement.”

Commonwealth v. McAfee, 849 A.2d 270, 275, (Pa.Super. 2004), appeal

denied, 580 Pa. 695, 860 A.2d 122 (2004).

When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

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);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

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

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,

112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),

cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).

The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the

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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.” Sierra, supra at 913. A claim that a sentence is

manifestly excessive might raise a substantial question if the appellant’s

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. Nevertheless, as a general rule, “[a]n allegation that a sentencing

court ‘failed to consider’ or ‘did not adequately consider’ certain factors does

not raise a substantial question that the sentence was inappropriate.” Cruz-

Centeno, supra at 545 (quoting Commonwealth v. Urrutia, 653 A.2d

706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873

(1995)). Moreover, where the sentencing court had the benefit of a PSI

report, the law presumes the court was aware of and weighed relevant

information regarding a defendant’s character along with mitigating

statutory factors. Tirado, supra at 366 n.6.

Instantly, Appellant raised the following issues in his post-sentence

motion nunc pro tunc:

4. [Appellant] asks this court to modify his sentence in this case as he believes that the sentence is overly harsh.

5. [Appellant] believes that the within requested relief should be granted for the following reasons:

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a) [Appellant] believes his failure to register a Facebook Social Media account to be a relatively minor infraction;

b) [Appellant] is truly remorseful and repentant for [his] acts of misbehavior;

c) [Appellant] does not expect to have any further contact with the criminal justice system; and

d) [Appellant] wishes to consummate a meaningful and accelerated reintegration into society at large.

(Appellant’s Post-Sentence Motion Nunc Pro Tunc, filed December 29, 2016,

at 1-2). Significantly, Appellant failed to preserve in his post-sentence

motion nunc pro tunc his claims that the court failed to give adequate

consideration to the protection of the public, the gravity of Appellant’s

offense as it relates to the impact on the community, whether Appellant’s

conduct harmed the community, Appellant’s rehabilitative needs, and how

incarceration would prevent Appellant from committing future criminal

conduct. Thus, these claims are waived. See Mann, supra. Appellant’s

inclusion of these issues in his Rule 1925(b) statement does not cure this

defect. See McAfee, supra. Appellant also failed to preserve his claim that

application of the sentencing guidelines is clearly unreasonable pursuant to

Section 9781(c)(2). See Mann, supra.

Regarding Appellant’s claim that the court did not fully consider

Appellant’s expressions of remorse and lack of wrongful intent in failing to

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disclose his Facebook social media account, Appellant properly preserved his

discretionary aspects of sentencing claim in his post-sentence motion nunc

pro tunc, but not in his Rule 2119(f) statement. Additionally, Appellant’s

assertion that the court did not fully consider these mitigating factors does

not present a substantial question under the facts of this case. See Cruz-

Centeno, supra. Moreover, the court had the benefit of a PSI report. (See

N.T. Guilty Plea/Sentencing, 12/8/16, at 35). Therefore, we can presume

the court considered the relevant information and mitigating factors. See

Tirado, supra. Finally, the record belies Appellant’s contentions. In

analyzing Appellant’s challenge to its sentencing discretion, the court

reasoned:

[At the sentencing hearing,] the Commonwealth put on the record the standard range sentence for the offense:

Your honor, [Appellant] has a prior record score of 5, which is indicated in the [PSI] report. The offense gravity score for this offense is a 10, which would make the standard range 60 to 72 months plus or minus 12 months. [(N.T. Guilty Plea/Sentencing, 12/8/16, at 32).]

Appellant’s attorney…argued the mitigating circumstances of the offense. Primarily, that Appellant took responsibility for his actions and the circumstances of his failure to register was a failure to register a Facebook account. Additionally, Appellant gave further statements admitting his culpability.

In conjunction with statements, [the court] stated that:

I have reviewed the PSI and I’ve taken that into account[.]

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I’ve also taken into account the proceeding[s] here today and [Appellant’s] statements and what I believe to be [Appellant’s] understandings of the proceedings and I’ve taken into account the provisions of the sentencing guidelines, the information that’s been provided in conjunction with the entry of this plea, which is the written and oral colloquies, and [Appellant’s allocution. … Id. at 33- 34.]

The court, having considered these parameters, deemed it appropriate to sentence Appellant to a period of incarceration within the mitigated range.

(Trial Court Opinion, filed February 16, 2017, at 2-3) (some internal citations

omitted). The record shows the court adequately considered Appellant’s

display of remorse and the nature of Appellant’s criminal conduct when the

court imposed sentence. Following our independent review of the record, we

agree the appeal is wholly frivolous. See Palm, supra. Accordingly, we

affirm and grant counsel’s petition to withdraw.

Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/4/2017

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