Com. v. Prokop, J.

• Court: Superior Court of Pennsylvania
• Decided: May 22, 2023
• Docket: 1129 MDA 2022
• Status: Unpublished

Opinion

J-S06027-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY LEE PROKOP : : Appellant : No. 1129 MDA 2022

Appeal from the Judgment of Sentence Entered June 23, 2022 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000486-2022

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED: MAY 22, 2023

Appellant Jeffrey Lee Prokop appeals from the judgment of sentence

imposed after he pled guilty to one count of criminal trespass. Appellant’s

counsel (Counsel) has filed a petition to withdraw and an Anders/Santiago

brief.1 After review, we grant Counsel’s petition to withdraw and affirm the

judgment of sentence.

The underlying facts and procedural history of this case are well known

to the parties. See Trial Ct. Op., 10/3/22, at 1-2 (unnumbered). Briefly, on

March 15, 2022, Appellant was arrested for breaking into a locked garage that

was attached to a residence, and the Commonwealth charged Appellant with

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* Former Justice specially assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S06027-23

one count each of burglary, criminal trespass, and possessing instruments of

crime (PIC).2 On April 11, 2022, the trial court granted the Commonwealth’s

motion to amend the grading of criminal trespass from a second-degree to a

third-degree felony. That same day, Appellant entered a negotiated guilty

plea to criminal trespass. Appellant and the Commonwealth agreed to a

recommended sentence with a minimum term of twelve months of

incarceration, which was at the bottom end of the standard range of the

Sentencing Guidelines. However, there was no agreement concerning

whether Appellant would serve his sentence in a state correctional institution

or county prison. On June 23, 2022, the trial court sentenced Appellant to a

period of twelve to thirty-six months’ incarceration in a state correctional

institution. Appellant filed a timely post-sentence motion for reconsideration

of sentence, arguing that his sentence was overly harsh. Post-Sentence Mot.,

7/5/22, at 1-3. The trial court denied the motion on July 20, 2022, and

Appellant filed a timely notice of appeal. Counsel filed a Pa.R.A.P. 1925(c)(4)

statement of intent to file a petition to withdraw. The trial court issued a Rule

1925(a) opinion addressing Appellant’s challenge to the discretionary aspects

of his sentence and concluding that it was meritless. Trial Ct. Op. at 3-4

(unnumbered).

Initially, Counsel filed an Anders/Santiago brief on November 30,

2022, but Counsel did not state his reasons for concluding that the appeal was

2 18 Pa.C.S. §§ 3502(a)(2), 3503(a)(1)(ii), and 907(a), respectively.

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frivolous and include specific citations to the record. Further, Counsel did not

file a petition to withdraw. Additionally, Counsel did not attach a copy of the

letter advising Appellant of his rights pursuant to Commonwealth v.

Millisock, 873 A.2d 748 (Pa. Super. 2005), and notifying Appellant of his right

to proceed pro se or proceed with a private attorney. Accordingly, this Court

entered an order on December 15, 2022, striking the November 30, 2022

brief, and directing Counsel to file a new brief that is compliant with

Anders/Santiago or an advocate’s brief. Order, 12/15/22.

On December 15, 2022, Counsel filed an amended petition to withdraw

and an amended Anders/Santiago brief, but again Counsel failed to meet

the technical requirements of Anders and Santiago. On December 20, 2022,

this Court entered an order denying Counsel’s petition to withdraw without

prejudice to refile with this Court a petition to withdraw and a new brief that

is compliant with Anders/Santiago or an advocate’s brief on or before

January 6, 2023. Order, 12/20/22. On January 7, 2023, one day after the

January 6, 2023 deadline, Counsel filed an amended Anders/Santiago brief

and an amended petition to withdraw. Resp. to Order, 1/7/23. Further, the

record reflects that Appellant did not file a response either pro se or through

private counsel. Although we disapprove of Counsel’s late filing, we will

nevertheless proceed to review the Anders/Santiago brief and petition to

withdraw. See, e.g., Commonwealth v. Williams, 929 MDA 2020, 2021

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WL 3163060, at *3 (Pa. Super. filed July 27, 2021) (unpublished mem.)

(addressing the merits of a late-filed Anders brief and petition to withdraw).3

“When faced with a purported Anders[/Santiago] brief, this Court may

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

counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008) (citation omitted). Counsel must comply with the

technical requirements for petitioning to withdraw by (1) filing a petition for

leave to withdraw stating that after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous; (2)

providing a copy of the brief to the appellant; and (3) advising the appellant

that he has the right to retain private counsel, proceed pro se, or raise

additional arguments that the appellant considers worthy of the court’s

attention. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).

Additionally, counsel must file a brief that meets the requirements

established in Santiago, namely:

(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

3See Pa.R.A.P. 126(b) (providing that unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).

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case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

“Once 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, in fact, wholly

frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc).

Here, Counsel has complied with the procedural requirements for

seeking withdrawal by filing a petition to withdraw, sending Appellant a letter

notifying Appellant of his intent to withdraw, explaining his appellate rights,

and informing Appellant of his right to proceed pro se or with private counsel,

and supplying Appellant with a copy of the Anders/Santiago brief. See

Goodwin, 928 A.2d at 290. Counsel also provided this Court with a copy of

his letter to Appellant informing him of his rights. Moreover, Counsel’s

Anders/Santiago brief complies with the requirements of Santiago.

Counsel includes a summary of the relevant factual and procedural history,

refers to the portions of the record that could arguably support Appellant’s

claim, and sets forth the conclusion that the appeal is frivolous. See

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Santiago, 978 A.2d at 361. Accordingly, we conclude that Counsel has met

the technical requirements of Anders and Santiago, and we will proceed to

address the issue presented in Counsel’s Anders/Santiago brief.

In the Anders/Santiago brief, Counsel identifies one issue and asserts

that the trial court abused its discretion in sentencing Appellant.

Anders/Santiago Brief at 7. Appellant contends that the trial court’s

sentence was unduly harsh and unreasonable considering Appellant’s

rehabilitative needs and the nature of his offense. Id. at 14. Specifically,

Appellant wanted to serve his sentence in a county facility rather than a state

correctional institution and asserts that the trial court abused its discretion by

imposing a state prison sentence, and that due to “his age and his caretaking

responsibilities for his aging mother” a county sentence would be more

appropriate. Id. at 15-16.

“A challenge to an alleged excessive sentence is a challenge to the

discretionary aspects of a sentence.” Commonwealth v. Ahmad, 961 A.2d

884, 886 (Pa. Super. 2008) (citation omitted). It is well settled that a

defendant “who pleads guilty and receives a negotiated sentence may not then

seek discretionary review of that sentence.” Commonwealth v. O’Malley,

957 A.2d 1265, 1267 (Pa. Super. 2008) (citation omitted). However, where

the parties did not agree to certain aspects of the sentence in a negotiated

guilty plea and left those matters to the trial court’s discretion, the defendant

may challenge those non-negotiated discretionary aspects of his sentence on

appeal. See Commonwealth v. Brown, 982 A.2d 1017, 1018-20 (Pa.

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Super. 2009) (concluding that where the negotiated guilty plea called for a

minimum sentence at the bottom end of the standard range of his sentencing

guidelines without an agreement concerning the maximum term, the

defendant did not waive his right to seek an appeal challenging the

discretionary aspects of his sentence regarding the maximum term and the

location of his incarceration).

Instantly, Appellant entered a negotiated guilty plea in exchange for a

sentencing recommendation that the trial court impose a sentence with a

minimum term at the bottom end of the standard range of the Sentencing

Guidelines. See Guilty Plea Colloquy, 4/11/22, at 1; Order, 4/14/22. Further,

the trial court sentenced Appellant to a sentence at “the bottom end of the

standard range.” See N.T. Sentencing Hr’g, 6/23/22, at 8. However,

Appellant’s plea agreement did not specify whether Appellant would serve his

sentence in either county or state prison. See Guilty Plea Colloquy at 1.

Therefore, we conclude that Appellant did not waive his right to challenge

discretionary aspects of his sentence related to his incarceration in a state

prison when he pleaded guilty. See Brown, 982 A.2d at 1018-20.

It is well settled that

challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

We 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

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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. § 9781(b).

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some

citations omitted and formatting altered). “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.” Id. (citation omitted).

Here, Appellant preserved his sentencing claims in a post-sentence

motion, filed a timely appeal, and Counsel has included a Pa.R.A.P. 2119(f)

statement in the Anders/Santiago brief. See Anders/Santiago Brief at 10.

Further, we conclude that Appellant has presented a substantial question for

review. See, e.g., Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super.

2006) (concluding that the defendant’s claim that “the trial court abused its

discretion by ordering [the defendant] to serve his sentence in a state

correctional institution rather than in a county facility[,]” raises a substantial

question for our review). Accordingly, we will address the merits of Appellant’s

claim.

Our well-settled standard of review for a challenge to the discretionary

aspects of sentencing is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather,

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the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Additionally, our review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. §[] 9781(c) and (d). Subsection 9781(c) provides:

The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some

citations omitted and some formatting altered). “When imposing a sentence,

the sentencing court must consider the factors set out in 42 Pa.C.S. § 9721(b),

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[including] the protection of the public, [the] gravity of offense in relation to

impact on victim and community, and [the] rehabilitative needs of the

defendant.” Fullin, 892 A.2d at 847 (citation omitted and formatting altered).

Additionally, the trial court “must consider the sentencing guidelines.” Id. at

848 (citation omitted). Further, “[w]here the sentencing judge had the benefit

of a pre-sentence [investigation] report [(PSI report)], it will be presumed

that he was aware of relevant information regarding [the defendant’s]

character and weighed those considerations along with the mitigating

statutory factors.” Id. at 849-50 (citation omitted).

Here, the trial court addressed Appellant’s claim as follows:

As the court indicated on the record at the time of sentencing, the [PSI] report showed a lengthy criminal history consisting of similar offenses: burglaries, theft, and forgeries — all crimes of deception. Additionally, this court took into consideration the Appellant’s need for services while incarcerated, and based its decision to impose a state sentence rather than a county sentence on the fact that the county prison has not yet restored services that were suspended due to the [COVID-19] pandemic. Thus, Appellant is far more likely to receive the treatment and services he needs in a state correctional facility than the county prison. Additionally, the court noted its belief that a state sentence is more appropriate given the Appellant’s prior history and pattern of criminal behavior.

Trial Ct. Op. at 3 (unnumbered) (some formatting altered).

Following our review of the record, we discern no abuse of discretion in

the trial court’s conclusion. See Raven, 97 A.3d at 1253. The record reflects

that the trial court considered the PSI report. See N.T. Sentencing Hr’g at 2;

Trial Ct. Op. at 3 (unnumbered). Therefore, we presume that the trial court

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was aware of Appellant’s rehabilitative needs, and that the trial court weighed

those considerations along with other mitigating factors. Fullin, 892 A.2d at

849-50. Indeed, the trial court extensively discussed Appellant’s rehabilitative

needs. The record reveals that the trial court specifically noted that Appellant

required rehabilitative services and concluded that Appellant would “get better

services if he’s in a state facility” in part because services that were suspended

due to the COVID-19 pandemic at the county level have not been restored.

See N.T. Sentencing Hr’g at 3-6. On this record, we discern no abuse of

discretion in the trial court sentencing Appellant to incarceration in a state

correctional institution as opposed to a county facility. See Raven, 97 A.3d

at 1253.

After review, we agree with Counsel’s assessment that the

discretionary-aspects-of-sentencing claim presented in the Anders/Santiago

brief is frivolous. Further, our independent review of the record does not

reveal any additional, non-frivolous issues. See Goodwin, 928 A.2d at 291;

Flowers, 113 A.3d at 1250. For these reasons, we grant Counsel’s petition

to withdraw and affirm the judgment of sentence.

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Counsel’s petition to withdraw granted. Judgment of sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/22/2023

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