Com. v. Raiber, A.

Opinion

J-S51034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ALBERT VICTOR RAIBER, : : Appellant : No. 140 MDA 2014

Appeal from the Judgment of Sentence entered on December 18, 2013 in the Court of Common Pleas of Franklin County, Criminal Division, No. CP-28-CR-0001524-2012

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 04, 2014

the judgment of sentence

imposed after a jury convicted him of involuntary deviate sexual intercourse

assault, and false imprisonment.1 Additionally, -appointed

counsel, , has filed a Petition to

Withdraw as counsel and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738, 744 (1967).

of sentence.

On several occasions in December 2011, Raiber sexually assaulted his

1 See 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 3127(a), 6301(a)(1)(ii), 2701(a)(1), 2903(a). J-S51034-14

police arrested Raiber, and subsequently charged him with the above-

mentioned offenses on January 12, 2012.

A preliminary hearing was scheduled for January 17, 2012. The

Commonwealth requested the

grant a continuance of the preliminary hearing. The Commonwealth

asserted that it needed additional time to prepare and file several Motions,

-of-court statements about

to the Tender Years Hearsay Act.2 The Commonwealth filed its Tender Years

Motion on May 22, 2012, which the trial court granted after conducting a

hearing on July 23, 2012. Subsequently, the preliminary hearing was held

on August 14, 2012, approximately seven months after the Commonwealth

charged Raiber.3

At a pre-trial conference held on October 29, 2012, the

Commonwealth requested that the trial court schedule a date for trial prior

to January 12, 2013 (i.e., one year after Raiber was charged), in order to

defense counsel informed the trial court that he would not be prepared to try

the case prior to January 2013. Accordingly, the trial court scheduled a jury

trial for January 16-17, 2013.

2 See 42 Pa.C.S.A. § 5985.1. 3 As discussed below, Raiber never challenged his prolonged detention pending his preliminary hearing.

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would occur more than 365 days after the charges were filed.4 After

conducting a hearing on the Rule 600 Motion, the trial court determined that

the time between October 29, 2012 (the pre-trial conference date), and

January 14, 2013, would not be counted against the Commonwealth for

purposes of calculating the Rule

Motion. At the conclusion of trial, the jury found Raiber guilty of the above-

mentioned offenses.

On July 29, 2013, the trial court sentenced Raiber to serve an

aggregate prison term of 29 years and 3 months to 72 years. The trial court

imposed the statutory mandatory sentence of 25 years in prison5

also

imposed a mandatory 25-

concurrently with the sentence imposed on Count I. Raiber challenged his

sentence in a timely Post-Sentence Motion, arguing that the trial court erred

4 the Commonwealth failed to exercise due diligence in prosecuting the case in a timely manner, emphasizing the

5 The trial court applied the mandatory sentencing provision at 42 Pa.C.S.A. § 9718.2(a)(1) because Raiber had previously been convicted of a sexual assault offense in Maryland.

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in applying the 25-year mandatory sentences under section 9718.2(a)(1) by

using his prior Maryland conviction

argument, granted his Post-Sentence Motion, and scheduled the matter for

resentencing.

On December 18, 2013, the trial court resentenced Raiber to an

aggregate sentence of 16½ to 46½ years in prison. Notably to this appeal,

the trial court ordered the separate sentences imposed on Counts I and III

to run consecutively, whereas it had previously ordered the sentences

imposed on those Counts to run concurrently.

Raiber timely filed a Notice of Appeal. In response, the trial court

ordered Raiber to file a Pa.R.A.P. 1925(b) concise statement of errors

complained

Concise Statement.

Subsequently, Attorney Toms filed with this Court an Anders Brief and

Raiber wished to raise on appeal were frivolous and there are no other

meritorious issues to present on appeal. Raiber did not file a response to

Attorney Petition to Withdraw and Anders Brief, nor did he retain

alternate counsel for this appeal.

Before addressing the issues Raiber presents on appeal, we must

determine whether Attorney Toms has complied with the dictates of Anders

and its progeny in petitioning to withdraw from representation. Pursuant to

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

withdraw from representation, he must do the following:

(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

attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

Additionally, the Pennsylvania Supreme Court has explained 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 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

counsel has satisfied the Anders requirement

Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006)

(citation and brackets omitted).

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Our review of Attorney Anders Brief and Petition to Withdraw

reveals that he has complied with the requirements of Anders/Santiago.

Additionally, Attorney Toms has properly (1) provided Raiber with a copy of

both the Anders Brief and Petition to Withdraw; and (2) appended to the

Petition to Withdraw a copy of the letter that he sent to Raiber advising him

of his right to retain new counsel, proceed pro se, or raise any additional

tention. Accordingly, we next

examine the record to make an independent determination of whether

In the Anders Brief, Attorney Toms explains that Raiber wishes to

raise three separate allegations of trial court error. We will address each

issue in turn below.

600 [] Motion[,] since the allotted 365 days to bring a case to trial expired

several days prior to the dates on which the trial was

Anders Brief at 10.

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the applicable

challenge, and correctly determined that there was no Rule 600 violation.

See Trial Court Opinion, 3/7/14, at 4-9. With regard to this issue, we affirm

See id.

In his second issue, Raiber contends that

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[t]he Commonwealth could not continue to prosecute [Raiber] when it did not hold [his] preliminary hearing in a timely manner[,] and the delay in holding the preliminary hearing was due to the time taken by the Commonwealth to file and hear its Tender Years Motion, a Motion for Closed Circuit Testimony, and a Motion to Admit Other Acts Evidence.

detail the relevant background and the applicable law. See Trial Court

Opinion, 3/7/14, at 9-13. In sum, the trial court stated that although the

preliminary hearing, the trial court found that the Commonwealth had

waiting over four months to file the Tender Years Motion. Id. at 11.

delay, constituted (1) an unlawful depriv

violation of the Pennsylvania Rule of Criminal Procedure permitting a MDJ to

grant a continuance of a preliminary hearing for good cause, Pa.R.Crim.P.

542(G)(1). See Trial Court Opinion, 3/7/14, at 10-13. Nevertheless, the

Id. at 12-13 (explaining the

inter alia, Commonwealth v. Zook, 615

A.2d 1, 5 (Pa. 1992) (h

for a violation of Rule [542(G)(1)] is to be released from custody until the

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analysis and legal conclusion are supported by the law and the record, and

See Trial

Court Opinion, 3/7/14, at 9-13.

Finally, Raiber argues that

[t]he Trial Court abused its discretion when it ran the Count III [indecent assault] sentence consecutive to the Count I [IDSI] sentence on re-sentencing[,] after having originally run those two sentences concurrently. [T]he [Trial] Court cannot change its sentencing scheme from concurrent to consecutive when the originally challenged sentences were vacated and the Court re- sentenced [Raiber].

of sentencing challenge and the applicable law in rejecting this claim. See

Trial Court Opinion, 3/7/14, at 13-16.6 We discern no abuse of discretion by

the trial court in sentencing Raiber; therefore, we affirm based on the trial

review discloses no non-frivolous issues that he could present on appeal.

6 Although Attorney Toms failed to include in his Anders Brief a concise statement of the reasons relied upon for allowance of appeal, in violation of Pa.R.A.P. 2119(f), we will overlook this defect. See Commonwealth v. Roser failure to include the Rule 2119(f) statement results in waiver of his or her discretionary sentencing challenge only where the Commonwealth lodges an objection to the omission of the statement).

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Accordingly, we grant Attorney Toms permission to withdraw under the

precepts of Anders, and affirm the judgment of sentence.

Petition to Withdraw as counsel granted; judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/4/2014

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