Com. v. Robinson, A.

• Court: Superior Court of Pennsylvania
• Decided: March 22, 2024
• Docket: 3207 EDA 2022
• Status: Unpublished

Opinion

J-S47019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDREW D. ROBINSON : : Appellant : No. 3207 EDA 2022

Appeal from the Judgment of Sentence Entered November 2, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004674-2021

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

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 22, 2024

Andrew Robinson appeals from the judgment of sentence imposed after

the trial court found him guilty of third-degree murder and possessing an

instrument of crime (“PIC”).1 Robinson claims his sentence was unreasonable.

Additionally, Robinson’s counsel filed a petition to withdraw and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967). Upon review, we

grant counsel’s petition, and affirm the judgment of sentence.

On October 29, 2020, Robinson and William McElhenny were outside the

front entrance of their shelter in Philadelphia and got into an argument. A

fight ensued. Robinson pulled out a knife and stabbed Mr. McElhenny

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(c) and 907(a). J-S47019-23

numerous times, killing him. Neighborhood surveillance videos showed that

McElhenny was unarmed. Robinson was arrested and charged.

Following a bench trial, the court found Robinson guilty of murder of the

third degree and PIC. On November 2, 2022, the trial court sentenced

Robinson to 15 to 40 years’ incarceration for the murder conviction and 1 to

2 years’ incarceration, concurrent, for PIC. Robinson filed a post-sentence

motion, which the court denied.

Robinson filed this timely appeal. Counsel filed a petition to withdraw

from representation and an Anders brief with this Court. Robinson did not

retain independent counsel or file a pro se response to the Anders brief.

Before we may consider the issues raised in the Anders brief, we must

first consider counsel’s petition to withdraw from representation. See

Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding

that, when presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw). Pursuant to Anders, when counsel believes an appeal is frivolous

and wishes to withdraw from representation, counsel must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points [the defendant] deems worthy of this Court's attention.

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Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

(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. Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues that counsel, intentionally or not, missed or misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

Here, counsel filed both an Anders brief and a petition for leave to

withdraw as counsel. The Anders brief substantially comports with the

requirements set forth by our Supreme Court in Santiago. The record

includes a copy of the letter that counsel sent to Robinson stating counsel’s

intention to seek permission to withdraw and advising Robinson of his right to

proceed pro se or retain new counsel and file additional claims. Because

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counsel has complied with the procedural requirements for withdrawing from

representation, we will conduct an independent review to determine whether

Robinson’s appeal is wholly frivolous.

In the Anders brief, counsel indicates that Robinson wants to challenge

the discretionary aspects of his sentence. “Challenges to the discretionary

aspects of sentencing do not entitle an appellant to review as of right.”

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). This Court

has explained that, to reach the merits of a discretionary sentencing issue, we

must conduct a four-part analysis to determine:

(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]pellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.... [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).

Robinson has satisfied the first and third requirements under Colon. Because

Robinson raises several issues in his Rule 2119(f) statement, we must

consider whether he satisfied the third and fourth requirements for each issue.

In his Rule 2119(f) statement, Robinson claims that the trial court

either: 1) sentenced him outside the guidelines and his sentence is

unreasonable; or 2) sentenced within the guidelines but his case involves

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circumstances where the application of those guidelines would be clearly

unreasonable given his mental health.2 Anders Brief at 20-21.

Upon review of the record, we observe that Robinson preserved his

sentencing claims. This Court has held “[a] claim that the sentencing court

imposed an unreasonable sentence by sentencing outside the guidelines

presents a ‘substantial question’ for our review.” Commonwealth v. Eby,

784 A.2d 204, 206 (Pa. Super. 2001). We also have held that “an excessive

sentence claim – in conjunction with an assertion that the court failed to

consider mitigating factors—raises a substantial question.” Commonwealth

v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc). Therefore, we

will consider Robinson’s sentencing claims.

Our standard of review of a sentencing claim 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, 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.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

Robinson claims that the trial court sentenced him outside the

sentencing guidelines. Alternatively, he claims that if his 15 to 40-year

sentence was within the guidelines, it was clearly unreasonable considering ____________________________________________

2 We interpret Robinson’s second claim as the court imposed an excessive sentence and failed to consider mitigating factors.

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his mental health issues. As such, Robinson maintains that the trial court

abused its discretion when it sentenced him. See Anders Brief at 20-21.

Our review of the record shows that, contrary to Robinson’s claim, the

trial court did not sentence Robinson outside the sentencing guidelines. The

court noted that Robinson’s prior record score was a 3 and the offense gravity

score for murder of the third-degree was 14. The court further noted that the

sentencing guidelines, with the deadly weapon/used enhancement of 18

months, recommended a standard range, minimum sentence of 138 months

to the statutory limit of 240 months.3 N.T., 11/2/22, at 2. The trial court

sentenced Robinson to 180 months to 40 years’ incarceration. This minimum

sentence was well within the standard range. “[W]here a sentence is within

the standard range of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code.” See Commonwealth v. Hill, 210

A.3d 1104, 1117 (Pa. Super. 2019).

The record also shows that the trial court considered Robinson’s mental

health, as well as other mitigating factors, when it sentenced him. The court

had a pre-sentence investigation report (“PSI”), which defense counsel noted

was very detailed. It is well settled that where a sentencing court is informed

by a PSI, “it is presumed that the court is aware of all appropriate sentencing ____________________________________________

3 “For the purposes of the guidelines, the statutory limit is the longest legal

minimum sentence, which is one-half the maximum allowed by law.” 204 Pa. Code 303.9(g). Here, the maximum sentence that could have been imposed was 40 years, making the longest minimum sentence 20 years.

.

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factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.” Commonwealth v. Ventura, 975

A.2d 1128, 1135 (Pa. Super. 2009). The court also had a detailed mental

health evaluation of Robinson. N.T., 11/2/22, at 7. The court indicated it

reviewed both reports. Id. at 28.

Additionally, Robinson’s counsel gave the court an overview of

Robinson’s difficult background, highlighting various mitigating factors and his

rehabilitative needs. These included Robinson’s parents’ drug addiction, which

started before his birth and continued into his childhood resulting in their

neglect and inability to care for him. The impact this had on Robinson was

significant and was compounded, subsequently, by the abuse he suffered

while he was in foster care. Counsel emphasized that Robinson also suffered

from various mental health issues which, in part, resulted from the

circumstances of his childhood. Robinson’s counsel argued that these

circumstances significantly affected Robinson throughout his life, including at

the time of this incident. Id. at 5-13. The court heard from Robinson’s mother

and a family friend. Robinson himself addressed the court. Id. at 14-18, 25-

28.

The Commonwealth acknowledged the mitigating circumstances of this

case and asked the court to impose a sentence of only 17 years’ incarceration,

rather than the statutory limit of 20 years. Id. at 24-25.

At the conclusion of the hearing, the trial court stated, “I’ve reviewed

everything.” Id. 28. The court commented about the severity of the incident

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and that Robinson was fortunate to have been convicted of third-degree

murder rather than first-degree, which a jury likely would have found. Despite

this, the court imposed a minimum sentence of 15 years, which was less than

the minimum sentence requested by the Commonwealth. Thus, the court

sincerely considered Robinson’s mental health and background. The court’s

sentence further considered Robinson’s rehabilitative needs and required

Robinson to get his GED, vocational training, anger management counseling,

and a dual diagnosis examination and treatment. Id. at 29.

Based upon our review of the sentencing transcript, it is evident that

the trial court considered the mitigating factors in this case, including

Robinson’s background, mental health, and rehabilitative needs. On appeal,

[w]e cannot re-weigh the sentencing factors and impose our judgment in place

of the sentencing court.” Commonwealth v. Macias, 968 A.2d 773, 778

(Pa. Super. 2009). Thus, we conclude that the trial court did not abuse its

discretion when it sentenced Robinson.

For the foregoing reasons, we conclude that Robinson’s claim that his

sentence was unreasonable is frivolous. Further, in accordance with

Dempster, we have independently reviewed the certified record to determine

if there are any non-frivolous issues that counsel may have overlooked.

Having found none, we agree that the appeal is wholly frivolous. Therefore,

we grant counsel’s petition to withdraw and affirm the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

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Date: 3/22/2024

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