Com. v. Robinson, J.

• Court: Superior Court of Pennsylvania
• Decided: March 13, 2017
• Docket: Com. v. Robinson, J. No. 1216 MDA 2016
• Status: Unpublished

Opinion

J-S05030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JAMES JUMAH ROBINSON

Appellant No. 1216 MDA 2016

Appeal from the Judgment of Sentence March 3, 2016 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002523-2013

BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J. FILED MARCH 13, 2017

Appellant, James Jumah Robinson, appeals from the judgment of

sentence entered on March 3, 2016, in the Court of Common Pleas of Berks

County. Additionally, Robinson’s court-appointed counsel, Abby L. Rigdon,

Esquire, has filed a petition to withdraw as counsel pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm Robinson’s judgment of sentence and grant

counsel’s petition to withdraw.

This case returned to the trial court after an en banc panel of this

Court reversed Robinson’s conviction for receiving stolen property, vacated

his judgment of sentence, and remanded for resentencing on the remaining

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 Retired Senior Judge assigned to the Superior Court. J-S05030-17

firearms conviction, 18 Pa.C.S.A. § 6106(a)(1). See Commonwealth v.

Robinson, 128 A.3d 261 (Pa. Super. 2015) (en banc). On remand, the trial

court resentenced Robinson to a period of imprisonment of 42 months to

seven years. Douglas J. Waltman, Esquire, filed a post-sentence motion on

Robinson’s behalf and in that motion sought to withdraw as counsel. The

trial court granted the motion to withdraw as counsel and appointed

Attorney Rigdon. The trial court later denied the post-sentence motion. And

this timely appeal followed.

Attorney Rigdon has complied with the mandated procedure for

withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating

Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594

(Pa. Super. 2010) (providing that counsel must inform client by letter of

rights to proceed once counsel moves to withdraw and append a copy of the

letter to the petition). Robinson has filed two letters in this Court in response

to counsel’s petition to withdraw.

Counsel has identified two issues in the Anders brief that Robinson

believes entitle him to relief: a challenge to the discretionary aspects of

sentencing and trial counsel’s ineffective assistance. We begin with the

latter.

Robinson’s letters to this Court detail his theories on trial counsel’s

ineffective assistance. See Letters, filed 11/21/16 and 12/5/16. This is

Robinson’s direct appeal. Apart from two limited exceptions not pertinent

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here, claims of ineffective assistance of counsel cannot be raised on direct

review. See Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).

Accordingly, Robinson cannot now raise allegations of trial counsel’s

ineffective assistance. The allegations must await collateral review.

The discretionary aspects of sentencing claim, as framed in the Rule

2119(f) statement, is that the sentence “is manifestly excessive and grossly

disproportionate to the crime charged….” Appellant’s Brief, at 5. “[I]ssues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.” Commonwealth v. Shugars, 895 A.2d

1270, 1273-1274 (Pa. Super. 2006) (citation omitted). The post-sentence

motion did not challenge the sentence on this basis. See Post-Sentence

Motion to Vacate Sentence, filed 3/3/16, at ¶¶ 1-2.

Ordinarily, we would find this sentencing claim waived. See Shugars.

And would have further noted that the claim would not even have raised a

substantial question for our review. See Commonwealth v. Lutes, 793

A.2d 949, 964 (Pa. Super. 2002) (“[A] bald allegation that a sentence is

excessive does not raise a substantial question.”) But in light of counsel’s

petition to withdraw, we must address Robinson’s contention. See

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating

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that where counsel files an Anders brief, this Court will review discretionary

aspects of sentencing claims that were otherwise not properly preserved).

Sentencing is vested in the discretion of the trial court, and will not be disturbed absent a manifest abuse of that discretion. An abuse of discretion involves a sentence which was manifestly unreasonable, or which resulted from partiality, prejudice, bias, or ill will. It is more than just an error in judgment.

Commonwealth v. Downing, 990 A.2d 788, 792-793 (Pa. Super. 2010)

(citation omitted).

The trial court imposed a sentence within the standard range of the

sentencing guidelines. The standard range sentence is presumptively

reasonable. See, e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa.

Super. 2006). As the sentence was within the standard range, to succeed on

this claim, Robinson has to show that “the case involves circumstances

where the application of the guidelines would be clearly unreasonable[.]” 42

Pa.C.S.A. § 9781(c)(2). That is simply not the case here. The sentence is in

no way excessive. Thus, Robinson’s challenge to the discretionary aspects of

his sentence fails.

After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

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Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/13/2017

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