J-S05008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
DAVID ANTHONY SANTIA JR. :
:
Appellant : No. 972 WDA 2022
Appeal from the Judgment of Sentence Entered March 7, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002926-2021,
CP-25-CR-0003000-2021, CP-25-CR-0003094-2021, CP-25-CR-0003095-2021, CP-25-CR-0003096-2021, CP-25-CR-0003195-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
DAVID A. SANTIA, JR. :
:
Appellant : No. 536 WDA 2023
Appeal from the Order Entered March 7, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003000-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
DAVID SANTIA, JR. :
:
Appellant : No. 537 WDA 2023
J-S05008-23
Appeal from the Order Entered March 7, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003094-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
DAVID A. SANTIA, JR. :
:
Appellant : No. 538 WDA 2023
Appeal from the Order Entered March 7, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003095-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
DAVID A. SANTIA, JR. :
:
Appellant : No. 539 WDA 2023
Appeal from the Order Entered March 7, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003096-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
DAVID A. SANTIA, JR. :
:
Appellant : No. 540 WDA 2023
3
J-S05008-23
Appeal from the Order Entered March 7, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003195-2021
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 22, 2023
Appellant, David Anthony Santia, Jr., appeals nunc pro tunc from the
judgment of sentence of an aggregate term of 31 to 62 months’ incarceration,
imposed after he pled guilty, in six separate cases, to theft by deception, 18
Pa.C.S. § 3922(a)(1), forgery, 18 Pa.C.S. § 4101(a)(1), deceptive or
fraudulent business practices, 18 Pa.C.S. § 4107(a)(2), and identity theft, 18
Pa.C.S. § 4120(a). On appeal, Appellant seeks to challenge the discretionary
aspects of his sentence. Additionally, his counsel, Tina M. Fryling, Esq., has
petitioned to withdraw her representation of Appellant pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.
At this juncture, we need not set forth the facts of Appellant’s underlying
convictions. We only note that he pled guilty to the above-stated offenses
and was sentenced to the aggregate term set forth supra on March 7, 2022.
He did not file any post-sentence motions or a direct appeal. On May 25,
2022, Appellant filed a pro se petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the reinstatement of his direct
appeal rights nunc pro tunc. On August 9, 2022, the court issued an order
4
J-S05008-23
granting that petition and stating that Appellant could file notices of appeal,
nunc pro tunc, from his judgment of sentence. The order did not reinstate
Appellant’s right to file post-sentence motions.
On August 22, 2022, Appellant timely filed a single notice of appeal
listing all six docket numbers of his underlying cases, in violation of
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that the filing
of a single notice of appeal from an order involving more than one docket will
no longer be tolerated; such practice violates Pa.R.A.P. 341, which requires
the filing of separate appeals from an order that resolves issues arising on
more than one docket; and the failure to file separate appeals generally
requires the appellate court to quash). However, in Commonwealth v.
Young, 265 A.3d 462 (Pa. 2021), our Supreme Court expressly overruled the
pronouncement in Walker that the failure to file separate notices of appeal in
connection with issues arising at more than one docket necessarily requires
this Court to quash the appeal. The Young Court held that “where a timely
appeal is erroneously filed at only one docket, [Pa.R.A.P.] 902 permits the
appellate court, in its discretion, to allow correction of the error, where
appropriate.” Id. at 477.
Here, Appellant filed a timely notice of appeal.1 Accordingly, although
he failed to comply with Walker, we did not quash his appeal but, instead,
____________________________________________
1 Appellant also timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The court filed its Rule 1925(a) opinion on October 6, 2022.
5
J-S05008-23
we remanded for Appellant to file separate notices of appeal at each of the
docket numbers for his six underlying cases within fourteen days. Appellant
timely complied with our directive, and we have consolidated his six, separate
appeals herein.
Appellant seeks to raise the following sentencing claim for our review:
“Was the sentence in this case manifestly excessive and clearly unreasonable,
particularly in [the imposition of] consecutive[ terms], and not individualized
as required by law?” Appellant’s Brief at 3.
Attorney Fryling concludes that this issue is frivolous, and that Appellant
has no other, non-frivolous claims he could pursue herein. Accordingly,
this Court must first pass upon counsel’s petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The 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’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. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: “(1) retain new counsel to
6
J-S05008-23
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] 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) (en banc).
In this case, Attorney Fryling’s Anders brief complies with the above-
stated requirements. Namely, she includes a summary of the relevant factual
and procedural history, she refers to portions of the record that could arguably
support Appellant’s claims, and she sets forth her conclusion that Appellant’s
appeal is frivolous. She also explains her reasons for reaching that
determination, and supports her rationale with citations to the record and
pertinent legal authority. Attorney Fryling also states in her petition to
withdraw that she has supplied Appellant with a copy of her Anders brief.
Additionally, she attached a letter directed to Appellant to her petition to
withdraw, in which she informed Appellant of the rights enumerated in
Nischan. Accordingly, counsel has complied with the technical requirements
for withdrawal. We will now independently review the record to determine if
Appellant’s issue is frivolous, and to ascertain if there are any other, non-
frivolous issues he could pursue on appeal.
7
J-S05008-23
In assessing Appellant’s sentencing claim, we have reviewed the
certified record, the briefs of the parties, and the applicable law. Additionally,
we have examined the well-reasoned opinion of the Honorable Daniel J.
Brabender, Jr., of the Court of Common Pleas of Erie County. We conclude
that Judge Brabender’s comprehensive opinion accurately disposes of the
issue presented by Appellant. Accordingly, we adopt Judge Brabender’s
opinion as our own and affirm Appellant’s judgment of sentence for the
reasons set forth therein. Additionally, as our review of the record reveals no
other, non-frivolous issues that Appellant could assert herein, we grant
counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/22/2023
Circulated 05/19/2023 12:02 PM
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OPINION OPINION
This matter is before the Court on Notices of Appeal filed on August 22, 2022 following
reinstatement of appellate rights on August 9, 2022 from judgments of sentence imposed at each
docket on March 7, 2022. Appellant's Statements of Matters Complained of on Appeal were filed
on September September 30, 2022. For the reasons set forth below, the judgments of sentence should be
affirmed.
BACKGROUND
On May 25, 2022, Petitioner filed a pro se Petition for Post-Conviction Collateral Relief.
essentially seeking reinstatement of direct appeal rights nunc pro tunc. On August 9, 2022, the
Court granted the request as to these dockets and appointed counsel to perfect the appeals.' On
December 30, 2021 at Docket No.
No, 2926-2021, and on January 27, 2021 at the remaining docket
numbers, Petitioner entered guilty pleas. He was sentenced at all dockets on March 7, 2022. A
summary of the factual basis for the pleas basis for pleas follows.
follows.
The PCRA was also filed at 'The at Docket No. 842-2022. On August 8, 2022, thehe Court dismissed the the PCR
A
PCRA as premature
sentence at No, 842-2022 when the was no conviction or final judgment of sentence because there was the PCRA was filed.
Il
Docket No. 2926-2021 On December 30, 2021, Appellant pied guilty as charged to Theft by Deception at No. On
for the plea is that on or 2926-2021. Te factual basis for or about May Erie, Pennsylvania, May 27, 2021 in Erie,
sum of $2,585.00
Appellant accepted the sum $2,585.00 from aa victim t.o to perform certain home improvement
the job(s) and he did not return funds for the work not performed work. Appellant did not complete the
or finished. At the plea hearing, Appellant executed aa Statement of Understanding of Rights and
he executed the reverse side of the Criminal Information originally filed on December 15, 2021.
Docket No. 3000-2021
guilty to Forgery' at No. 3000-2021. The factual On January 27, 2022, Appellant pled guilty
is that on June 14, 2021 in Erie, Pennsylvania, Appellant altered two checks he basis for the plea is
received from aa victim were written victim which were written in the amount of $100.00 $100.00 each by changing the amounts
of the checks to $400.00. At the plea hearing, Appellant executed the Statement of Understanding
Criminal Information filed on January 14, 2022.
of Rights, and the reverse side of the Criminal
Docket No, 3094-2021
or Fraudulent Business
pled guilty to Deceptive or On January 27, 2022, Appellant also plcd
No, 3094-2021. The factual basis for the conviction is that on June 10, 2021 in Erie, Practices at No.
$800.00 from the victim to perform home repairs.
Pennsylvania, Appellant received a deposit of $800.00
Appellant never performed any work for the customer and and failed to return the deposit when
Rights at the plea hearing and he requested. Appellant executed a Statement of Understanding of Rights signed the also signed reverse side the reverse side of
of the
the Criminal
Criminal Information 14, 2021 Information filed January 14, 2021 in acknowledgment acknowledgment
of the basis of the plea.
basis for the
$3922(a)(1).
18 Pa.C.S.A. 53922(a)01). 18Pa.C.S.A. 18P.S. 4101(a)(1). ·18P.S. '18 P.8. '18 P.8. $4107(a)02).
$4107(a)02).
Docket Docket No.
No. 3095-2021 3095-2021
On On January January 27,
27, 2022,
2022, Appellant
Appellant pled guilty at
pled guilty at No. 3095-2021 to No. 3095-2021 to another
another incident
incident of
of
Deceptive Deceptive or or Fraudulent
Fraudulent Business
Business Practices,
Practices, this
this one having occurred
one having occurred on
on June 16, 2021.
June 16, 2021. On
On that
that
date, date, Appellant Appellant received received from
from the
the victim
victim four
four separate
separate payments
payments totaling approximately $1,432.00 totaling approximately $1,432.00
to perform to perform home home repairs.
repairs. Appellant
Appellant failed to perform failed to perform the
the contracted-for
contracted-for work, yet he work, yet he retained
retained the
the
funds. funds. At At the the plea
plea hearing,
hearing, Appellant signed the Appellant signed the Statement Statement of Understanding of of Understanding Rights, and of Rights, and he
he
executed executed the the reverse reverse side
side of the Criminal Information of the Information filed filed on
on January 14, 2022.
January 14, 2022.
Docket Docket No.
No. 3096-2021 3096-2021
On On January January 27,
27, 2022,
2022, Appellant
Appellant pied to another guilty to
pied guilty another count count of Deceptive or
of Deceptive or Fraudulent Fraudulent
Business Business Practices.
Practices. The factual basis The factual basis for
for the
the plea
plea is
is that
that on May 30,
on May 30, 2021, Appellant, after 2021, Appellant, after
receiving receiving and and cashing
cashing aa check
check from victim in
from aa victim in the
the amount
amount of $250.00 to
of $250.00 perform home to perform home repairs,
repairs,
told told the the victim victim the the check
check had
had been
been destroyed.
destroyed. Appellant
Appellant had
had the
the victim write out
victim write out to
to him aa
"replacement" "replacement" check.
check. Appellant
Appellant attempted to cash attempted to cash the
the second
second check. Appellant failed check. Appellant failed to to perform
perform
any any services services or or supply
supply any
any products.
products. Appellant signed the Appellant signed the Statement Statement of Understanding of of Understanding of Rights, Rights,
and and executed executed the the reverse
reverse side
side of
of the
the Criminal
Criminal Information
Information filed
filed on
on January
January 14,
14, 2022.
2022.
Docket Docket No.
No. 3195-
3195- 2021
2021
Lastly, Lastly, on on January
January 27,
27, 2021,
2021, Appellant
Appellant pled
pled guilty Identity The.° to Identity
guilty to The.° The The conviction
conviction arose
arose
from from Appellant's Appellant's actions actions on
on August
August 19,
19, 2021 in providing
2021 in to a
providing to manager at a manager at Carter
Carter Lumber
Lumber the
the
name, name, social social security security number
number and
and date
date of
of birth of aa third person.
birth of person. At At the
the plea
plea hearing,
hearing, Appellant
Appellant
signed signed the the Statement Statement of Understanding of of Understanding Rights, and of Rights, and he
he executed
executed the
the reverse
reverse side
side of
of the
the Criminal
Criminal
Information Information filed filed on
on January 18, 2022.
January 18, 2022.
•18 P.S. $410732)2). •18P.S. $410732)2). • 18P.S.
P.S. 4120(a).
4120(a).
On March 7, On March 7, 2022, 2022, Appellant
Appellant was
was sentenced
sentenced to an aggregate of an aggregate of 31
31 months (2 years
months (2 years and
and 77
months) to months) to 62 62 months
months (5
(5 years
years and
and 2
2 months)
months) of
of incarceration,
incarceration, plus restitution, as plus restitution, as follows.
follows.
Docket No. 2926-2021 Docket No. 2926-2021 -- Count Count One:
One: Theft
Theft by Deception- 12
by Deception- 12 months to 24 months to 24
months months of
of incarceration,
incarceration, and
and restitution
restitution of
of $2,000.00;
$2,000.00;
Docket No. 3000-2021 Docket No. 3000-2021 -- Count Count One:
One: Forgery- months to Forgery- 66 months to 12
12 months
months of
of
incarceration, incarceration, and
and restitution of $1,040.00, restitution of $1,040.00, consecutive consecutive to No. 2926
to No. 2926 of
of
2021; 2021;
Docket No. Docket No. 3094-2021
3094-2021 -- Count
Count One:
One: Deceptive
Deceptive oror Fraudulent Fraudulent Business
Business
Practices -1 months Practices to 2
months to 2 months
months of incarceration, consecutive of incarceration, consecutive to No. 3000 to No. 3000
- - 2021;
2021;
Docket No. 3095-2021 Docket No. 3095-2021 -- Count Count One: Deceptive or One: Deceptive or Fraudulent Fraudulent Business
Business
Practices - 66 months Practices - months to 12 12 months
months of
of incarceration,
incarceration, and
and restitution
restitution of
of
$1,500.00, $1,500.00, consecutive to No.
consecutive to No. 3094
3094 --2021;
--2021;
Docket No. 3096-2021 Docket No. 3096-2021 -- Count Count One: Deceptive or
One: Deceptive or Fraudulent Fraudulent Business
Business
Practices Practices --
-- 66 months to 12
months to 12 months
months of
of incarceration, plus restitution incarceration, plus restitution of of
$215.00, $215.00, consecutive
consecutive to No.
No. 3095-2021;
3095-2021; and
Docket No. 3195- Docket No. 3195- 2021
2021 -- Count
Count One: Identity Theft- 66 months One: Identity to 12 months to 12 months
months
of of incarceration,
incarceration, and
and restitution of $524.64, restitution of $524.64, concurrent concurrent with No. 3096-2021.
with No. 3096-2021.
Each Each sentence sentence was was at
at the lowest end
the lowest end of
of the
the standard range of
standard range of the
the sentencing
sentencing guidelines.
guidelines.
No No post post sentence motion was
sentence motion was filed filed at
at any
any docket.
docket. At sentencing, no At sentencing, objection was no objection was raised
raised
to to the the sentence sentence at at any
any docket.
docket. Prior
Prior to
to imposition
imposition of
of sentence, plea and
sentence, plea sentencing counsel and sentencing counsel
informed informed the Court that the Court that Appellant Appellant has
has been
been incarcerated
incarcerated for
for some
some time; Appellant became time; Appellant became lost lost in
in
addiction addiction and and committed
committed aa series
series of
of crimes he later
crimes he regretted; he later regretted; he entered entered aa plea
plea to
to each
each offense;
offense;
through through counsel, counsel, Appellant Appellant apologized
apologized to
to the
the victims;
victims; and
and in
in counsel's
counsel's assessment,
assessment, Appellant
Appellant
appeared appeared remorseful.
remorseful. See See Transcript
Transcript of Proceedings, Revocation of Proceedings, Revocation and and Sentencing hearing held Sentencing hearing held
March 7, 2022 March 7, (Tr. Revo.
2022 (Tr. & Sent.
Revo. & Sent. 3/7/22),
3/7/22), p. 5.
At At allocution, allocution, Appellant
Appellant cited
cited factors
factors he
he believed
believed contributed
contributed to
to the
the addiction
addiction he
he claimed
claimed
led led to to his his crimes:
crimes: the
the young
young age
age of
of his
his mother
mother at
at her
her death
death and
and manner
manner of the criminal death; the of death; criminal and and
5
addictive history of his father; the father's absence from his life; and the the death of his stepmother
pp. 6-7. Appellant expressed remorse for his and reason therefore. See Tr. Revo. & Sent. 3/7/22, pp.
actions; he acknowledged he owes restitution, and stated he desires to "do the right thing." He
also reviewed also at p.77.. Appell reviewed his criminal history. Id. at Appellant the ant requested the opportunity to "break the son. Id.
cycle" for his son.. atp. 8.
Id. at 8. Appellant apologized; he asked if ifhis
his sentence "could run concurrent
Id. at
with this sentence that I have up state"; and advised he filed for a drug treatment program. Id.
p. 8. p.8.
On September 9, 2022, the Court issued Notices ofAppeal were filed on August 22, 2022. On
a Rule 1925(b) Concise Statement ofMatters Complained of on Appeal at each docket and directed
1925b) Statements timely filed and served pursuant to any issue not properly included in 1925(b)
Pa.R.A.P. 1925(b) would be deemed waived. On On September 30, 2022, Appellant filed a Statement
of Matters Complained of on Appeal at each docket.
In the 1925(b) Statements, Appellant avers identical sentencing claims:
Petitioner argues that the sentence he received was manifestly excessive and clearly unreasonable, particularly in its consecutiveness to the other sentences he received, considering his remorse, his acceptance of wrongdoing, his intention to repay his victims by working, and his substance abuse issues that contributed to his wrongdoing.
See Statement of See Statement Matters Complained ofMatters of On Appeal Complained of Appeal at at each
each docket.
docket.
DISCUSSION
A. Sentencing claims are waived.
The claims present challenges to the discretionary aspects of the sentences. Under the
facts, the claims are waived.
claims are
It is boilerplate law the right to to appellate review of discretionary aspects of a sentence is
absolute and must not absolute must be be considered
considered a petition for permission to appeal. For For permission to be
be
granted, an appellant granted, an must preserve appellant must his claims preserve his claims at
at the
the time of sentencing
time of sentencing or in aa post-sentence or in post-sentence
motion, motion, file file aa timely timely notice
notice of
of appeal, include in his appeal, include his brief brief aa statement
statement of
of reasons
reasons for
for allowance
allowance of
of
appeal pursuant appeal to Rule pursuant to Rule of Appellate Rule of Appellate of Criminal Procedure Rule of 2119(f), and Procedure 2119(f), and raise raise a substantial
substantial
question question for review. See for review. See Commonwealth v. Conte, Commonwealth v. 198 A.3d Conte, 198 A.3d 1169, 1173 (Pa.
1169, 1173 Super. 2018)(citation (Pa. Super. 2018)(citation
omitted). omitted).
As to to the requirement an
the requirement appellant must an appellant preserve his must preserve his claims
claims at
at time
time of sentencing or
of sentencing or in
in aa
post-sentence post-sentence motion, motion, again, the issues again, the issues must
must be raised in aa post-sentence be raised post-sentence motion motion or
or by
by presenting
presenting
the the claim claim to the trial court to the court during during the
the sentencing proceedings. That sentencing proceedings. That is, is, an appellant must
an appellant place on must place on
the record an the record an objection objection to
to the
the sentence
sentence and request aa remedy, and request remedy, or or file
file aa post-sentence motion. See post-sentence motion. See
Commonwealth Commonwealth v.
v. McAfee,
McAfee, 849
849 A.2d
A.2d 270,
270, 275
275 (Pa.
(Pa. Super. 2004). "Absent Super. 2004). such efforts, "Absent such efforts, an
an
objection objection to to aa discretionary aspect of discretionary aspect sentence is of aa sentence waived." Id,, is waived." citing Commonwealth Id,, citing Commonwealth • • Watson,
Watson,
835 835 A.2d A.2d 786, 791 Pa.
786, 791 Pa. Super. 2003). "This Super. 2003). "This failure failure cannot
cannot be cured by
be cured submitting the by submitting challenge in the challenge in
aa Rule statement." Commonwealth 1925(b) statement."
Rule 1925(b) • Mcfee, Commonwealth • Mcfee, 849 849 A.2d
A.2d at
at 275.
275.
Here, Here, no no post-sentence
post-sentence motion
motion was
was filed
filed at any docket.
at any docket. Also,
Also, after imposition of after imposition of sentence, sentence,
no no objection objection to to aa sentence
sentence based
based upon mitigating factors upon mitigating factors was was placed upon the
placed upon the record.
record. See
See Tr.
Revo. & Sent. Revo. & Sent. 317/22, pp. 11-14.
317/22, pp. 11-14. The challenges in The challenges in the 1925(b) statements the 1925(b) statements to to the
the discretionary
discretionary
aspects aspects of of the the sentences
sentences do
do not
not save
save the
the claims.
claims. Appellant's challenges to Appellant's challenges to the the discretionary
discretionary aspects
aspects
of of the scntence are the scntence are waived.
waived. The appeals must
The appeals must be dismissed.
dismissed.
B. B. Sentencing Sentencing claims claims are
are meritless.
meritless.
Assuming arguendo Assuming arguendo the claims as to the claims to the aspects of discretionary aspects
the discretionary of sentence sentence have
have been
been
preserved, the preserved, the court court must
must consider
consider whether
whether aa substantial question for substantial question for review review has
has been
been raised.
raised.
A substantial A question exists substantial question only when exists only appellant advances an appellant
when an colorable argument advances aa colorable argument the the
judge's actions
sentencing judge's sentencing either inconsistent were either
actions were specific provision with a specific
inconsistent with the Sentencing of the
provision of Sentencing
Code, or Code, or contrary to the fundamental norms contrary to the sentencing underlying the
norms underlying sentencing process.
process. See See
Commonwealth McNabb, 819 A.2d 54, 56 Commonwealth •v. McNabb, omitted); Commonwealth 56 (Pa. Super. 2003)(citation omitted); Commonwealth ». v. Clarke, 70 A.3d Clarke, 70 1281, 1286-87 A.3d 1281, 1286-87 (Pa. Super. 2013)(citation omitted).
Super. 2013)(citation Appellant contends omitted). Here, Appellant contends
the Court the failed to Court failed consider all to consider required factors all required in the factors in the Sentencing when it Code when
Sentencing Code imposed his it imposed his lowlow
-
end end standard-range sentences. Failure to standard-range sentences. consider the to consider required factors the required constitutes aa substantial factors constitutes substantial
question for question appellate review.
for appellate See Commonwealth review. See ». Swope, Commonwealth ». 123 A.3d.
Swope, 123 333, 340 A.3d. 333, 340 (Pa. Super.
Super.
2015)(failure to 2015)(failure consider rehabilitative to consider needs and rehabilitative needs mitigating factors and mitigating raised aa substantial factors raised substantial question);
question);
see also see 42 Pa.C.S.
also 42 Pa.C.S. §972l(b).
§972l(b).
A challenge to the challenge to discretionary aspects the discretionary of aa sentence is aspects of reviewed for an abuse is reviewed ofdiscretion.
abuse of discretion.
Commonwealth v. Moury, Moury, 992, 162, 169 A.2d 162,
992, A.2d 169 (Pa. Super.
Super. 2010)citation omitted). When 2010)(citation omitted). When
reviewing the reviewing the discretionary aspects of discretionary aspects that falls sentence that
of aa sentence within the falls within guidelines, the the sentencing guidelines, the
appellate must affirm unless court must
appellate court unless "application of the "application of guidelines would the guidelines would be clearly unreasonable."
be clcarly unreasonable."
42 Pa.C.S.
Pa.C.S. 59781(c)2).
$9781(c)2).
When When imposing sentence, the imposing sentence, court must the court consider "the must consider "the protection of the protection of public, the the public, the gravity
gravity
of offense as the offense of the relates to it relates as it the impact on to the life of the life on the and on victim and
the victim of the on the community, and the community, and the
the
rehabilitative needs rehabilitative needs of the defendant."
of the 42 Pa.C.S.
defendant." 42 §972l(b). "Where Pa.C.S. 89721(b). court bad sentencing court
"Where the sentencing had the the
benefit of aa presentence benefit of investigation report presentence investigation report (PSI), [the appellate court] can assume the can assume the
sentencing court was aware of sentencing court relevant information of the relevant the defendant's information regarding the character and defendant's character
those considerations weighted those factors. Further, statutory factors.
considerations along with mitigating statutory where aa sentence Further, where sentence
is within is within the ofthe guidelines, Pennsylvania standard range of
the standard Pennsylvania law views the sentence as views the as appropriate appropriate
8
under under the Sentencing Code."
the Sentencing Code." Commonwealth Commonwealth • Hill, 210
• Hill, 210 A.3d
A.3d 1104,
1104, 1117
1117 (Pa.
(Pa. Super.
Super.
2019)(internal quotations & 2019)(internal quotations & citation citation omitted).
omitted).
The imposition of The imposition of aa sentence sentence of
of confinement
confinement to
to run consecutively is
run consecutively clearly within the is clearly the
authority authority of of the
the sentencing court. See sentencing court. See 42
42 Pa.C.S.A.
Pa.C.S.A. $9721(a); Commonwealth ».
$9721(a); Commonwealth ». Pierce, Pierce, 441
441 A.2d
A.2d
1218 1218 (Pa.
(Pa. Super. 1982), Commonwealth Super. 1982), Commonwealth v.
v. Wright,
Wright, 832
832 A.2d 1104, 1107
A.2d 1104, (Pa. Super.
1107 (Pa. 2003). It Super. 2003). It is
is
well-accepted well-accepted "[i]n imposing a "[i]n imposing a sentence, the trial sentence, the may determine judge may
trial judge determine whether, given the whether, given the facts
facts of
of
aa particular particular case, case, aa sentence
sentence should
should run consecutive to run consecutive to or
or concurrent
concurrent with
with another
another sentence
sentence being
being
imposed. Commonwealth imposed. Commonwealth ».
». Wright,
Wright, 832
832 A.2d
A.2d at
at 1107.
1107.
At At sentencing, the Court
sentencing, the Court stated:
stated:
THE THE COURT:
COURT: You won't be released You won't released for for a while. II mean,
a while. mean, with
with your
your prior
prior
record record and
and all
all the
the people
people you scammed, II think you're you scammed, you're sorry sorry you
you got
got caught
caught
and and the consequences. II think the consequences. think that's that's what
what you
you regret right now.
regret right now. This
This has
has
been going on been going fur way
on fur way too We had long. We
too long. had this discussion before.
this discussion before. You You know,
know,
you you can
can lay
lay blame
blame onon this
this person and that
person and person, but that person, it's all but it's all on
on you.
you.
THE THE COURT:
COURT: More
More robbing
robbing Peter
Peter to Paul. All
pay Paul. to pay All right,
right, Attorney
Attorney
Maskrey? Maskrey?
...
THE THE COURT:
COURT: AII right. Taking AII right. Taking into
into consideration
consideration the
the statements
statements of of both
both
counsel, counsel, statement
statement of
of the
the defendant,
defendant, the
the presentence
presentence investigation report as investigation report as well well as
as the
the revocation
revocation summary
summary andand the guidelines as the guidelines as propagated propagated by by the
the
Pennsylvania Pennsylvania Commission
Commission on [Sentencing as on [Sentencing well as as well as the very extensive the very extensive
criminal history, and, criminal history, and, once again, these once again, these are
are the types of
the types of crimes
crimes that drive
drive the
the
honest citizenry out honest citizenry out there there crazy,
crazy, and
and we've
we've had
had too
too much
much of of this
this from
from you,
you,
David. David. At 2926 At of 2021,
2926 of 2021, count
count one,
one, the
the sentence
sentence will
will be
be that you serve
that you serve ....
....
See Tr. See Tr. Revo. & Sent.
Revo. & Sent. 3/7/22, 3/7/22, pp. 9, 1I.
1I.
Assuming arguendo Assuming arguendo the the claims
claims as to
to the
the discretionary aspects of discretionary aspects of sentence sentence have
have been
been
preserved, preserved, the the record
record reveals claims are Appellant's claims
reveals Appellant's are frivolous.
frivolous. The which are sentences, which
The sentences, are at at the
the
9
are presumed appropriate under the standard range of the sentencing guidelines, are bottom of the standard the Sentencing Code. Sentencing the Court Also, the
Code. Also, and reviewed ordered and
Court ordered presentence investigation reviewed aa presentence report and investigation report and
weighed information in the the information weighed the the report the sentences.
crafting the
report in crafting See Tr. Revo.
sentences. See Revo. & Sent. 3/7/22, & Sent. 3/7/22, p.
11. Additionally, the Court Additionally, the argument from considered argument
Court considered counsel, including from counsel, information about including information about
Appellant's the fact addiction, the
Appellant's addiction, Appellant entered fact Appellant pleas, and entered guilty pleas, and counsel's expressions of counsel's expressions of
Appellant's regret Appellant's remorse. The and remorse.
regret and also considered Court also
The Court allocution from considered allocution from Appellant.
Appellant.
Under circumstances, it is these circumstances,
Under these is properly the Court assumed the
properly assumed Court weighted relevant factors all relevant
weighted all factors
under the Sentencing under the and considered Code and
Sentencing Code mitigating evidence considered mitigating imposing the in imposing
evidence in sentences at the the sentences the
bottom of the bottom of standard range the standard of the guidelines.
range of The Court guidelines. The properly exercised Court properly exercised its discretion discretion in
in
imposing sentences. The consecutive sentences.
imposing consecutive claims are appellate claims
The appellate meritless and are meritless the appeals must and the must be
dismissed. dismissed.
CONCLUSION CONCLUSION
For the For the above reasons, the above reasons, appeals must the appeals must be dismissed and be dismissed the judgments and the sentence should of sentence
judgments of should
be affirmed.
affirmed. The Clerk of The Clerk Courts is
of Courts hereby directed is hereby directed to the record transmit the to transmit to the record to Superior Court.
the Superior Court.
THE COURT: BY THE BY COURT:
cc: cc: Attorney's Office District Attorney's Office Tina M. Tina Esq., 4402 Fryling, Esq., M. Fryling, Peach Street, 4402 Peach No. 3, Suite No.
Street, Suite PA 16509 Erie, PA 3, Erie, 16509
David A. David ID No.
Jr., Inmate ID
Santia, Jr., A. Santia, QN-6750, SCI No. QN-6750, Houtzdale, 209 SCI Houtzdale, Drive, PP.O.
Institution Drive,
209 Institution .0.
Box 1000, Box Houtzdale, PA 1000, Houtzdale, PA 16698-1000 LEGAL MAIL 16698-1000 LEGAL MAIL