Com. v. Sims, J.

• Court: Superior Court of Pennsylvania
• Decided: December 24, 2018
• Docket: 1408 EDA 2018
• Status: Unpublished

Opinion

J-S70035-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JASON SIMS : : Appellant : No. 1408 EDA 2018

Appeal from the Judgment of Sentence March 30, 2018 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003388-2014

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 24, 2018

Appellant, Jason Sims, appeals from the amended judgment of sentence

entered in the Chester County Court of Common Pleas, following revocation

of his probation. We affirm and grant counsel’s petition to withdraw.

The relevant facts and procedural history of this case are as follows. On

September 13, 2013, police received reports that Appellant was creating a

disturbance at a restaurant. By the time officers arrived at the scene,

Appellant had already gone. While searching the area, officers observed a

male matching Appellant’s description seated on a bench at a train station.

Appellant began to walk away when the officers approached. As the officers

pursued Appellant, a train pulled into the station, and Appellant attempted to

board it. The officers managed to pull Appellant away from the train and,

after a physical struggle, placed Appellant under arrest. J-S70035-18

On November 19, 2014, Appellant entered a negotiated guilty plea to

resisting arrest and simple assault, and the court imposed the negotiated

sentence of four (4) years’ probation. On March 26, 2018, the court revoked

Appellant’s probation, because Appellant had been convicted of possession of

marijuana and had threatened a parole agent. That same day, the court

resentenced Appellant on his 2014 convictions to an aggregate term of three

(3) to twenty-three (23) months’ imprisonment. On March 28, 2018,

Appellant timely filed a motion for modification of sentence, which the court

denied on March 29, 2018.

On March 30, 2018, the court entered an amended sentencing order to

reflect Appellant’s accurate time served and to clarify that Appellant could be

re-paroled directly to a Veterans’ Affairs program. Appellant timely filed a

notice of appeal on April 26, 2018. On May 3, 2018, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). In lieu of a concise statement, counsel filed a

Rule 1925(c)(4) statement of his intent to file an Anders1 brief on May 23,

2018. On September 7, 2018, counsel filed a petition to withdraw and an

Anders brief in this Court.

As a preliminary matter, counsel seeks to withdraw his representation

pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,

____________________________________________

1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition

the Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; (2)

file a brief referring to anything in the record that might arguably support the

appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61. Substantial compliance with these requirements is

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor [Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.

* * *

Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and

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counsel’s references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel 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.

Id. at 178-79, 978 A.2d at 361.

Instantly, Appellant’s counsel has filed a petition to withdraw. The

petition states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or to proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention. In the Anders brief, counsel provides a

summary of the facts and procedural history of the case. Counsel’s argument

refers to relevant law that might arguably support Appellant’s issues. Counsel

further states the reasons for his conclusion that the appeal is wholly frivolous.

Therefore, counsel has substantially complied with the technical requirements

of Anders and Santiago.

Appellant has not responded to the Anders brief pro se or with newly

retained private counsel. Counsel raises the following issues on Appellant’s

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behalf:

ARE THERE ANY NON-FRIVOLOUS ISSUES PRESERVED ON APPEAL?

WAS THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS EXCESSIVE OR OTHERWISE ILLEGAL?

(Anders Brief at 4).

When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding and the legality of the

judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d 1021

(Pa.Super. 2005). Notwithstanding the stated scope of review suggesting only

the legality of a sentence is reviewable, an appellant may also challenge the

discretionary aspects of a sentence imposed following revocation.

Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). See also

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc)

(discussing that scope of review following revocation proceedings includes

discretionary sentencing claims).

In his first issue, Appellant argues the revocation court improperly found

he had violated his probation. Appellant concludes this Court should vacate

the revocation sentence. We disagree.

In the context of probation revocation and resentencing, the Sentencing

Code provides, in pertinent part:

§ 9771. Modification or revocation of order of probation

(a) General rule.—The court may at any time

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terminate continued supervision or lessen or increase the conditions upon which an order of probation has been imposed.

(b) Revocation.—The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.

(c) Limitation on sentence of total confinement.—The court shall not impose a sentence of total confinement upon revocation unless it finds that:

(1) the defendant has been convicted of another crime; or

(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or

(3) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S.A. § 9771(a)-(c). A guilty plea admits that the allegations, if

proved, meet the elements of the offenses charged and constitutes a criminal

conviction the same as a trial verdict. See Commonwealth v. Palarino, 77

A.2d 665 (Pa.Super. 1951).

Here, in 2014, Appellant entered a negotiated guilty plea to resisting

arrest and simple assault, and the court sentenced Appellant to an aggregate

term of four (4) years’ probation. While serving probation for his 2014

convictions, Appellant threatened a parole agent and was convicted of

possession of marijuana. Appellant’s new conviction constituted a violation of

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his probation, and the revocation court properly revoked Appellant’s probation

and resentenced Appellant. See 42 Pa.C.S.A. § 9771(a)-(c); Palarino,

supra. Therefore, Appellant’s first issue merits no relief.

In his second issue, Appellant contends that his revocation sentence was

unduly harsh and excessive. Appellant concludes this Court should vacate the

judgment of sentence and remand for resentencing. As presented, Appellant’s

claim challenges the discretionary aspects of his sentence. See

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that

sentence is manifestly excessive challenges discretionary aspects of

sentencing). We disagree.

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Sierra, supra at 912. Prior to reaching

the merits of a discretionary sentencing issue:

[W]e 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 [Rule 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.A. § 9781(b).

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (most internal citations omitted).

When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

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separate concise statement demonstrating a substantial question as to the

appropriateness of the sentence under the Sentencing Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Pa.R.A.P.

2119(f). This Court must evaluate what constitutes a substantial question on

a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super.

2007). 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.” Sierra,

supra. A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627.

“[T]he revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be disturbed

on appeal in the absence of an error of law or an abuse of discretion.”

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super. 2006). See

also Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).

Following the revocation of probation, the court may impose a sentence of

total confinement if any of the following conditions exist: the defendant has

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been convicted of another crime; the conduct of the defendant indicates it is

likely he will commit another crime if he is not imprisoned; or, such a sentence

is essential to vindicate the authority of the court. See 42 Pa.C.S.A. §

9771(c). The Sentencing Guidelines do not apply to sentences imposed

following a revocation of probation. Commonwealth v. Ferguson, 893 A.2d

735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196

(2006). The record as a whole can be used to evaluate the sentencing court’s

consideration of the facts of the case and the defendant’s character.

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal

denied, 608 Pa. 661, 13 A.3d 475 (2010). See also Commonwealth v.

Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013) (explaining where revocation

court presided over defendant’s no contest plea hearing and original

sentencing, as well as his probation revocation hearing and sentencing, court

had sufficient information to evaluate circumstances of offense and character

of defendant when sentencing following revocation).

Instantly, Appellant raised his sentencing issue in a post-sentence

motion and filed a timely notice of appeal. Appellant, however, did not set

forth a separate statement of reasons for review under Rule 2119(f) in his

appellate brief, which ordinarily waives a discretionary-aspects-of-sentencing

issue, unless the Commonwealth fails to object to the omission. See

Commonwealth v. Saranchak, 544 Pa. 158, 675 A.2d 268 (1996), cert.

denied, 519 U.S. 1061, 117 S.Ct. 695, 136 L.Ed.2d 617 (1997) (stating court

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may overlook appellant’s failure to provide Rule 2119(f) statement when

appellee fails to object, if substantial question is evident from appellant’s brief;

boilerplate assertions do not qualify as substantial questions regarding

discretionary aspects of sentencing). But see Commonwealth v. Lilley, 978

A.2d 995, 998 (Pa.Super. 2009) (noting Anders requires review of issues

otherwise waived on appeal to determine their merit in order to rule on

counsel’s request to withdraw).

Here, the Commonwealth did not object to the missing Rule 2119(f)

statement in Appellant’s brief. Therefore, we may overlook the omission. See

Saranchak, supra. Moreover, counsel filed an Anders brief, so we would

examine the issue in any event. See Lilley, supra. As presented, however,

Appellant’s bald claim of excessiveness does not raise a substantial question.

See Mouzon, supra.

Moreover, at Appellant’s revocation of probation and re-sentencing

hearing, the court reasoned:

Here’s where I’m at. I have, I guess, three different assault convictions all tied into mental health issues, a DUI conviction and now a new conviction.

Here’s what I know. You keep getting in trouble and every time—let me finish. Every time you get in trouble, you didn’t really do it. It’s somebody else’s fault. It’s your parent’s fault. It’s [the parole agent’s] fault… You are a guy that needs mental health counselling big time.

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And the situation was I tried to give you an indication that I wasn’t going to hammer you here. I’m giving you the bottom of the standard range, which is three months to 23. You can get paroled after the three months, which is giving you credit from January 22nd of ’18.

(N.T. Sentencing Hearing, 3/26/18, at 30-31). In determining the revocation

sentence of three (3) to twenty-three (23) months’ imprisonment, the court

considered Appellant’s criminal history, prior behavior, and mental health.

Furthermore, the court sentenced Appellant to a term of imprisonment,

following his conviction for a new crime, and imposed a sentence at the bottom

of the standard range. In light of this information, Appellant’s sentence was

not excessive. See Crump, supra; 42 Pa.C.S.A. § 9771(c). The court was

well within its authority to sentence Appellant to the term it imposed. See

MacGregor, supra. Therefore, Appellant’s sentencing issue merits no relief.

Following our independent review of the record, we agree with counsel that

the appeal is wholly frivolous. See Palm, supra. Accordingly, we affirm the

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

Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/24/18

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