Com. v. Soto-Moreno, G.

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2019
• Docket: 3072 EDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

GERMAN SOTO-MORENO,

Appellant. : No. 3072 EDA 2018

Appeal from the Judgment of Sentence Entered, September 12, 2018, in the Court of Common Pleas of Chester County, Criminal Division at No(s): CP-15-CR-0000423-2017, CP-15-CR-0000424-2017. BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 09, 2019

German Soto Moreno appeals from the judgment of sentence imposed

following his conviction of multiple counts of burglary' and related offenses.

Additionally, Moreno's counsel has filed a petition to withdraw as counsel and

an accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744

(1967). We grant counsel's petition, and affirm Moreno's judgment of

sentence.

Between August and September of 2016, several burglaries occurred at

modular or trailer -style residences in Chester County, Pennsylvania, which

were occupied by low-income, migrant farmworkers of Hispanic descent. In

' 18 Pa.C.S. § 3502(a)(2). J -S30029-19

each instance, the burglar entered the premises while the occupants were out

working in the local mushroom industry, and stole jewelry, religious objects,

and U.S. currency.2 Police discovered that several of the stolen items had

been sold to pawn shops in Wilmington, Delaware. Surveillance video from

one of the pawn shops revealed that Moreno, using a fraudulent U.S.

permanent resident card,3 pawned the stolen items. During an interview with

police, Moreno confessed to committing the crimes.

Police arrested Moreno and charged him with multiple counts of burglary

at two separate docket numbers. On March 26, 2018, Moreno entered an

open guilty plea to one count of burglary at docket number CP-15-CR-423-

2017, and six counts of burglary at docket number CP-15-CR-424-2017.4 All

of the convictions were graded as first -degree felonies. On June 13, 2018,

the trial court sentenced Moreno to five to twenty years of imprisonment for

the single count of burglary at 423-2017. At 424-2017, the trial court

2Because of their immigration status, these types of victims generally avoid using banking institutions, and sometimes keep large amounts of U.S. currency in their residences.

3Moreno is a Mexican citizen who is not lawfully in this country. He has been deported twice, and each time he has returned illegally back into this country.

4 At the time of the burglaries, Moreno was serving a term of parole for prior residential burglary convictions at four other docket numbers: CR-1158-2015; CR-1205-2013; CR-3233-2013; and CR-2743-2013. The trial court revoked his parole at those docket numbers, and reinstated probationary sentences on his prior convictions.

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sentenced Moreno to ten to twenty years of imprisonment for each of the six

counts of burglary, to be served concurrently with each other and

consecutively to the sentence imposed at 423-2017.

Moreno filed a motion for reconsideration of sentence, which resulted in

the reduction of his sentence at 423-2017 to three to twenty years of

imprisonment. Moreno filed a second motion for reconsideration of sentence,

which resulted in the further reduction of his sentence at 423-2017 to three

to six years of imprisonment on September 12, 2018.5 Upon both motions,

the trial court denied reconsideration of Moreno's sentence imposed at 424-

2017. Thus, following reconsideration, his aggregate sentence was reduced

to thirteen to twenty-six years in prison.

On October 1, 2018, Moreno filed a timely pro se notice of appeal. The

trial court appointed counsel, who filed another notice of appeal on October

12, 2018.6 The trial court ordered Moreno to file a Pa.R.A.P. 1925(b) concise

5 This sentence fell within the standard range of the sentencing guidelines.

The sentences imposed at 424-2017 were the statutory maximum.

6 The notice of appeal filed by counsel is deficient insofar as it does not comply with Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (decided June 1, 2018, and holding that, "in future cases when a single order . . .

resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal."). Instead, counsel filed a single notice of appeal listing both docket numbers. Notwithstanding, the certified record reflects that Moreno filed a timely pro se notice of appeal in the trial court at both docket numbers. However, those filings are not included in the certified record. Given our willingness to construe pro se filings liberally, we will assume for purposes of

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statement of errors complained of on appeal. In response, counsel filed a

statement of intent to file an Anders brief. Given that neither counsel nor

Moreno raised any claim of error before the trial court, the trial court declined

to file an opinion pursuant to Pa.R.A.P. 1925(a).

In this Court, counsel filed a petition to withdraw as counsel and an

accompanying Anders brief. In the Anders brief, counsel raises the following

issues that might arguably support the appeal:

1. Did the imposition of an aggregate sentence of thirteen (13) to twenty-six (26) years' confinement for seven [b]urglary convictions raise a substantial question that the Sentencing Code was violated by the sentencing court?

2. Ifa substantial question was raised, did the sentencing court abuse its discretion?

Anders Brief at 5 (numbering added).

"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." Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc) (citation omitted). Pursuant to Anders, when counsel

believes an appeal is frivolous and wishes to withdraw from representation,

she 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

this appeal that Moreno's pro se notices of appeal complied with the dictates of Walker. See Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003).

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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 he deems worthy of this Court's attention. 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 has complied with each of the requirements of Anders.

Counsel indicates that she conscientiously examined the record and

determined that an appeal would be frivolous. Further, the Anders brief

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comports with the requirements set forth by the Supreme Court of

Pennsylvania in Santiago. Finally, the record includes a copy of the letter

that counsel sent to Moreno, advising him of his right to proceed pro se or

retain alternate counsel and file additional claims, and stating counsel's

intention to seek permission to withdraw.7 Accordingly, counsel has complied

with the procedural requirements for withdrawing from representation, and

we will conduct an independent review to determine whether Moreno's appeal

is wholly frivolous.

The issue raised in the Anders brief presents a challenge to the

discretionary aspects of Moreno's sentence.8 "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). Prior to

reaching the merits of a discretionary sentencing issue, this Court conducts 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 Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there

Moreno has not filed any response to the Anders brief. 8 As Moreno entered an open guilty plea, he retained the right to challenge the discretionary aspects of his sentence. See Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017) (holding that when a defendant enters a guilty plea which does not involve a plea bargain designating the sentence to be imposed, he waives the right to challenge all non -jurisdictional defects except the legality of the sentence and the validity of the plea, but retains the right to challenge the discretionary aspects of his sentence). - 6 - J -S30029-19

is asubstantial question that the sentence appealed from is not appropriate under the Sentencing Code, [see] 42 Pa.C.S. § 9781(b).

Id. (citation omitted). When an appellant challenges the discretionary aspects

of his sentence, we must consider his brief on this issue as a petition for

permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.

Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18

(Pa. 1987); 42 Pa.C.S. § 9781(b).

In the instant case, Moreno filed a timely notice of appeal, and two

timely post -sentence motions for reconsideration of sentence. However,

Moreno raised no excessiveness challenge in either motion. Nor did he claim

that his sentence was excessive at the original sentencing hearing, or during

the two hearings conducted on his motions for reconsideration. Generally,

issues that challenge the discretionary aspects of sentencing are waived if

they are not raised during sentencing proceedings or in a post -sentence

motion. See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super.

2004) (holding that issues challenging the discretionary aspects of a sentence

are waived if not raised in a post -sentence motion or by presenting the claim

to the trial court during the sentencing proceedings); see also Pa.R.A.P. 302.

Additionally, while the Anders brief includes a separate "Statement of

Reasons to allow Appeal from the Discretionary Aspects of Sentence," which

we presume is intended to be a Rule 2119(f) statement, it does not indicate

the manner in which Moreno's sentence raises a substantial question. See

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Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008) (stating

that an appellate court will only evaluate substantive discretionary sentencing

claims that were relied upon in the Rule 2119(f) concise statement).

While these deficiencies would generally result in waiver, in light of the

fact that counsel has filed an Anders brief and petition to withdraw, we will

address Moreno's contention. See Commonwealth v. Lilley, 978 A.2d 995,

998 (Pa. Super. 2009) (addressing a discretionary sentencing issue despite

the absence of a Rule 2119(f) statement in the Anders brief); see also Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)

(concluding that Anders requires review of issues otherwise waived on

appeal).

Our review is governed by the following principles:

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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation

omitted). In making a reasonableness determination, a court should consider

four factors:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

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(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d)(1)-(4).

Here, Moreno came before the trial court with a prior record score of

RFEL (repeat felon). He was sentenced on seven counts of residential

burglary, each graded as a first -degree felony with an offense gravity score of

seven. He was also on parole for four other residential burglary convictions.

Given his convictions and criminal history, Moreno faced a maximum

aggregate sentence of seventy to 140 years in prison. Yet, the trial court,

upon reconsideration, sentenced Moreno to an aggregate prison term of

thirteen to twenty-six years. Despite the imposition of a statutory maximum

sentence on six of the convictions, the trial court's decision to run those

sentences concurrently resulted in an aggregate sentence for all seven counts

of burglary in the mitigated range of the sentencing guidelines. Therefore,

Moreno's sentence is clearly not excessive.

Additionally, the trial court considered a pre -sentence investigation

report. Where a sentencing court is informed by a pre -sentence investigation

report, "it is presumed that the court is aware of all appropriate sentencing

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).

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Moreover, the trial court explained its reasons for the sentence on the

record, noting the nature of the crimes, Moreno's criminal record, his failure

to rehabilitate, and the fact that he was in this country illegally. See N.T.

Sentencing, 6/13/18, at 21-23; see also 42 Pa.C.S.A. § 9721(b). Thus, we

discern no abuse of discretion by the trial court, and agree with counsel's

conclusion that Moreno's excessive sentencing challenge is wholly frivolous

and does not entitle him to relief.

Finally, our review of the record discloses no other non -frivolous issues

that Moreno could raise that his counsel overlooked. Dempster, supra. Accordingly, we grant counsel's petition to withdraw, and affirm the judgment

of sentence.

Petition to withdraw granted, judgment of sentence affirmed.

Judgment Entered.

J seph D. Seletyn, Prothonotary

Date: 8/9/19

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