J-S40025-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRIAN KEITH SPENNY, : : Appellant : No. 1974 WDA 2014
Appeal from the Judgment of Sentence October 15, 2014, Court of Common Pleas, Erie County, Criminal Division at No(s): CP-25-CR-0000766-2014 and CP-25-CR-0000770-2014
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JULY 8, 2015
Brian Keith Spenny (“Spenny”) appeals from the October 15, 2014
judgment of sentence entered by the Erie County Court of Common Pleas.
Counsel for Spenny has filed an Anders1 brief and a motion to withdraw.
Upon review, we conclude that one of the issues raised by counsel in her
Anders brief is not frivolous. We therefore remand the case for the filing of
a supplemental concise statement of errors complained of on appeal
(“1925(b) statement”), a supplemental opinion by the trial court (“1925(a)
opinion”), and an advocate’s brief by counsel on Spenny’s behalf.
1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
*Retired Senior Judge assigned to the Superior Court. J-S40025-15
On September 8, 2014, Spenny pled guilty to two counts of conspiracy
to commit robbery of a financial institution.2 A presentence investigation
report (“PSI”) was prepared, revealing that Spenny had numerous theft-
related prior convictions from Arizona, New York, and federal offenses for
acts committed in Florida, Iowa and Illinois. On October 15, 2014, the trial
court sentenced Spenny to two consecutive terms of forty-five to ninety
months of incarceration, which were to run consecutively to sentences
Spenny was facing for parole violations in the State of New York.3 Counsel,
on behalf of Spenny, filed a timely motion to reconsider his sentence on
October 20, 2014. Therein, Spenny alleged that the PSI used by the trial
court was incorrect, as “many of the out of state offenses were graded
higher than [they should have been]” and some of his prior sentences
included in the PSI ran concurrently. Motion to Reconsider Sentencing,
10/20/14, ¶¶ 4-5. Spenny also asserted that the trial court failed to
adequately consider his cooperation with the Commonwealth in unrelated
criminal matters. He thus requested that the trial court resentence him to
two concurrent terms of imprisonment.
On October 29, 2014, believing that counsel had abandoned him,
Spenny filed a pro se notice of appeal, which the trial court’s prothonotary
2 18 Pa.C.S.A. §§ 903(a), 3701(a)(1)(vi). 3 As the issues raised on appeal solely pertain to the trial court’s calculation of Spenny’s sentence, a recitation of the facts underlying Spenny’s convictions is unnecessary.
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docketed and sent to counsel pursuant to Pa.R.Crim.P. 576(A)(4). The trial
court denied Spenny’s post-sentence motion on November 4, 2014,
concluding that although there were modifications that needed to be made
to the PSI, Spenny was not entitled to be resentenced as “the original
guideline computation for the mitigated, standard and aggravated ranges
remains unchanged.” Trial Court Order, 11/4/14, at 1 n.1.
Thereafter, counsel for Spenny filed a timely notice of appeal and
complied with the trial court’s order for the filing of a 1925(b) statement.
The trial court issued a responsive 1925(a) opinion on January 2, 2015.
Before we address the merits of Spenny’s appeal, we must discern
whether counsel has complied with Anders and Santiago:
The request by appointed counsel to withdraw pursuant to Anders triggers specific requirements, certain of which apply to appointed counsel and others to the court to which appointed counsel makes his or her request for withdrawal. These requirements and the significant protection they provide to an Anders appellant arise because a criminal defendant has a constitutional right to a direct appeal and to counsel on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). This Court has summarized these requirements as follows:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues
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necessary for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.
Id. (citations omitted).
There are also requirements as to the precise content of an Anders brief:
[T]he Anders brief that accompanies court- appointed counsel’s petition to withdraw ... 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.
If counsel has met these obligations, “it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” Id. at 354 n.5.
Commonwealth v. Flowers, __ A.3d __, 2015 WL 1612010, **1-2 (Pa.
Super. Apr. 10, 2015).
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Our review of counsel’s Anders brief and petition to withdraw confirms
that she complied with the foregoing requirements. Having received no
additional filings from Spenny, we turn to address the issues raised by
counsel:
[1.] Did the lower court commit reversible error in that its sentence was manifestly extreme and clearly unreasonable, particularly in its consecutiveness, and not individualized as required by law?
[2.] Did the lower court abuse its discretion when it considered information that was on the [PSI] that [Spenny] asserts was incorrect in that (1) many of the prior offenses had been run concurrently to each other and (2) the out of state offenses listed on the [PSI] were graded higher than they should have been?
Anders Brief at 1-2.
The issues raised challenge the discretionary aspects of Spenny’s
sentence, which, as counsel recognizes, is not subject to our review as a
matter of right. “An appellant must satisfy a four-part test to invoke this
Court’s jurisdiction when challenging the discretionary aspects of a
sentence,” by (1) preserving the issue in the court below, (2) filing a timely
notice of appeal, (3) including a Rule 2119(f) statement, and (4) raising a
substantial question for our review. Commonwealth v. Tejada, 107 A.3d
788, 797 (Pa. Super. 2015) (citation omitted).
Our review of the record reveals that Spenny preserved the issues he
now seeks to raise on appeal in his post-sentence motion, timely filed his
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notice of appeal, and included a statement pursuant to Pa.R.A.P. 2119(f) in
his brief on appeal. His Rule 2119(f) statement states only that the trial
court “did not individualize the sentence for Mr. Spenny,” but he includes no
citation indicating that this is a substantial question for our review. Anders
Brief at 4. Moreover, this claim does not fully encompass the two issues
Spenny seeks for us to review on appeal. Nonetheless, because this is an
Anders brief, we overlook any deficiency in the Rule 2119(f) statement and
review the issues raised. See Commonwealth v. Zeigler, 112 A.3d 656,
661 (Pa. Super. 2015). We now proceed to determine if the issues raised on
appeal present substantial questions for our review, and if so, to review the
merits of the arguments made in support.
In his first issue, Spenny asserts that the trial court abused its
discretion by running his sentences consecutively rather than concurrently,
resulting in a manifestly excessive sentence. See King’s Brief at 10-11.
Recently, in Commonwealth v. Caldwell, __ A.3d __, 2015 WL 3444594
(Pa. Super. May 29, 2015), an en banc panel of this Court addressed
whether this raises a substantial question:
A court’s exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Rather, the imposition of consecutive rather than concurrent sentences will present a substantial question in only “the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.”
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To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.
Id. at *3 (internal citations omitted, emphasis in the original).
In support of this claim, counsel for Spenny asserts that by running
the two sentences consecutively, the aggregate sentence was “manifestly
excessive and clearly unreasonable,” as the court failed to consider the facts
before it: Spenny’s “health problems”; his addiction to pain medication and
heroin; his completion of a drug and alcohol program; his cooperation with
the Commonwealth in unrelated criminal matters; and his acceptance of
responsibility and remorse for his actions. Anders Brief at 5-6. As Spenny
couches his claim of an excessive sentence in terms of the trial court’s
failure to consider mitigating factors, he raises a substantial question for our
review. Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014),
appeal denied, 105 A.3d 736 (Pa. 2014).
Our standard of review is well settled. We will not reverse a trial
court’s sentencing decision absent a manifest abuse of its discretion. Id.
This is more than a mere error in judgment. Id. “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,
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prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.”
Id.
The record reflects that the trial court reviewed and considered
Spenny’s PSI when fashioning his sentence. N.T., 10/15/14, at 11. When a
court is so informed, we presume that the court properly considered and
weighed all relevant factors in sentencing the defendant. Commonwealth
v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006). Furthermore, the trial
court expressly stated that it considered all of the factors Spenny claims the
trial court ignored. N.T., 10/15/14, at 11-12. Spenny was convicted of
perpetrating two separate bank robberies on two separate days. N.T.,
9/8/14, at 9-11. This Court has long said that a defendant is not entitled to
“a ‘volume discount’ for his crimes by having all sentences run concurrently.”
Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). We
therefore agree with counsel that this issue is wholly frivolous.
The second issue raised in counsel’s Anders brief addresses alleged
errors in the PSI, which Spenny contends improperly subjected him to a
higher guideline range because of the incorrect calculation of his prior record
score. Anders Brief at 6-7. Spenny asserts that some of his sentences
were run concurrently with one another, not consecutively, which the lower
court failed to consider. Id. at 6. Spenny further argues that many of his
New York convictions were improperly graded as second-degree felonies
(“F2s”), as opposed to third-degree felonies (“F3s”), as the convictions did
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not match a specific crime in Pennsylvania.4 Id. at 6-7. This raises a
substantial question for our review, and we therefore proceed to address the
issue on its merits. See Commonwealth v. Janda, 14 A.3d 147, 165 (Pa.
Super. 2011) (“improper calculation of a prior record score based on out-of-
state offenses raises a substantial question”).
The trial court found that Spenny was not entitled to resentencing:
Upon review of [Spenny]’s motion, this [c]ourt undertook further review with the Erie County Adult Probation Department concerning the guideline computations in this case …. After that review, it was discovered that some corrections/modifications had to be made, but they do not work to [Spenny]’s benefit. I will now explain.
[Spenny] has six prior robbery convictions, five that occurred in the state of New York involving financial institutions which have been properly classified as felonies of the second degree for our purposes. In addition, he has a 1986 Arizona conviction for armed[]robbery of a service station which should have been scored as a felony of the first degree, but was scored as a felony of the second degree. Accordingly, he received a benefit to which he was not entitled at the time that the original [PSI] was prepared. Continuing, [Spenny] has a prior 2000 New York conviction for grand larceny that was originally scored as a felony of the
4 We observe that counsel for Spenny failed to include this argument in her 1925(b) statement. See Statement of Matters Complained of on Appeal, 12/23/14, at 2. Although this would typically result in waiver, Pa.R.A.P. 1925(b)(4)(vii), because this issue is raised in an Anders brief and we conclude that the issue is not frivolous, it is not waived. See Pa.R.A.P. 1925(c)(4) (“If, upon review of the Anders[] brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court may remand for the filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or both.”).
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second degree, but should have been scored as a felony of the third degree. The upshot of this is that [Spenny] has six prior convictions which are properly scored as felonies of the second degree. This places him in the RFEL category (repeat felony 1 and felony 2 offender). Therefore, the original computation for the mitigated, standard and aggravated ranges remains unchanged. It follows, then, that [Spenny] is not entitled to relief.
The supplemental [PSI] deviates from the original [PSI] only in these respects: (1) the numerical calculation (but not the result) of the prior record score; and (2) the reference concerning the grand larceny conviction found at the bottom of page [five] of the [PSI]. Although the grand larceny sentence was imposed concurrently to another sentence, it was done so at a separate sentencing proceeding. Therefore, it was properly counted separately.
Trial Court Order, 11/4/14, at 1-2 nn.1-2 (footnote numbers omitted). In
reliance upon these conclusions reached by the trial court and without
citation to any authority, counsel states in her Anders brief that the issue
advanced by Spenny is frivolous. We disagree.
When sentencing a criminal defendant convicted of a felony and/or
misdemeanor, the trial court must consider, inter alia, the sentencing
guidelines adopted by the Pennsylvania Commission on Sentencing.
42 Pa.C.S.A. § 9721(b); 204 Pa. Code 303.1(a). To determine the guideline
sentence for each conviction, the trial court must establish the offense
gravity score and, of relevance to this appeal, the defendant’s prior record
score. 204 Pa. Code § 303.2(a). The prior record score is based upon the
number and type of prior convictions each defendant has on his or her
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criminal record. 204 Pa. Code. § 303.4(a). Each prior conviction is given a
point value ranging between one and four points. See generally 204 Pa.
Code. § 303.7. A higher prior record score yields a higher guideline
sentence, up to a maximum of six points. See generally 204 Pa. Code.
§ 303.16(a). The maximum prior record score is five points. 204 Pa. Code.
§ 303.4(a)(3). Defendants who have prior convictions for first- and second-
degree felonies that total six or more points are separately categorized as
“repeat offenders” or “RFEL,” which further increases the guideline sentence.
204 Pa. Code § 303.4(a)(2); 204 Pa. Code. § 303.16(a).
If a defendant was sentenced for a single conviction at a prior judicial
proceeding, the conviction is counted in the calculation of a defendant’s prior
record score. 204 Pa. Code. § 303.5(a). If there were multiple convictions
arising from a single sentencing proceeding, the most serious offense is
included in the prior record score calculation, as is any other offense for
which the defendant received consecutive sentences. 204 Pa. Code.
§ 303.5(b). Prior convictions for which the trial court ordered the sentences
to run concurrently with the most serious offense are not included in the
calculation of the prior record score. Janda, 14 A.3d at 165.
A prior conviction from another state court, federal court, or foreign
jurisdiction “is scored as a conviction for the current equivalent Pennsylvania
offense.” 204 Pa. Code. § 303.8(f)(1). If there is no current Pennsylvania
equivalent, the trial court must base the grading of the crime on the
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maximum sentence allowed; if the grade of the prior felony conviction is
unknown, it must be treated as an F3. 204 Pa. Code. § 303.8(d)(2), (f)(3).
To determine whether there is an equivalent Pennsylvania offense to the
out-of-state conviction, our Supreme Court has adopted the following test
first announced by this Court in Commonwealth v. Bolden, 532 A.2d 1172
(Pa. Super. 1987):
In assessing the quality of a prior conviction in a foreign jurisdiction, we discern from the purpose and language of the guidelines that it was the intent of the Sentencing Commission as well as the legislature that offense equivalency be considered in terms of the nature and definition of the offense in light of the record of the foreign conviction. This approach requires a sentencing court to carefully review the elements of the foreign offense in terms of the classification of the conduct proscribed, its definition of the offense, and the requirements for culpability. Accordingly, the court may want to discern whether the crime is malum in se or malum prohibitum, or whether the crime is inchoate or specific. If it is a specific crime, the court may look to the subject matter sought to be protected by the statute, e.g. protection of the person or protection of property. It will also be necessary to examine the definition of the conduct or activity proscribed. In doing so, the court should identify the requisite elements of the crime – the actus reus and mens rea – which form the basis of liability.
Having identified these elements of the foreign offense, the court should next turn its attention to the Pennsylvania Crimes Code for the purpose of determining the equivalent Pennsylvania offense. An equivalent offense is that which is substantially identical in nature and definition as the out-of-state or federal offense when compared with Pennsylvania offense. The record of the foreign conviction will be
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relevant also when it is necessary to grade the offense under Pennsylvania law or when there are aggravating circumstances.
Id. at 1175-76 (footnotes omitted); see Commonwealth v. Shaw, 744
A.2d 739, 743 (Pa. 2000); Commonwealth v. Northrip, 985 A.2d 734,
740 (Pa. 2009).5 According to the Bolden Court, “the fundamental inquiry
is to the elements of the offense[.]” Bolden, 532 A.2d at 1177.
Regarding Spenny’s New York convictions, the trial court states that it
counted five of these prior convictions in determining Spenny’s prior record
score when classifying him as a “repeat offender.” Trial Court Order,
11/4/14, at 1 n.1. It further states that “the grand larceny conviction found
at the bottom of page [five] of the [PSI] … was imposed … at a separate
sentencing proceeding,” and therefore “was properly counted separately.”
Id. at 2 n.2. Addressing the latter conclusion first, our review of the record
reveals that “at the bottom of page [five] of the [PSI],” Spenny has two
convictions for grand larceny in the third degree6 in Ontario County, New
York, but nothing in the PSI suggests that he was sentenced at a separate
sentencing proceeding for either of these convictions. See PSI at 5. Rather,
5 Although the test enunciated in Bolden was based upon a prior version of the Code, the relevant language requiring that a prior conviction from another jurisdiction “is scored as a conviction for the current equivalent Pennsylvania offense” remains unchanged in the current, amended version. Compare 204 Pa. Code § 303.7(d) (effective June 5, 1986 to Aug. 12, 1994) with 204 Pa. Code § 303.8(f)(1) (effective Sept. 26, 2014).
6 N.Y. Law §§ 155.35.
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the PSI states that the Ontario County trial court sentenced Spenny to five
counts, including the two grand larceny convictions, at a single sentencing
hearing held on February 23, 2000. Id. Furthermore, the amended PSI has
both grand larceny convictions scored as F3s, and thus, for purposes of
calculating Spenny’s prior record score, neither offense counts towards his
designation as a “repeat offender.” See id.; 204 Pa. Code § 303.4(a)(2).
The record likewise does not support the trial court’s first conclusion –
that five of Spenny’s prior convictions from New York counted towards his
classification as a “repeat offender.” Rather, only four of his New York
convictions could even arguably have been counted in finding that Spenny
was a “repeat offender,” if at all. The PSI states that Spenny was sentenced
in a single judicial proceeding for six convictions in Monroe County, New
York – three for robbery in the third degree7 and three for grand larceny in
the third degree. PSI at 5. He received a sentence of imprisonment for the
first count of robbery and concurrent terms of imprisonment for the
remaining convictions. Id. Thus, this constitutes one prior conviction in
calculating Spenny’s prior record score. Janda, 14 A.3d at 165. This
conviction, graded as an F2 in the PSI, also counted towards Spenny’s
classification as a “repeat offender.” 204 Pa. Code. § 303.4(a)(2).
7 N.Y. Law § 160.05.
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Spenny was convicted of robbery in the third degree and escape after
felony arrest8 in Seneca County, New York, but only the robbery charge was
graded as an F2. PSI at 5. Thus, only one charge counts towards the
calculation of Spenny as a “repeat offender.” 204 Pa. Code § 303.4(a)(2).
Lastly, as stated above, Spenny was sentenced on five convictions in
Ontario County, New York at a single judicial proceeding. His charges
included two counts of robbery in the third degree, both scored as F2s, two
counts of grand larceny in the third degree, scored as F3s, and one count of
attempted robbery in the third degree, graded as an F2. PSI at 5. He
received consecutive sentences for the two F2 robbery convictions and the
F3 grand larceny conviction. Id. Thus, for purposes of calculating Spenny’s
prior record score as a “repeat offender,” there were only two convictions.
204 Pa. Code. §§ 303.4(a)(2), 303.5(b); Janda, 14 A.3d at 165.
Moreover, conducting an element-by-element analysis of the New York
convictions for robbery in the third degree with the Pennsylvania robbery
statute raises a question of the proper grading of those convictions for prior
record score purposes. See Bolden, 532 A.2d at 1175-76, 1177. The trial
court provides no indication as to what offenses it deemed to be
Pennsylvania equivalents for Spenny’s New York convictions. Indeed,
despite the fact that Spenny raised this issue both in his post-sentence
8 N.Y. Law § 205.10.
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motion and on appeal, the trial court does not state what it determined to be
the Pennsylvania equivalent for any of Spenny’s prior convictions.
As we conclude that the appeal is not wholly frivolous, we remand this
case pursuant to Pa.R.A.P. 1925(c)(4) for counsel to file a supplemental
Pa.R.A.P. 1925(b) within twenty-one days of this decision.9 The trial court
shall issue a supplemental 1925(a) opinion within thirty days thereafter.
Counsel for Spenny shall then have forty days from the date of the filing of
the trial court’s supplemental 1925(a) opinion to file an advocate’s brief on
Spenny’s behalf. The Commonwealth shall thereafter file its responsive brief
within thirty days.
Case remanded with instructions. Motion to withdraw denied. Panel
jurisdiction retained.
Strassburger, J. joins the Memorandum.
Ford Elliott, P.J.E. notes her dissent.
9 Pursuant to Rule 1925(c)(4), the trial court may, but is not required to, appoint new counsel to represent Spenny. Pa.R.A.P. 1925(c)(4).
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