Com. v. Stewart, J., Jr.

• Court: Superior Court of Pennsylvania
• Decided: April 29, 2016
• Docket: 1332 MDA 2015
• Status: Unpublished

Opinion

J-S27039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES ALLEN STEWART, JR.,

Appellant No. 1332 MDA 2015

Appeal from the Judgment of Sentence July 21, 2015 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000234-2007

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 29, 2016

This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Adams County, which imposed a probation revocation

sentence—Appellant’s third on the underlying offense of Conspiracy to

Commit Burglary—of one to three years’ incarceration. Appellant contends

that the sentence was excessive and represents an abuse of the court’s

sentencing discretion. In addition, Appellant's counsel seeks to withdraw

from representation pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon

review, we affirm judgment of sentence and grant counsel's petition to

withdraw.

In 2007, Appellant entered a negotiated guilty plea to Conspiracy to

Commit Burglary, and the court sentenced him to serve three months to 23

months in the Adams County Adult Correctional Complex. For his first

*Former Justice specially assigned to the Superior Court. J-S27039-16

revocation of probation occurring on December 27, 2012, he was sentenced

to serve 36 months of Intermediate Punishment, with six months in a

restrictive setting and the remainder on probation. For his second

revocation occurring on June 27, 2013, Appellant again acknowledged his

violations and received a revocation sentence of 36 months of Intermediate

Punishment, with six months in the re-entry facility, three months on house

arrest, and the remainder on probation.

For this, his third revocation occurring on July 21, 2015, Appellant

acknowledged missing one scheduled appointment with the Probation

Office.1 The court accepted Appellant’s acknowledgement of having missed

at least one appointment and proceeded with sentencing. N.T. at 5. The

Commonwealth’s recommendation was no less than one-and-one-half to

three years’ incarceration. N.T. at 2, 5. As noted, supra, the court imposed

a revocation sentence of one to three years’ incarceration in a state

correction institution. Appellant timely filed this direct appeal.

As a preliminary matter, we address counsel's petition to withdraw.

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (quoting

Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997)) (“When ____________________________________________

1 The probation officer alleged Appellant had missed a total of six appointments with York County Probation and Adams County Probation over a span of 15 months. Just one month prior to missing his final two appointments, Appellant had signed a written warning, dated May 8, 2015, agreeing to attend all scheduled office appointments. N.T., 7/21/15, at 4-5; C.R. #82 “Motion for Revocation,” dated June 26, 2015.

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faced with a purported Anders brief, this Court may not review the merits of

the underlying issues without first passing on the request to withdraw.”).

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 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.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa.Super. 2007)

(citations omitted). Our Supreme Court has expounded further upon the

requirements of Anders:

in 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

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on point that have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Our examination of counsel's petition to withdraw and his Anders brief

leads us to conclude that counsel has substantially complied with the above

requirements.2 Once “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.’” Commonwealth v. Flowers, 113 A.3d

1246, 1248 (Pa.Super. 2015) (quoting Santiago, 978 A.2d at 354 n. 5).

In his brief, Appellant's counsel states one issue that might arguably

support an appeal: “Did the trial court err in sentencing the Appellant to

serve no less than one (1) nor more than three (3) years in a state

correctional institution for his third revocation of sentence imposed for his

conviction of Criminal Conspiracy to Commit Burglary [18 Pa.C.S.A. §

903(a)(1)]” Anders brief at 4. This issue implicates the discretionary

aspects of Appellant's sentence, which is reviewable by this Court in the

revocation setting. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super.

2013) (en banc).

Where an appellant challenges the discretionary aspects of a sentence,

there is no automatic right to appeal, and an appellant's appeal should be

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2 Appellant has not responded to counsel’s petition to withdraw.

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considered a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155, 163 (Pa.Super. 2007). As we observed in Commonwealth

v. Moury, 992 A.2d 162 (Pa.Super. 2010):

An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:

[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 Pa.R.Crim.P. [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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super.

2006)).

Moreover, our standard of review pertaining to revocation sentences is

as follows: In general, the imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). . . . Once probation has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist: (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 court. 42 Pa.C.S.A. § 9771(c); Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).

Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa.Super. 2006).

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Instantly, it appears that Appellant has waived his discretionary

aspects of sentencing claim for failing to preserve it at sentencing or in a

post-sentence motion pursuant to Rule 720. See Commonwealth v.

Shugars, 895 A.2d 1270, 1273–74 (Pa.Super. 2006) (quoting

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005) (“[I]ssues

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

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

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

aspect of a sentence is waived.”).

Assuming arguendo that the issue is preserved, however, we conclude

that Appellant is not entitled to relief. The Anders brief includes a Rule

2119(f) statement, wherein Appellant claims that his one to three year

revocation sentence—his third revocation sentence—for his conviction of

Criminal Conspiracy to Commit Burglary was “excessive” and a product of

the court’s “abuse of discretion.” Anders brief at 16.

“The determination of whether a substantial question exists must be

determined on a case-by-case basis.” Commonwealth v. Hartman, 908

A.2d 316, 320 (Pa.Super. 2006) (citation omitted). This Court has explained

that: “[a] substantial question exists where an 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.” Id.

(quoting Commonwealth v. Koren, 646 A.2d 1205, 1208 (Pa.Super.

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1994)). “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Commonwealth v. Goggins, 748

A.2d 721, 726 (Pa.Super. 2000) (en banc) (emphasis in original).

A claim of a harsh or excessive sentence can, at times, raise a

substantial question. See Commonwealth v. Kalichak, 943 A.2d 285, 292

(Pa.Super. 2008). However, this is not such a case, as the Anders brief

baldly asserts that Appellant’s sentence is “excessive” without providing any

reason to support the assertion. Such a bald assertion of sentence

excessiveness does not raise a substantial question. See Commonwealth

v. Trippett, 932 A.2d 188 (Pa.Super. 2007). Nevertheless, our review of

the record reveals no indication that Appellant’s sentence was excessive or

disproportionate to his violations. The court acknowledged that this was

Appellant’s third revocation of probation and that he served county jail time

and house arrest in his prior two revocation sentences. To the probation

officer’s report citing a string of missed appointments, Appellant provided

excuses and explanations to all except one. In this respect , the court was

in the best position to evaluate Appellant’s character, demeanor, and

whether he exhibited a defiant or indifferent attitude. The underlying

offense of Conspiracy to Commit burglary, moreover, carried a possible

maximum sentence of twenty years’ incarceration.

Based on this record, we discern no indication that the court based its

sentence on partiality, prejudice, bias or ill will. The court was familiar with

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Appellant’s history, and reasonably determined that a sentence of

incarceration at this point was necessary to vindicate the authority of the

court. Accordingly, there is no basis upon which to conclude that the

sentence was excessive or disproportionate. Appellant’s issue challenging

the discretionary aspects of his sentence is, therefore, wholly frivolous.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/2016

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