Com. v. Thomas, R., III

• Court: Superior Court of Pennsylvania
• Decided: October 16, 2017
• Docket: 765 MDA 2017
• Status: Unpublished

Opinion

J-S64024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RICHARD FILMORE THOMAS, III,

Appellant No. 765 MDA 2017

Appeal from the Judgment of Sentence April 17, 2017 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0001300-2016

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 16, 2017

Appellant, Richard Filmore Thomas, III, appeals from the judgment of

sentence entered on April 17, 2017, following his guilty plea to burglary, 18

Pa.C.S. § 3502(a)(4). Appellate counsel has filed a petition to withdraw

representation and a brief pursuant to Anders v. California, 386 U.S. 738

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

review, we grant counsel’s petition to withdraw, and we affirm the judgment

of sentence.

We turn to the relevant affidavit of probable cause sworn by

Pennsylvania State Trooper Damian F. Moran for the factual history:

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S64024-17

On 06/14/16 [Pennsylvania State Trooper] Michael Fortley and I were working in full uniform . . . . At approx. 0249hrs[.] I was dispatched to . . . Adams County for a report of a person caught rifling through the office in the outbuilding.

Upon arrival I spoke with Jared Tyler HECKENLUBER at that time he related he was outside of his house, at approx. 0230hrs. . . . when he saw a flashlight on in the barn and went in to investigate who was in there. HECKENLUBER said none of the doors on their property are regularly locked and this building was no exception. When he got inside he found [Appellant] walking around upstairs in the building, [Appellant] was wearing a long sleeve shirt, jeans and had on gloves with a flashlight in one hand, there was also a black trash bag sticking out of his back pocket. HECKENLUBER said he knew [Appellant] from high school and was able to positively identify him through a picture on the computer terminal I showed him.

While I was investigating the scene I observed several piles of power tools in different locations of the building, a pile of hand tools with a spool of copper wire, a pile of drill bits, a .22 [caliber] rifle and a black garbage bag filled with other items. HECKENLUBER told me all of the above mentioned items had been taken from different locations in the building and placed into these piles. HECKENLUBER said a set of keys, which unlock all of the buildings on the property, was taken from the desk lap drawer. HECKENLUBER said he estimated the value of all the items that would have been stolen was over $1000.

Affidavit of Probable Cause, 6/24/16, at 1.

On January 17, 2017, Appellant entered an open guilty plea to

burglary graded as a second-degree felony. Following a presentence

investigation (“PSI”), the common pleas court sentenced Appellant on April

17, 2017, to twenty-one to sixty months of imprisonment. Appellant filed a

post-sentence motion on April 26, 2017, which the trial court denied on April

26, 2017. This timely appeal followed.

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On May 10, 2017, the trial court ordered the filing of a concise

statement of matters complained of on appeal. Counsel timely filed a

statement indicating that he intended to seek to withdraw pursuant to

Anders.1 See Pa.R.A.P. 1925(c)(4) (“In a criminal case, counsel may file of

record and serve on the judge a statement of intent to file an

Anders/McClendon brief in lieu of filing a Statement.”). On June 6, 2017,

the trial court filed a statement in which it advised that it would not file an

opinion due to counsel’s intention to seek to withdraw representation.

Before we address the question raised on appeal in the Anders brief,

we must resolve appellate counsel’s request to withdraw. Commonwealth

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

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

“When 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.”).

There are procedural and briefing requirements imposed upon an

attorney who seeks to withdraw on appeal. The procedural mandates are

that counsel must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has ____________________________________________

1 Anders sets forth the requirements for counsel to withdraw from representation on direct appeal. See also Santiago, 978 A.2d 349 (applying Anders in state court).

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determined that the appeal would be frivolous; 2) furnish a copy of the brief to [his client]; and 3) advise [his client] that he or she has the right to retain private counsel or raise additional arguments that the [client] deems worthy of the court’s attention.

Cartrette, 83 A.3d at 1032 (citation omitted).

In addition, our Supreme Court, in Santiago, stated that an Anders

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.

Appellant’s counsel has complied with the first prong of Santiago by

providing a summary of the procedural history in the Anders brief. He has

satisfied the second prong by referring to any evidence in the record that he

believes arguably supports the appeal. Counsel also set forth his conclusion

that the appeal is frivolous and stated his reasons for that conclusion, with

appropriate support. Moreover, counsel filed a separate motion to withdraw

as counsel, wherein he stated that he examined the record and concluded

that the appeal is wholly frivolous. Further, counsel has attempted to

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identify and develop any issues in support of Appellant’s appeal.

Additionally, counsel sent a letter to Appellant, and he attached a copy of

the letter to his Anders Brief. In the letter counsel stated that he informed

Appellant that he has filed an Anders brief, and he apprised Appellant of his

rights in light of the motion to withdraw as counsel. Appellant has not filed

any response to counsel’s motion to withdraw.

Based on the foregoing, we conclude that the procedural and briefing

requirements of Anders and Santiago for withdrawal have been met.

Therefore, we now have the responsibility to make an independent judgment

regarding whether the appeal is in fact wholly frivolous. Commonwealth v.

Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016).

In the Anders brief, counsel presents the following issue for our

review:

Whether the lower court abused its discretion in sentencing Appellant to an aggravated range of 21 to 60 months in state prison.

Anders Brief at 6.

This issue presents a challenge to the discretionary aspects of

Appellant’s sentence. Challenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right, and his challenge in this

regard is properly viewed as a petition for allowance of appeal. See 42

Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987); Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000). An

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appellant challenging the discretionary aspects of his sentence must satisfy a

four-part test. We evaluate: (1) whether Appellant filed a timely notice of

appeal; (2) whether Appellant preserved the issue at sentencing or in a

motion to reconsider and modify sentence; (3) whether Appellant’s brief

includes a concise statement of the reasons relied upon for allowance of

appeal; and (4) whether the concise statement raises a substantial question

that the sentence is appropriate under the Sentencing Code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013). An

appellant must articulate the reasons the sentencing court’s actions violated

the sentencing code. Commonwealth v. Moury, 992 A.2d 162 (Pa. Super.

2010); Sierra, 752 A.2d at 912–913.

In the instant case, Appellant filed a timely appeal, the issue was

properly preserved in his post-sentence motion, and the Anders brief

contains a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspects of a sentence pursuant to

Pa.R.A.P. 2119(f). Accordingly, we must determine whether Appellant has

raised a substantial question that the sentence is not appropriate under 42

Pa.C.S. § 9781(b). Moury, 992 A.2d at 170.

Whether a particular issue constitutes a substantial question about the

appropriateness of sentence is a question we evaluate on a case-by-case

basis. Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017). As

to what constitutes a substantial question, this Court does not accept bald

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assertions of sentencing errors; an appellant must articulate the reasons the

sentencing court’s actions violated the sentencing code. Commonwealth v.

Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).

In his Pa.R.A.P. 2119(f) statement asserting that his sentence was

excessive, Appellant lists eight purported mitigating factors that compelled

the court to impose “a lower sentence.” Anders Brief at 10. The trial court

noted Appellant had a prior record score of five and an offense gravity score

of five. Sentencing Order, 4/18/17. The standard Guidelines range was “12

to 18” months “with an aggravated range of plus three.” Id.

A claim that the trial court failed to consider mitigating factors in

sentencing generally does not raise a substantial question.

Commonwealth v. Rhoades, 8 A.3d 912, 918–919 (Pa. Super. 2010).

See Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008)

(claim that court failed to consider mitigating factors in imposing consecutive

sentences did not raise substantial question); Commonwealth v. Bullock,

868 A.2d 516, 529 (Pa. Super. 2005) (where no specific provision of

sentencing code or fundamental norm is identified in claim that court failed

to consider mitigating factors, no substantial question raised). Here,

Appellant complains the trial court failed to consider mitigating factors; this

issue does not raise a substantial question.

Even if it raised a substantial question, the issue lacks merit. In the

sentencing order, the court indicated it received and reviewed the PSI

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report. Order, 4/17/17. Additionally, the court entertained comment from

both Appellant and his mother, who reiterated the mitigating factors

Appellant now states were ignored. N.T. (Sentencing), 4/17/17, at 3–5. We

assume, when a sentencing court was provided a PSI report, that the trial

court was aware of the relevant information regarding the defendant’s

character and weighed that information with other relevant mitigating

factors. Rhoades, 8 A.3d at 919. Accordingly, Appellant’s claim has no

merit.

We have independently reviewed the record in order to determine if

counsel’s assessment about the frivolous nature of the present appeal is

correct. Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (after determining that counsel has satisfied the technical

requirements of Anders and Santiago, this Court must conduct an

independent review of the record to determine if there are additional, non-

frivolous issues overlooked by counsel). After review of the issues raised by

counsel and our independent review of the record, we conclude that an

appeal in this matter is frivolous. Accordingly, we grant counsel’s petition to

withdraw and affirm the judgment of sentence.

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Petition to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/16/2017

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