Com. v. Whitlock, J.

• Court: Superior Court of Pennsylvania
• Decided: June 7, 2023
• Docket: 1077 MDA 2022
• Status: Unpublished

Opinion

J-S06010-23 J-S06011-23 J-S06012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN WHITLOCK : : Appellant : No. 1077 MDA 2022

Appeal from the Judgment of Sentence Entered June 17, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0000319-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN WHITLOCK : : Appellant : No. 1080 MDA 2022

Appeal from the Judgment of Sentence Entered June 17, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0001300-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN S. WHITLOCK : : Appellant : No. 1081 MDA 2022

Appeal from the Judgment of Sentence Entered June 17, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0001368-2021 J-S06010-23 J-S06011-23 S-S06012-23

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED: JUNE 7, 2023

Appellant John Whitlock appeals from the June 17, 2022 judgments of

sentence entered in the Court of Common Pleas of Lackawanna County (“trial

court”), following his guilty pleas at three unrelated dockets. His counsel has

filed briefs and applications to withdraw pursuant to Anders v. California,

386 U.S. 738 (1969), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009) at each of the above-reference dockets. Upon review, we affirm the

judgments of sentence and grant counsel’s applications to withdraw.

The facts and procedural history of this case are undisputed. Briefly,1

in connection with the theft of catalytic converters, on October 7, 2021,

Appellant pleaded guilty to theft by unlawful taking—movable property,2 at

docket 1300-2021, and defiant trespass3 at docket 1368-2021. At the time,

Appellant was being held at Lackawanna County Prison and was willing to

participate in substance abuse treatment. On December 6, 2021, the trial

court granted Appellant’s petition for release from incarceration for treatment

of addiction/mental health conditions. Setting an unsecured bail in the

amount of $10,000.00, the trial court directed that Appellant be transported ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 We observe that Appellant was on parole in an unrelated case at the time he committed the crimes at issue. Although we need not detail his extensive criminal history for purposes of this appeal, the trial court aptly recounts it in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 11/15/22, at 1-7. 2 18 Pa.C.S.A. § 3921(a). 3 18 Pa.C.S.A. § 3503(b)(1)(ii).

-2- J-S06010-23 J-S06011-23 S-S06012-23

to Pyramid Hillside for treatment. Later, Appellant, however, left the

treatment center against medical advice and failed to report to the

Lackawanna County Prison as ordered. A warrant for his arrest was issued.

During the time Appellant absconded from treatment at Pyramid

Hillside, he was charged with multiple additional crimes at docket 319-2022

relating to theft of catalytic converters. Ultimately, on June 7, 2022, Appellant

pleaded guilty to another count of theft by unlawful taking—movable

property—at docket 319-2022. On June 17, 2022, the trial court sentenced

Appellant to, inter alia, 12 to 26 months’ incarceration at docket 1300-2021,

9 to 24 months in prison at 1368-2021, and 16 to 36 months’ incarceration at

319-2022.4 The sentences imposed are in the standard range.

Appellant moved for reconsideration of sentences on June 27, 2022,

challenging the discretionary aspects thereof. In particular, Appellant claimed

that the trial court failed to properly address “his serious mental health

concerns.” Reconsideration Motion, 6/27/22, at 3. On July 5, 2022, the trial

court denied the reconsideration motions. Appellant timely appealed. The

trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of matters

complained of on appeal. Appellant complied, challenging only the

discretionary aspects of his sentences. In response, the trial court issued a

detailed Rule 1925(a) opinion.

____________________________________________

4The sentences are consecutive to each other and to sentences imposed in unrelated dockets that are not at issue herein.

-3- J-S06010-23 J-S06011-23 S-S06012-23

On December 28, 2022, Appellant’s counsel filed in this Court

applications to withdraw as counsel at the above-referenced dockets and filed

Anders briefs, wherein counsel asserted that the trial court abused its

discretion in imposing “a harsh and excessive sentence by failing to take into

consideration Appellant’s mental health and drug addiction issues and the fact

that his present offense[s were] not a crime of violence.” Anders Brief at 4

(docket 1300-2021).

When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

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

2007) (en banc). It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 1) petition the

court for leave to withdraw stating that, after making a conscientious

examination of the record, counsel has determined that the appeal would be

frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

Instantly, counsel’s applications to withdraw from representation

provide that counsel reviewed the record and concluded that the respective

appeals are frivolous. Furthermore, counsel notified Appellant that she was

-4- J-S06010-23 J-S06011-23 S-S06012-23

seeking permission to withdraw and provided Appellant with copies of the

applications to withdraw and her Anders briefs. Counsel also advised

Appellant of his right to retain new counsel, proceed pro se, or raise any

additional points he deems worthy of this Court’s attention. Accordingly, we

conclude that counsel has satisfied the procedural requirements of Anders.

We next must determine whether counsel’s Anders briefs comply with

the substantive requirements of Santiago, wherein our Supreme 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.

Santiago, 978 A.2d at 361. Here, our review of counsel’s briefs indicates

that she has complied with the briefing requirements of Santiago. We,

therefore, conclude that counsel has satisfied the minimum requirements of

Anders/Santiago.

Once counsel has met her 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.” Santiago, 978 A.2d at 355 n.5. Thus, we now

turn to the merits of Appellant’s appeal.

-5- J-S06010-23 J-S06011-23 S-S06012-23

Appellant’s sole issue before us implicates the discretionary aspects of

his sentence. See Commonwealth v. Weir, 239 A.3d 25, 38 (Pa. 2020)

(explaining that a challenge to the amount of restitution based on evidence

presented by the Commonwealth is a challenge to the discretionary aspects

of sentencing). It is well-settled that “[t]he right to appeal a discretionary

aspect of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d

1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

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

932 A.2d 155, 162 (Pa. Super. 2007). As we stated 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 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001), appeal denied, 796 A.2d 979 (Pa. 2002).

-6- J-S06010-23 J-S06011-23 S-S06012-23

Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his briefs.5 We, therefore, must determine only if

Appellant’s sentencing issues raise a substantial question.

The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007). We have found that a substantial question exists

“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.” Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa.

2009). “[W]e cannot look beyond the statement of questions presented and

the prefatory [Rule] 2119(f) statement to determine whether a substantial

question exists.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super.

2013), affirmed, 125 A.3d 394 (Pa. 2015).

It is settled that this Court does not accept bald assertions of sentencing

errors. See Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.

5 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

-7- J-S06010-23 J-S06011-23 S-S06012-23

2006). When we examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists, “[o]ur 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. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).

A Rule 2119(f) statement is inadequate when it “contains incantations of

statutory provisions and pronouncements of conclusions of law[.]”

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation

omitted).

Here, as indicated, Appellant essentially asserts in his Rule 2119(f)

statement that the trial court abused its discretion in failing to consider

mitigating factors, such as “his addiction and mental health issues.”

Appellant’s Brief at 10. Based on his 2119(f) statements, we conclude that

Appellant has failed to raise a substantial question.

As noted, Appellant’s discretionary claim principally is premised on his

argument that the trial court failed to consider his mitigating circumstances.

In this regard, we have “held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.

Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010)); see also Commonwealth v. Berry, 785 A.2d 994 (Pa. Super.

-8- J-S06010-23 J-S06011-23 S-S06012-23

2001) (explaining allegation that sentencing court failed to consider certain

mitigating factor generally does not raise a substantial question);

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995)

(“[a]n allegation that a sentencing [judge] ‘failed to consider’ or ‘did not

adequately consider’ certain factors does not raise a substantial question that

the sentence was inappropriate,”), appeal denied, 676 A.2d 1195 (Pa.

1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997)

(finding absence of substantial question where appellant argued the trial court

failed to adequately consider mitigating factors and to impose an

individualized sentence). Consistent with the foregoing cases, we conclude

that Appellant failed to raise a substantial question with respect to his

sentencing claim premised on inadequate consideration of mitigating factors.

Even if we were to find a substantial question, Appellant still would not

be entitled to relief. It is well-settled that “[w]here[, as here,] the sentencing

court had the benefit of a presentence investigation (‘PSI’), we can assume

the sentencing court ‘was aware of relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.’” Moury, 992 A.2d at 171. Indeed, our review of the

sentencing transcript reveals that the trial court heard testimony and

argument concerning Appellant’s mitigating circumstances and considered the

same in crafting his sentence. See N.T., Sentencing, 6/17/22, at 3-4, 6-10.

Accordingly, Appellant’s sentencing claim based on insufficient consideration

-9- J-S06010-23 J-S06011-23 S-S06012-23

of mitigating factors lacks merit. The trial court, therefore, did not abuse its

discretion.

Furthermore, to the extent Appellant challenges his respective

sentences on the basis that they are “harsh and excessive,” the challenge is

waived, as the Commonwealth argues, because he did not preserve it for our

review by failing to raise it before the trial court at sentencing or in the post-

sentence motion. See Pa.R.Crim.P. 720(A)(1); see also Commonwealth v.

Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (holding objections to

discretionary aspects of sentence are generally waived if not raised at

sentencing or preserved in a post-sentence motion); accord

Commonwealth v. Reeves, 778 A.2d 691, 692-93 (Pa. Super. 2001) (failure

to raise specific claim regarding imposition of sentence in post-sentence

motion deprived trial court opportunity to consider it and, thus, claim waived

on appeal). In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super.

2013), we explained that “issues 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.” Cartrette, 83

A.3d at 1042 (citation omitted). Additionally, Appellant may not raise this

challenge for the first time on appeal. See Pa.R.A.P. 302(a) (“Issues not

raised in the trial court are waived and cannot be raised for the first time on

appeal.”). Accordingly, Appellant is not entitled to relief.

- 10 - J-S06010-23 J-S06011-23 S-S06012-23

Based upon our independent review of the record, as detailed above, we

agree with counsel that Appellant has not raised any non-frivolous matters

herein. We, therefore, affirm the judgments of sentence and grant counsel’s

applications to withdraw.

Judgments of sentence affirmed. Applications to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/7/2023

- 11 -