Com. v. Figueroa, A. ( 2018 )


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  • J-S27008-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    ANTHONY FIGUEROA                           :
    :
    Appellant               :   No. 1959 EDA 2017
    Appeal from the Judgment of Sentence May 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0002676-2014,
    CP-51-CR-0004149-2012, CP-51-CR-0005488-2014
    BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
    MEMORANDUM BY LAZARUS, J.:                                FILED MAY 21, 2018
    Anthony Figueroa appeals from the judgment of sentence, imposed in
    the Court of Common Pleas of Philadelphia County, following the revocation
    of his probation at multiple bills. Counsel has moved to withdraw pursuant to
    Anders and Santiago.1 Upon review, we affirm and grant counsel’s petition
    to withdraw.
    On July 2, 2012, Figueroa was convicted, in a nonjury trial before the
    Honorable Charles E. Ehrlich, of three violations of the Uniform Firearms Act
    ____________________________________________
    1 Anders v. California, 
    386 U.S. 738
     (1967) and Commonwealth v.
    Santiago, 
    978 A.2d 349
     (Pa. 2009).
    J-S27008-18
    (“2012 case”).2       On August 27, 2012, Judge Ehrlich sentenced him to an
    aggregate sentence of 11½ to 23 months’ imprisonment, followed by a 5-year
    probationary term. This Court affirmed Figueroa’s judgment of sentence, and
    discretionary review was not sought.
    While the 2012 case was pending on direct review, Figueroa was
    arrested on July 24, 2013, and charged with possession of a controlled
    substance3 (“PWID”) and conspiracy4 (“2013 case”). On December 23, 2013,
    Figueroa appeared before Judge Ehrlich for a violation of probation hearing
    with respect to the 2012 case.           Judge Ehrlich ordered that probation be
    continued, directed Figueroa to enroll in school, and ordered him to seek and
    maintain employment.
    On April 22, 2014, Figueroa was again arrested and charged with PWID
    (“2014 case”). On May 28, 2014, Figueroa appeared before Judge Ehrlich on
    the 2013 case and pled guilty to PWID and conspiracy. Judge Ehrlich imposed
    an aggregate, negotiated sentence of 11½ to 23 months’ imprisonment,
    followed by 3 years’ probation.         Figueroa did not appeal this judgment of
    sentence. On that same date, Figueroa also pled guilty before Judge Ehrlich
    ____________________________________________
    2Figueroa was convicted of carrying a firearm without a license, 18 Pa.C.S.A.
    § 6106; carrying a firearm in Philadelphia, 18 Pa.C.S.A. § 6108; and
    possession of a firearm by a prohibited person, 18 Pa.C.S.A. § 6105.
    3   35 P.S. § 780-113(a)(30).
    4   18 Pa.C.S.A. § 903.
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    to PWID in conjunction with the 2014 case. Judge Ehrlich again imposed a
    negotiated sentence of 11½ to 23 months’ imprisonment, followed by 3 years
    of probation.   Also on that date, Judge Ehrlich held a probation violation
    hearing with regard to the 2012 case, after which Figueroa was found to be in
    violation. His probation was revoked as to the 2012 case, and Judge Ehrlich
    imposed a sentence of 11½ to 23 months’ imprisonment, followed by 3 years’
    probation, to be served concurrently to the sentences imposed in the 2013
    and 2014 cases.
    On September 6, 2016, Figueroa was once again arrested and charged
    with PWID (“2016 case”). On May 8, 2017, he appeared before the Honorable
    Stephanie Sawyer and pled guilty. Sentencing was deferred.
    On May 25, 2017, Figueroa again appeared before Judge Ehrlich,
    charged with violating his probation in the 2012, 2013 and 2014 cases. During
    that hearing, Judge Ehrlich stated the following:
    THE COURT: What I don't understand is when I first sentenced
    you – I’m going back to my original notes -- I think the sentence
    I gave you originally was time in to 23 months. You told me you
    had a job with your uncle doing landscaping, going to get your
    GED, and I talked to you about the issues with the juvenile
    supervision. I think Judge Rebstock had to issue a bench warrant
    for you. You went to Glen Mills, from what I remember, and the
    DA was asking for 1½ to 3 years.
    Then comes another possession with intent to deliver case in
    2013, and I resentenced you and kept you in county. Then
    another one in 2014.
    So what I don't understand is: I think people, as Mr. Mincarelli
    says, can benefit from programs, can benefit from being in the
    county prison, a little bit closer supervision and contact with the
    judge. But this is the third time you’ve been back before me on a
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    violation, and it’s the same thing. You were dealing drugs. That’s
    what it is.
    ...
    THE COURT: Also possession with the intent to deliver. What I
    had you on originally was a gun case, a constructive possession
    case, violation of the Uniform Firearms Act.
    So what I don't understand is this: We went through this in 2013,
    in 2014, and now we’re in 2016 and 2017. What is it that you
    didn’t get before?
    I can understand maybe Glen Mills didn’t impress you or whatever
    it was. But I would have thought when you first came in front of
    me and saw the DA asking for 1½ to 3, you might see that we
    were in a different ballgame here, a different place. And then
    comes the other things, so it seems like nothing will stop the drug
    dealing.
    I understand why you’re doing it. You’re doing it for money. It’s
    why most people do. The problem is it puts poison in the
    community. That’s the problem.
    I understand sometimes people do it and then they stop. But you
    had -- this is your fifth PWID, if I'm correct. Two as a juvenile
    and three as an adult, right?
    MS. ROSARIO: Yes.
    THE COURT: I mean, is there something I’m not aware of, Mr.
    Figueroa?
    THE DEFENDANT: I was -- I was doing what I was supposed to do
    at first. But I was out there working. I was doing what I was
    doing. I got my job again. If I go home now, I go straight home
    and go straight to work. I got my uncle that got me my job.
    THE COURT: You told me this before. You were going to go into
    landscaping with your uncle.
    THE DEFENDANT: I got pay stubs and everything, my income tax.
    THE COURT: Then why are you dealing drugs? Why is this the
    fifth drug dealing conviction if you have a job and you have people
    helping you and pay stubs and everything else? You’re paying
    fines and costs, but you're out there drug dealing. You know, at
    some point it sort of has to stop.
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    What was negotiated with Judge Sawyer?
    MR. MINCARELLI: 11½ to 23 plus, I believe, 3 or 4 years. I forget.
    MS. ROSARIO: I think it was actually like 3 to 23 or something
    like that, like a time-in sentence. I spoke with the DA on that case
    who indicated it was a weak case and that was the reason for
    making that offer, and because he had these VOPs in front of Your
    Honor.
    THE COURT: Look, I don't know what’s going to stop it, and I try
    to give people chances, but when we’re on the fifth PWID, I have
    to look at things differently than I did when were [sic] in 2013 and
    2014.
    N.T. Resentencing, 5/25/17, at 9-13.
    After the hearing, Judge Ehrlich found Figueroa to be in violation of his
    probation and revoked him on all three cases. The court sentenced Figueroa
    to an aggregate of 30 to 60 months’ incarceration, followed by 5 years’
    probation. Figueroa filed timely post-sentence motions, which were not ruled
    upon,5 followed by a timely notice of appeal. On June 30, 2017, counsel filed
    a notice of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).
    In order to withdraw pursuant to Anders, counsel must: (1) petition
    the Court for leave to withdraw, certifying that after a thorough review of the
    record, counsel has concluded the issues to be raised are wholly frivolous; (2)
    ____________________________________________
    5  Pursuant to Pa.R.Crim.P. 708(E), the filing of a motion to modify sentence
    imposed after a revocation of probation will not toll the 30-day appeal period,
    unless the trial court expressly grants reconsideration. See Pa.R.Crim.P. 708,
    Comment. Thus, because the deadline to appeal was to expire on or about
    June 24, 2017 and Judge Ehrlich had not yet ruled upon Figueroa’s timely-
    filed motion to modify, counsel filed a notice of appeal on June 20, 2017 in
    order to preserve Figueroa’s appellate rights.
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    file a brief referring to anything in the record that might arguably support an
    appeal; and (3) furnish a copy of the brief to the appellant and advise him of
    his right to obtain new counsel or file a pro se brief raising any additional
    points that the appellant deems worthy of review.          Commonwealth v.
    Hernandez, 
    783 A.2d 784
    , 786 (Pa. Super. 2001). In Commonwealth v.
    Santiago, 
    978 A.2d 349
     (Pa. 2009), the Pennsylvania Supreme Court held
    that, in order to withdraw under Anders, counsel must also state his reasons
    for concluding his client’s appeal is frivolous.
    Instantly, counsel’s petition states that he has made an examination of
    the record and concluded the appeal is wholly frivolous. Counsel indicates
    that he supplied Figueroa with a copy of the brief and a letter explaining his
    right to proceed pro se, or with privately-retained counsel, and to raise any
    other issues he believes might have merit.6 Counsel has also submitted a
    brief, setting out the single issue raised by Figueroa and, pursuant to the
    dictates of Santiago, explains in his petition to withdraw why he believes the
    appeal to be frivolous.       Thus, counsel has substantially complied with the
    requirements for withdrawal.
    Counsel having satisfied the procedural requirements for withdrawal,
    this Court must conduct its own review of the proceedings and render an
    ____________________________________________
    6Figueroa has not submitted any additional or supplemental filings to this
    Court.
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    independent judgment as to whether the appeal is, in fact, wholly frivolous.
    Commonwealth v. Wright, 
    846 A.2d 730
    , 736 (Pa. Super. 2004).
    Figueroa claims that his sentence was manifestly excessive. This claim
    raises a challenge to the discretionary aspects of sentencing. Such a claim
    does not entitle an appellant to review as a matter of right. Commonwealth
    v. Swope, 
    123 A.3d 333
    , 337 (Pa. Super. 2015). Rather, before this Court
    can address such a challenge, an appellant must comply with the following
    requirements:
    An appellant challenging the discretionary aspects of his sentence
    must invoke this Court’s jurisdiction by satisfying a four-part test:
    (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.
    
    Id.,
     quoting Commonwealth v. Allen, 
    24 A.3d 1058
    , 1064 (Pa. Super.
    2011).
    Here, Figueroa filed a post-sentence motion to modify sentence, filed a
    timely appeal, and includes in his brief a statement of reasons in support of
    allowance of appeal pursuant to Pa.R.A.P. 2119(f). Figueroa having complied
    with the procedural requirements, we must now determine if he has raised a
    substantial question for our review.
    The determination of what constitutes a substantial question must
    be evaluated on a case-by-case basis. A substantial question
    exists “only when the appellant advances a colorable argument
    that the sentencing judge’s actions were either: (1) inconsistent
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    with a specific provision of the Sentencing Code; or (2) contrary
    to the fundamental norms which underlie the sentencing process.”
    Commonwealth v. Johnson, 
    125 A.3d 822
    , 826 (Pa. Super. 2015), quoting
    Commonwealth v. Griffin, 
    65 A.3d 932
    , 935 (Pa. Super. 2013) (internal
    citations omitted).
    In his Rule 2119(f) statement, Figueroa asserts that his sentence was
    excessive and that the trial court abused its discretion by failing to order a
    pre-sentence investigation (“PSI”) report prior to imposing sentence. We have
    previously held that a court’s failure to order a PSI upon resentencing raises
    a substantial question. See Commonwealth v. Carrillo-Diaz, 
    64 A.3d 722
    ,
    724 (Pa. Super. 2013). Accordingly, we will review the merits of Figueroa’s
    claim.
    We begin by noting that trial courts enjoy broad discretion with respect
    to sentencing. Commonwealth v. Walls, 
    926 A.2d 957
     (Pa. 2007). The
    court’s sentence will not be disturbed absent a manifest abuse of discretion.
    “An abuse of discretion is more than just an error in judgment and, on appeal,
    the trial court will not be found to have abused its discretion unless the record
    discloses that the judgment exercised was manifestly unreasonable, or the
    result of partiality, prejudice, bias or ill-will.” Commonwealth v. Smith, 
    673 A.2d 893
    , 895 (Pa. 1996), citing Commonwealth v. Lane, 
    424 A.2d 1325
    ,
    1328 (Pa. 1981).
    Under Pennsylvania's Sentencing Code, a trial court must “follow the
    general principle that the sentence imposed should call for confinement that
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    is consistent with the protection of the public, the gravity of the offense as it
    relates to the impact on the life of the victim and on the community, and the
    rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).
    The Pennsylvania Rules of Criminal Procedure vest a sentencing judge
    with the discretion to order a PSI as an aid in imposing an individualized
    sentence. Specifically, Rule 702 provides, in relevant part, the following:
    702. Aids in Imposing Sentence
    (A) Pre-sentence Investigation Report
    (1) The sentencing judge may, in the judge’s discretion,
    order a pre-sentence investigation report in any case.
    (2) The sentencing judge shall place on the record the
    reasons for dispensing with the pre-sentence investigation
    report if the judge fails to order a pre-sentence report in any
    of the following instances:
    (a) when incarceration for one year or more is a
    possible disposition under the applicable sentencing
    statutes[.]
    Pa.R.Crim.P. 702(A). We have previously held that a sentencing judge must
    either order a PSI report or conduct sufficient presentence inquiry such that,
    at a minimum, the court is apprised of the particular circumstances of the
    offense, not limited to those of record, as well as the defendant’s personal
    history and background. Commonwealth v. Goggins, 
    748 A.2d 721
    , 728
    (Pa. Super. 2000) (en banc). Although Rule 702(A)(2) requires the court to
    document the reasons for not ordering a pre-sentence report, this Court has
    held that sentencing courts have some latitude in how this requirement is
    fulfilled. Specifically, “technical noncompliance with the requirements of Rule
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    702(A)(2) might have been rendered harmless had the court elicited sufficient
    information during the colloquy to substitute for a PSI report, thereby allowing
    a fully informed sentencing decision[.]” Commonwealth v. Flowers, 
    950 A.2d 330
    , 333 (Pa. Super. 2008).
    Here, the sentencing court did not state its reasons for dispensing with
    a PSI.     However, the record demonstrates that Judge Ehrlich was well-
    acquainted with Figueroa and his circumstances.        Figueroa first appeared
    before Judge Ehrlich in 2012, when he was convicted of three VUFA charges.
    Prior to sentencing in that case, Judge Ehrlich ordered a PSI. Over the ensuing
    five years, Figueroa appeared before Judge Ehrlich three additional times as
    a result of probationary violations. By the May 2017 resentencing hearing,
    Judge Ehrlich was very familiar with Figueroa and his extensive criminal
    history, noting that Figueroa had five convictions for PWID and that all
    attempts to rehabilitate him had failed. In addition, the record reflects that a
    Gagnon II7 hearing summary was prepared for Judge Ehrlich prior to
    Figueroa’s resentencing, reflecting his most recent violations, a supervision
    summary, and a sentencing recommendation from the department of
    probation.    In sum, we conclude that the trial court possessed more than
    sufficient information about Figueroa’s history and circumstances to enable it
    to arrive at a fully informed, individualized sentencing decision.
    ____________________________________________
    7   Gagnon v. Scarpelli, 
    411 U.S. 778
     (1973).
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    Moreover, given Figueroa’s recidivism and apparent inability to
    rehabilitate, the court was within its discretion to impose the instant sentence
    that is, in any event, far below the statutory maximum.8 The court believed
    that Figueroa was in need of programming only available in a state institution.
    As the court noted:
    I hope the state will focus you differently. I hope when you get
    out, you’ll be different; otherwise, you’ll wind up back in front of
    other judges and you’ll end up spending a good part of your life in
    jail.
    Whatever keeps bringing you to this -- whether it’s job training,
    counseling -- I don’t know what it is. You’ve been through the
    juvenile system, in county prison, all the other programs.
    Hopefully this will focus you.
    N.T. Resentencing, 5/5/17, at 14.
    Accordingly, we can discern no abuse of discretion on the part of the
    trial court in imposing its sentence. Figueroa is entitled to no relief.
    Judgment of sentence affirmed. Petition to withdraw granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/21/18
    ____________________________________________
    8The maximum penalty for PWID is a term of not more than 15 years, or 180
    months. See 35 P.S. § 780-113(f)(1). Figueroa received an aggregate term
    of imprisonment of 30 to 60 months.
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