Com. v. Stallsmith, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RANDY SCOTT STALLSMITH
Appellant No. 828 WDA 2016
Appeal from the Judgment of Sentence May 17, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000161-2016
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 10, 2017
Randy Scott Stallsmith appeals from the judgment of sentence of three
to six months incarceration following his guilty plea to one count of driving
under a suspended license, his twenty-second offense of that nature.
Counsel has filed a petition to withdraw pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.3d 349 (Pa.
2009). We grant counsel’s petition and affirm.
The record reveals the following. On November 6, 2015, Appellant
was issued a citation for driving without a valid Pennsylvania registration,
driving without proof of financial responsibility, and driving with a suspended
license – habitual offender. On May 4, 2016, Appellant signed a statement
acknowledging his rights and indicating that he understood the potential
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sentence for the charges he faced, including thirty-days to six-months
incarceration for driving with a suspended license. He entered an open
guilty plea to one count of driving with a suspended license, his twenty-
second offense. The court conducted the mandated colloquy, accepted
Appellant’s plea, and nolle prossed the remaining charges.
On May 17, 2016, the court held a sentencing hearing. At that
hearing, the court reviewed Appellant’s extensive criminal history and heard
testimony in support of Appellant’s character and willingness to change. The
court emphasized that Appellant had twenty-one prior offenses for driving
with a suspended license. As a result, the court imposed a guideline range
sentence of three months to six months incarceration. The court then
denied Appellant’s entreaty for work release.
Appellant filed a timely motion for reconsideration requesting that the
court modify his sentence to permit work release. The court denied
Appellant’s motion, and Appellant filed a timely notice of appeal. In
response to the court’s order to file a Rule 1925(b) statement of errors
complained of on appeal, counsel noted her intent to seek to withdraw on
appeal pursuant to Anders, supra. Before we can proceed to the merits of
the issues raised herein, we first must address counsel’s request to
withdraw. In order to withdraw during direct appeal,
First, counsel must petition the court for leave to withdraw and
state that after making a conscientious examination of the
record, she has determined that the appeal is frivolous; second,
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she must file a brief referring to any issues in the record of
arguable merit; and third, she must furnish a copy of the brief to
the defendant and advise him of his right to retain new counsel
or to himself raise any additional points he deems worth of the
Superior Court’s attention.
Santiago, supra at 351. In Santiago, the Court outlined the following
specific requirements for an Anders brief:
[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 arguable 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.
Id. at 361. Once counsel has satisfied the above requirements:
The court – not counsel – then proceeds, after a full
examination of all the proceedings, to decide whether the case
is wholly frivolous. If it so finds it may grant counsel’s request
to withdraw and dismiss the appeal insofar as federal
requirements are concerned, or proceed to a decision on the
merits, if state law so requires. On the other hand, if it finds
any of the legal points arguable on their merits (and therefore
not frivolous) it must, prior to decision, afford the indigent the
assistance of counsel to argue the appeal.
Id. at 354 (quoting Anders, supra at 744).
In her petition to withdraw, counsel averred that she reviewed the
record and relevant case law and believed that were no non-frivolous issues
to be raised on appeal. Counsel also filed with this Court a brief raising one
issue she felt might arguably support the present appeal. Counsel notified
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Appellant of her request to withdraw and provided a copy of the brief and
petition to withdraw. Counsel advised Appellant that he had a right to retain
private counsel or proceed pro se to submit any additional arguments to this
Court. Hence, counsel has complied with the procedural mandates of
Anders/Santiago.
We turn now to counsel’s Anders brief. Counsel’s brief sets forth the
complete factual and procedural summary of Appellant’s case, with citation
to his plea hearing. Counsel included the mandated statement pursuant to
Pa.R.A.P. 2119(f) and presented one issue that she believes might arguably
support this appeal. Counsel set forth that issue as follows: “Was the
sentence in this case manifestly excessive and clearly unreasonable, and not
individualized as required by law?” Appellant’s brief at 1. After a review of
the relevant case law, counsel concluded this issue lacked merit.
Appellant’s issue assails the discretionary aspects of his sentence. At
the outset, we are mindful of our standard of review: “[s]entencing is a
matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse of
discretion.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super.
2014) (citation omitted). We observe that “the right to appellate review of
the discretionary aspects of a sentence is not absolute, and must be
considered as a petition for permission to appeal.” Id. In order to invoke
this Court’s jurisdiction:
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[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the
issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant’s brief
has a fatal defect; and (4) whether there is a substantial
question that the sentence appeal from is not appropriate under
the Sentencing Code.
Id.Appellant contends that his sentence was manifestly excessive and
clearly unreasonable since the court did not grant him work release as a
condition of his sentence. In addition, he maintains that he should have
received a lighter sentence since he took responsibility for his actions,
expressed remorse, and presented testimony supporting him. Thus,
Appellant concludes that his sentencing was not appropriate under the
sentencing codes.
As noted above, there is no absolute right to an appeal to the
discretionary aspects of a person’s sentence. Rather, an “[a]ppeal is
permitted only after this Court determines that there is a substantial
question that the sentence was not appropriate under the sentencing code.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citation
omitted). Generally, whether an issue raises a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Swope, 123 A.3d
333, 338 (Pa.Super. 2015). Moreover,
A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
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Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Id.In determining whether a substantial question exists as to the
excessiveness of a sentence, we do not examine the merits of whether the
sentence is excessive, but rather, “we look to whether the appellant has
forwarded a plausible argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.” Dodge, supra at 1260.
Instantly, the trial court reviewed Appellant’s extensive criminal
history, and heard testimony from Appellant and from witnesses supporting
Appellant. Upon hearing this testimony, including statements as to
Appellant’s remorse, the court curbed Appellant’s sentence for a conviction
unrelated to this matter. N.T. Sentencing, 5/17/16, at 20. With regard to
this conviction, the court emphasized that Appellant had twenty-one
previous citations for driving with a suspended license, and determined that
Appellant’s history provided no indication that his aberrant conduct would
cease. As such, it sentenced Appellant to a standard range sentence of
three-months to sixth months incarceration for that offense and denied his
request for work release. We find that Appellant has not advanced a
plausible argument that his sentence is clearly unreasonable, and hence, he
has not presented a substantial question for our review.
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After an independent review of the record, we concur with counsel’s
assessment that this appeal is wholly frivolous and that there are no
preserved issues that could arguably support this appeal. Thus, we conclude
that counsel may withdraw.
Petition of Tina M. Fryling, Esquire, to withdraw as counsel is granted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
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