Com. v. Aponte v. Jr. ( 2016 )

J-S53035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VICTOR A. APONTE, JR.
Appellant No. 167 MDA 2016
Appeal from the Judgment of Sentence December 22, 2015
in the Court of Common Pleas of Berks County Criminal Division
at No(s):CP-06-CR-0005964-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VICTOR A. APONTE, JR.
Appellant No. 168 MDA 2016
Appeal from the Judgment of Sentence December 22, 2015
in the Court of Common Pleas of Berks County Criminal Division
at No(s):CP-06-CR-0005965-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VICTOR A. APONTE, JR.
Appellant No. 169 MDA 2016
Appeal from the Judgment of Sentence December 22, 2015
in the Court of Common Pleas of Berks County Criminal Division
at No(s):CP-06-CR-0005966-2014
J-S53035-16
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VICTOR A. APONTE, JR.
Appellant No. 170 MDA 2016
Appeal from the Judgment of Sentence December 22, 2015
in the Court of Common Pleas of Berks County Criminal Division
at No(s):CP-06-CR-0005968-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VICTOR A. APONTE, JR.
Appellant No. 171 MDA 2016
Appeal from the Judgment of Sentence December 22, 2015
in the Court of Common Pleas of Berks County Criminal Division
at No(s):CP-06-CR-0005971-2014
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 09, 2016
Appellant, Victor A. Aponte, Jr., appeals from the judgment of
sentence entered in the Berks County Court of Common Pleas after he
pleaded guilty to four counts of delivering a controlled substance and one
count of theft graded as a felony of the third degree.1 Appellant’s counsel
has filed a petition to withdraw from representation and an
*
Former Justice specially assigned to the Superior Court.
1
See 18 Pa.C.S. §§ 3903(a.1), 3921(a); 35 P.S. § 780-113(a)(30).
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Anders/Santiago2 brief. We deny the petition to withdraw and remand this
case with instructions.
The Commonwealth recited the factual bases of Appellant’s pleas at
the December 22, 2015 guilty plea hearing, and the following exchanges
with Appellant occurred:
[Commonwealth:] By pleading guilty, regarding
Information 5965 of 2014, do you admit on or about
various dates and times between June 23rd, 2014 and
June 30th, 2014 you were at the Silk Mill Apartment here
in Berks County, Pennsylvania, you stole copper as well as
air-conditioning coils from the Northeast Middle School and
sold that without license or authorization to do so?
[Appellant:] Yes.
[Commonwealth:] Regarding Information 5964 of 2014, do
you admit on or about September 18th, 2014, you
delivered .34 grams of heroin, a Schedule I controlled
substance, to an undercover police officer in the 800 block
of Penn Street, Reading, Berks County, Pennsylvania,
without a license or without authorization to do so?
[Appellant:] Yes.
[Commonwealth:] Regarding Information 5966 of 2014, do
you admit on or about October 14, 2014 in the 800 block
of Penn Street, Reading, Berks County, Pennsylvania, you
delivered 0.2 grams of heroin[,] a Schedule I controlled
substance, to an undercover police officer without license
or authorization to do so?
[Appellant:] Yes.
2
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); see also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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[Commonwealth:] Regarding Information 5968 of 2014, do
you admit on or about September 2nd, 2014, in the 800
block of Penn Street, Reading, Berks County,
Pennsylvania, you delivered .23 grams of heroin, Schedule
I controlled substance, to an undercover officer without
license or authorization to do so?
[Appellant:] Yes.
[Commonwealth] Regarding Information 5971 of 2014, do
you admit on or about October 28th, 2014, you delivered
approximately 2.1 grams of heroin[,] a Schedule I
controlled substance, to an undercover police officer
without license or authorization to do so?
[Appellant:] Yes.
N.T. Guilty Plea & Sentence H’rg, 12/22/15, at 5-7. The Commonwealth
agreed to dismiss related charges in each information, but there was no
agreement as to sentencing.
The trial court accepted Appellant’s guilty pleas and immediately
proceeded to sentencing with the benefit of a presentence investigation
report. The court ordered Appellant to serve four concurrent terms of two to
five years’ imprisonment for each drug delivery. The court also sentenced
Appellant to consecutive terms of one to two years’ imprisonment and five
years’ probation for the theft. The aggregate sentence was three to seven
years’ imprisonment plus five years’ probation. Additionally, the court
ordered $31,000 in restitution for the theft.
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On December 29, 2015, Appellant, through counsel, filed timely post-
sentence motions to withdraw his guilty pleas and modify his sentence. 3 The
trial court denied the counseled motions on December 30, 2016. Appellant
timely appealed the conviction at each docket number, and counsel timely
filed Pa.R.A.P. 1925(c)(4)4 statements. This Court consolidated the appeals.
Appellant’s counsel has petitioned to withdraw and submitted an
Anders/Santiago brief identifying two questions, which we have reordered
as follows:
Whether the sentencing court abused its discretion as the
aggregate sentence imposed, three (3) to seven (7) years
of incarceration followed by five (5) years of probation,
was excessive and unreasonable, not in accordance with
the applicable statutory requirements and without
articulated reasons[?]
Whether the trial court erred by denying the [Appellant’s]
Motion to Withdraw his Guilty Pleas where his pleas were
involuntarily, unknowingly, or unintelligently entered[?]
Anders/Santiago Brief at 10. Appellant has not filed a response.
“[T]his Court may not review the merits of the underlying issues
without first passing on the request to withdraw” by counsel.
3
That same day, Appellant mailed to the trial court a pro se post-sentence
motion indicating his counsel was ineffective and induced him to plead
guilty. The trial court filed the pro se motion and forwarded it to counsel.
See Pa.R.Crim.P. 576(A)(5). Appellant was represented by counsel from the
Public Defender’s Office, which has continued to represent Appellant in this
appeal.
4
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.”).
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Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (citation
omitted).
[T]he three requirements that counsel must meet before
he or she is permitted to withdraw from representation
[are] as follows:
First, counsel must petition the court for leave to
withdraw and state that after making a conscientious
examination of the record, he has determined that
the appeal is frivolous; second, he must file a brief
referring to any issues in the record of arguable
merit; and third, he 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 worthy of the Superior Court’s attention.
Id. (citations and footnote omitted).
Additionally, Santiago requires that
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 on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
[I]n Pennsylvania, when counsel meets his or 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.”
Id. at 355 n.5 (citations omitted). “Wholly frivolous” means “the appeal
lacks any basis in law or fact.” Id. at 356 (citation omitted).
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It should be emphasized that lack of merit in an appeal is
not the legal equivalent of frivolity. Anders appears to
rest narrowly on the distinction between complete frivolity
and absence of merit. The latter is not enough to support
either a request by counsel to withdraw, nor the granting
of such a request by the court.
Commonwealth v. Kearns, 896 A.2d 640, 647 (Pa. Super. 2006) (citations
and quotation marks omitted).
Appellant’s counsel has complied with the procedural requirements for
seeking leave to withdraw. Therefore, we proceed to review her assessment
that the appeal is frivolous. See Santiago, 978 A.2d at 355 n.5.
Appellant’s counsel first discusses Appellant’s claim that the trial
court’s sentence was excessive. Counsel has included a Pa.R.A.P. 2119(f)
statement in her Anders/Santiago brief. According to counsel, Appellant
“asserts that the trial court’s aggregate sentence of three (3) to seven (7)
years incarceration, followed by five (5) years of probation was manifestly
excessive, clearly unreasonable, and contrary to the fundamental norms
underlying the Sentencing Code.” Anders/Santiago Brief at 15. He would
further argue that the trial court failed to consider mitigating circumstances
and did not adequately explain its sentence. Id. at 21. Counsel believes
Appellant’s arguments could raise a substantial question, but concludes they
are frivolous because the individual sentences were within the standard
range suggested by the Sentencing Guidelines and the trial court set forth
an adequate statement for the reasons for its sentence. Id. at 15, 22. We
conclude this issue is frivolous.
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Appellant’s counsel has preserved Appellant’s intended sentencing
challenges by filing a timely post-sentence motion for modification, taking a
timely appeal, and including in her brief a Rule 2119(f) statement. See
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Thus,
we proceed to counsel’s assertion that Appellant could raise a substantial
question.
It is well settled that
the Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm . . . .
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “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.” Id.Generally, a challenge to the trial court’s discretion to impose
consecutive sentences does not pose a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 586-87 (Pa. Super. 2010).
In fact, this Court has recognized the imposition of
consecutive, rather than concurrent, sentences may raise a
substantial question in only the most extreme
circumstances, such as where the aggregate sentence is
unduly harsh, considering the nature of the crimes and the
length of imprisonment. That is in our view, the key to
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resolving the preliminary substantial question inquiry is
whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be,
an excessive level in light of the criminal conduct at issue
in the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (some
punctuation and citations omitted).
Moreover,
[w]here pre-sentence reports exist, we shall continue to
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and
weighed those considerations along with mitigating
statutory factors. A pre-sentence report constitutes the
record and speaks for itself. In order to dispel any
lingering doubt as to our intention of engaging in an effort
of legal purification, we state clearly that sentencers are
under no compulsion to employ checklists or any extended
or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not
be disturbed. This is particularly true, we repeat, in
those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion. . . .
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).
When sentencing in the standard range of the Sentencing Guidelines, “a
sentencing judge may satisfy [the] requirement of disclosure on the record
of his reasons for imposition of a particular sentence without providing a
detailed, highly technical statement.” Commonwealth v. Hunzer, 868
A.2d 498, 514 (Pa. Super. 2005) (citation omitted).
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Appellant’s intended challenges to the aggregate sentence focuses on
the trial court’s decision to run the theft sentence consecutively to the four
concurrent drug offenses.5 Such a challenge to the consecutive nature of a
sentence does not raise a substantial question under the circumstances of
this case. See Mastromarino, 2 A.3d at 586-87. Moreover, the suggestion
that the trial court, which had the benefit of a presentence investigation
report, failed to consider mitigating factors or inadequately explained its
sentence lacks support in the law or the record.6 See Devers, 546 A.2d at
5
Instantly, the parties agreed that Appellant had a prior record score of five,
the drug offenses carried an offense gravity score of six, and the theft
carried an offense gravity score of five. N.T. at 8-9. The standard range
recommended minimum sentences were from twenty-one to twenty-seven
months’ imprisonment for the drug offenses and from twelve to eighteen
months’ for the theft. Id. The court’s individual sentences of two to five
years’ imprisonment for the drug offenses and one to two years plus five
years’ probation thus fell within the standard range. The trial court, when
structuring the sentence, had the benefit of presentence investigation report
and stated it review the report. Id. at 7, 13.
6
The trial court, when sentencing, stated:
I have reviewed the P.S.I. I have taken into account the .
. . written and oral colloquies. I have taken into account
the provisions of the Sentencing Guidelines, the
information provided by the parties, as well as the
recommendations of the parties.
I have scrutinized [Appellant’s] prior record so that I
could get a proper context here and also in order to more
sensibly consider the provision of the Sentencing Code
insofar as the factors required to take into account, one of
which the severity of the offenses and [Appellant’s]
rehabilitative needs, especially in light of the extensive
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18; Hunzer, 868 A.2d at 514. Accordingly, we conclude Appellant’s
intended challenges to the excessiveness of the sentence do not raise
substantial questions and are frivolous.
Appellant’s counsel next discusses Appellant’s assertion that the trial
court erred in denying his post-sentence motions to withdraw his guilty
pleas. Appellant intends to argue that “he did not enter his guilty pleas
knowingly, intelligently or voluntarily” and “was pushed into entering open
guilty pleas.” Anders/Santiago Brief at 18. Appellant “want[s] to proceed
to trial and assert his innocence.” Id. Counsel observes that Appellant
“may argue that the guilty plea colloquy . . . failed to ascertain whether he
understood the nature of the charges to which he was pleading guilty.” Id.Counsel notes the on-the-record guilty plea colloquy did not include a
recitation of the elements of the charges. Id. However, counsel concludes
that this issue is frivolous because the totality of the circumstances
suggested Appellant was aware of the nature of the charges. Id. We
disagree with counsel’s assessment.
It is well-settled that:
[p]ost-sentence motions for withdrawal are subject to
higher scrutiny since courts strive to discourage entry of
guilty pleas as sentence-testing devices. A defendant
must demonstrate that manifest injustice would result if
substance abuse history that has been outlined and
detailed.
N.T. at 13.
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the court were to deny his post-sentence motion to
withdraw a guilty plea. “Manifest injustice may be
established if the plea was not tendered knowingly,
intelligently, and voluntarily.”
Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010) (citations
omitted).
The Pennsylvania Rules of Criminal Procedure mandate
that pleas be taken in open court, and require the court to
conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of
his plea. Specifically, the court must affirmatively
demonstrate the defendant understands: (1) the nature of
the charges to which he is pleading guilty; (2) the factual
basis for the plea; (3) his right to trial by jury; (4) the
presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) that the court is not
bound by the terms of the agreement unless the court
accepts the agreement. This Court will evaluate the
adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the
circumstances surrounding the entry of that plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016)
(citations omitted); see also Pa.R.Crim.P. 590 & cmt.
Section 3921(a) of the Crimes Code defines theft as follows: “A person
is guilty of theft if he unlawfully takes, or exercises unlawful control over,
movable property of another with intent to deprive him thereof.” 18 Pa.C.S.
§ 3921(a). The maximum sentence for theft is determined, in part, by the
value of the property taken. See id. § 3903(a.1), (b). “If the amount
involved exceeds $2,000,” a theft is graded as a third-degree felony,
punishable by a maximum of seven years imprisonment. Id. §§ 1103(3),
3903(a.1). If the amount involved is $2,000 or less, but greater than $200,
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the theft is graded as a first-degree misdemeanor, punishable by a
maximum of five years imprisonment. Id. §§ 1104(1), 3903(b).
Instantly, the record establishes that Appellant was apprised of the
factual bases for his guilty pleas, his right to trial by jury, the presumption of
innocence, and the maximum possible sentences. N.T. at 3-7.
Additionally, Appellant was aware that the court was not bound by the
parties’ agreement on the charges and he could withdraw his pleas if the
court did “not sentence him in accordance with the charge agreement.” See
id. at 4. As counsel notes, Appellant also signed written guilty plea
colloquies indicating he understood the nature of the charges to which he
was pleading guilty, including the felony-three theft.
However, the written colloquy and the totality of the circumstances
discussed by Appellant’s counsel do not establish that Appellant admitted or
was advised that the items stolen were valued over $2,000. In his written
colloquy, Appellant acknowledged that he “unlawfully took or exercised
control over moveable property of another, having a value of $2,000 more
or less, with the intent to deprive the owner thereof.” Statement
Accompanying Defendant’s Request to Enter a Guilty Plea, CP-06-CR-
0005965-2014, at 3 (emphasis added). Although restitution was
subsequently set at $31,000 at sentencing, the record surrounding the guilty
plea evinces no clear statement of the value of the stolen items. See N.T. at
5-6.
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Thus, we find that Appellant’s counsel failed to address the issue
regarding the value of the items Appellant admitted he “stole.” In so doing,
counsel overlooked possible challenges to the knowing nature of Appellant’s
plea to theft and the legality of the sentence imposed for that offense. Cf.
Kearns, 896 A.2d at 645-46. Therefore, we must deny counsel’s motion to
withdraw and remand this case for further proceedings. See Santiago, 978
A.2d at 355 n.5, 361. Counsel shall have thirty days to consider these
issues and either file an amended Anders/Santiago brief,7 or petition this
Court for remand under Pa.R.A.P. 1925(c)(4) if counsel determines there
any nonfrivolous issues for appeal.
Petition to withdraw denied. Case remanded. Counsel shall file an
amended Anders/Santiago brief or a petition for remand under Pa.R.A.P.
1925(c)(4) within thirty days of this memorandum. Panel jurisdiction
retained.
7
If counsel elects to file an amended Anders/Santiago brief, she shall file a
new petition to withdraw pursuant to Anders/Santiago, which ensures,
inter alia, that Appellant is apprised of his right to proceed pro se or with
private counsel and counsel has provided Appellant a copy of her brief.
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