Com. v. Shafer, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN W. SHAFER
Appellant No. 1237 MDA 2014
Appeal from the Judgment of Sentence of June 11, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0003182-2012
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED MARCH 19, 2015
Shawn W. Shafer appeals from the judgment of sentence imposed
following his entry of guilty pleas to robbery, escape, resisting arrest, and
possessing instruments of crime (“PIC”).1 Counsel for Shafer has petitioned
for leave to withdraw as counsel on the ground that Shafer’s issue on direct
appeal is wholly frivolous. We grant the petition for leave to withdraw as
counsel, and we affirm the judgment of sentence.
The trial court set forth the underlying procedural history of this case
as follows:2
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1
18 Pa.C.S.A. §§ 3701(a)(1)(iv), 5121(a), 5104, and 907, respectively.
2
The facts underlying Shafer’s guilty plea are immaterial to our
disposition. Therefore, we need not recite them here.
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The [c]ourt accepted [Shafer’s] guilty pleas at a hearing on
March 15, 2013. A Pre-Sentence Investigation (PSI) was
ordered to be completed by the Luzerne County Adult Probation
and Parole Department, and a sentencing hearing was
scheduled.
On June 11, 2013, [Shafer] appeared before the [c]ourt for
sentencing. Upon a review of the PSI and upon consideration of
the submissions made by [Shafer] and counsel at the sentencing
hearing, [the court] determined that sentences within the
standard range of the applicable sentencing guidelines were
appropriate. Accordingly, [Shafer] was sentenced to an
aggregate term of seventy[-]five (75) months to one hundred
fifty (150) months in a state correctional institution.
Additionally, although [the court] ordered Count 4 to be served
concurrently with the sentence on Count 2, Counts 7 and 8 were
ordered to be served consecutive [sic] to each other,
consecutive to Count 2, and consecutive to any other sentence
[Shafer] was then serving. [Shafer] was subsequently advised
of his post-sentence rights before the hearing concluded.
[After a series of attempts to appeal pro se and orders issued by
this Court, o]n June 4, 2014, [Shafer] filed a [counseled] Motion
to Modify Sentence which [the trial court] denied by Order of the
same date. A Nunc Pro Tunc Notice of Appeal was filed on June
19, 2014, and on June 2[3], 2014, [the court] ordered [Shafer]
to filed a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) and requested the Commonwealth
to respond thereto.
On July 2, 2014, [Shafer] filed his Concise Statement . . . . The
Commonwealth’s response was filed on July 10, 2014.
Trial Court Opinion (“T.C.O.”), 9/25/2014, at 1-2.
On September 25, 2014, the trial court entered its Pa.R.A.P. 1925(a)
opinion, in which it reviewed Shafer’s sentence and concluded that Shafer
had failed to raise a substantial question that his sentence was contrary to
the fundamental norms or a violation of a provision of the Sentencing Code.
Id. at 3-5.
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On November 14, 2014, counsel for Shafer filed an Anders brief in
which she presented issues that might arguably support an appeal.3 Counsel
filed her petition for leave to withdraw as counsel on the same day, stating
that, after a conscientious examination of the record, she determined that
the appeal would be wholly frivolous. See Petition for Leave to Withdraw as
Counsel, 11/14/2014, at unnumbered page 1 ¶ 2. Attached to the petition is
a copy of her letter to Shafer advising him of her intent to seek withdrawal
as his counsel and of Shafer’s right to retain new counsel or to proceed with
his appeal pro se, and providing him with a copy of the Anders brief filed
with this Court. See id. at Attachment. Shafer has not responded to
counsel’s petition for leave to withdraw.
[I]n the Anders brief that accompanies . . . 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
____________________________________________
3
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and
remand the case with appropriate instructions (e.g., directing
counsel either to comply with Anders or file an advocate’s brief
on Appellant’s behalf). By contrast, if counsel’s petition and
brief satisfy Anders, we will then undertake our own review of
the appeal to determine if it is wholly frivolous. If the appeal is
frivolous, we will grant the withdrawal petition and affirm the
judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)
(citations omitted).
In the instant case, counsel has complied with the Anders and
Santiago requirements. She has submitted a brief that summarizes the
case and cites to the record, see Anders Brief at 1-4; refers to anything
that might arguably support the appeal, id. at 5-6; and sets forth her
reasoning and conclusion that the appeal is frivolous, id. at 6-7. See
Santiago, 978 A.2d at 361. She has filed a petition for leave to withdraw as
counsel, sent Shafer a letter advising him that she found no non-frivolous
issues, provided Shafer with a copy of the Anders brief, and notified Shafer
of his right to retain new counsel or proceed pro se. Shafer has not
responded.
“Once counsel has satisfied the [Anders] requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
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frivolous.” Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(citation omitted).
The Anders brief raises one question for our review: “Whether the
consecutive sentences imposed by the [trial court] are harsh and
excessive?” Anders Brief at 1.
In her Anders brief, counsel asserts that Shafer’s “aggregate
sentence, imposed with certain counts running consecutively to each other
and the entire sentence running consecutively to any other sentence
currently being served, is harsh and excessive.” Id. at 5. We agree with
counsel that the issue is without merit.
An argument premised upon the court’s order running a defendant’s
sentences consecutively is a challenge to the discretionary aspects of
sentencing. See Commonwealth v. Glass, 50 A.3d 720, 726 (Pa. Super.
2012).
[A]ccordingly, pursuant to the dictates of 42 Pa.C.S.A. § 9781,
[an appellant] must petition for allowance of appeal by including
in his brief a separate, concise statement of the reasons relied
upon for allowance of appeal. See Pa.R.A.P. 2119(f). The Rule
2119(f) Statement must “raise a substantial question as to the
appropriateness of the sentence” by demonstrating that the
“actions of the sentencing court [were either] inconsistent with
the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process.”
Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006) (case
citations omitted).
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In the instant case, counsel’s Anders brief includes a statement of
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
See Anders Brief at 5. Shafer contends that his sentence is excessive
because the court imposed some sentences consecutive to each other, and
consecutive to any other sentences being served, despite Shafer’s “regret for
his criminal actions that were motivated by a drug addiction.” Id. at 2
(citing Notes of Testimony (“N.T.”) Sentencing, 6/11/2013, at 10).
“[A]n allegation that the sentencing court did not consider certain
mitigating factors does not raise a substantial question.” Commonwealth
v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003) (citation omitted). “[An
a]ppellant’s claim that the trial court erred in ordering his sentences . . . to
run consecutively, instead of concurrently, to a previously imposed sentence
does not raise a substantial question.” Commonwealth v. Pass, 914 A.2d
442, 446 (Pa. Super. 2006). Furthermore, in general, “a claim of
excessiveness of sentence does not raise a substantial question where the
sentence is within the statutory limits.” Commonwealth v. Brown, 741
A.2d 726, 735 (Pa. Super. 1999).
Shafer’s challenge to the discretionary aspects of his sentence for the
court’s alleged failure to consider mitigating factors while running his
sentences consecutively fails to raise a substantial question. Accordingly, his
petition for allowance of appeal of the discretionary aspects of his sentence
is frivolous. Furthermore, upon independent review, we find no other non-
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frivolous basis for appeal. Therefore, we conclude that Shafer’s appeal is
wholly frivolous. O’Malley, 957 A.2d at 1266.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2015
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