Com. v. Brown, D. ( 2017 )

J-S16033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAMIEN BROWN,
Appellant No. 1175 WDA 2016
Appeal from the Judgment of Sentence July 8, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0000609-2016
CP-25-CR-0003556-2015
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 17, 2017
Appellant, Damien Brown, appeals from the judgment of sentence
imposed after he entered an open guilty plea to one count each of simple
assault and corruption of minors.1 Appointed counsel has filed a petition for
leave to withdraw as counsel pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2701(a)(1) and 6301(a)(1)(i), respectively.
J-S16033-17
We take the following facts from the trial court’s September 1, 2016
opinion and our independent review of the certified record. On July 9, 2015,
Appellant got into a fight with a male individual (Male Victim) in which he
punched him in the face multiple times, and slammed his head against the
pavement, resulting in injuries including broken bones and a concussion. On
November 14, 2015, twenty-two year old Appellant engaged in sexual
intercourse with a fifteen-year-old female victim (Female Victim) at her
residence.
On May 4, 2016, Appellant entered an open guilty plea to simple
assault and corruption of a minor. On July 8, 2016, the trial court sentenced
him to not less than twelve nor more than twenty-four months’ incarceration
for each crime, with the sentences to run consecutively. Appellant timely
appealed.2 On December 12, 2016, counsel filed a petition to withdraw and
an Anders brief on the basis that the appeal is wholly frivolous. Appellant
has not responded.
The standard of review for an Anders brief is well-settled.
Court-appointed counsel who seek to withdraw from
representing an appellant on direct appeal on the basis that the
appeal is frivolous must:
(1) petition the court for leave to withdraw
stating that, after making a conscientious
____________________________________________
2
On August 24, 2016, Appellant filed a concise statement of errors
complained of on appeal. The court filed an opinion on September 1, 2016.
See Pa.R.A.P. 1925.
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examination of the record, counsel has determined
that the appeal would be frivolous; (2) file a brief
referring to anything that arguably might support the
appeal but which does not resemble a “no-merit”
letter or amicus curiae brief; and (3) furnish a copy
of the brief to the defendant and advise the
defendant of his or her right to retain new counsel or
raise any additional points that he or she deems
worthy of the court’s attention.
[T]his Court may not review the merits of the underlying
issues without first passing on the request to withdraw.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations
and quotation marks omitted). Further, our Supreme Court ruled in
Santiago, supra, that Anders briefs must contain “a discussion of
counsel’s reasons for believing that the client’s appeal is frivolous[.]”
Santiago, supra at 360.
Instantly, counsel’s Anders brief and application to withdraw
substantially comply with the applicable technical requirements and reveal
that she has made “a conscientious examination of the record [and]
determined that the appeal would be frivolous[.]” Lilley, supra at 997
(citation omitted). Additionally, the record establishes that counsel served
Appellant with a copy of the Anders brief and application to withdraw, and a
letter of notice, which advised Appellant of his right to retain new counsel or
to proceed pro se and raise additional issues to this Court. See id.; (see
also Petition for Leave to Withdraw as Counsel, 12/12/16, Exhibit I).
Further, the application and brief cite “to anything that arguably might
support the appeal[.]” Lilley, supra at 997 (citation omitted); (see also
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Anders Brief, at 4-9). As noted by our Supreme Court in Santiago, the
fact that some of counsel’s statements arguably support the frivolity of the
appeal does not violate the requirements of Anders. See Santiago, supra
at 360-61. Accordingly, we conclude that counsel complied with Anders’
technical requirements. See Lilley, supra at 997.
Having concluded that counsel’s petition and brief substantially comply
with the technical Anders requirements, we must “conduct [our] own review
of the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Lilley, supra at 998
(citation omitted).
The Anders brief raises one question for our review: “Whether the
Appellant’s sentence is manifestly excessive, clearly unreasonable and
inconsistent with the objectives of the Sentencing Code?” (Anders Brief, at
3).
Appellant’s issue challenges the discretionary aspects of his sentence,
which “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citations
omitted).3
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3
“[I]ssues 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.” Commonwealth v.
(Footnote Continued Next Page)
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It is well-settled that:
When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to
the inappropriateness of the sentence. Two requirements must
be met before we will review this challenge on its merits. First,
an appellant must 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. Second, the appellant
must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. That is,
[that] the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.
We examine an appellant’s Pa.R.A.P. 2119(f) statement to
determine whether a substantial question exists. 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.
Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (case
citations omitted) (emphases in original).
Here, Appellant has met the procedural requirement of including a
Rule 2119(f) statement. (See Anders Brief, at 4-6). Accordingly, we must
_______________________
(Footnote Continued)
Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (citation
omitted.
In the case before us, Appellant filed a post-sentence motion that
merely stated that he “is unhappy with his sentence and would for it to be
modified [sic].” (10 Day Motion to Reconsider Sentence, 7/12/16, at
unnumbered page 1). This vague claim arguably waives Appellant’s issue on
appeal. See Cartrette, supra at 1042. However, because counsel has filed
a petition to withdraw, we will not deem Appellant’s issue waived. See
Commonwealth v. Bishop, 831 A.2d 656, 659 (Pa. Super. 2003) (noting
that, “[p]ursuant to Anders, this Court must review the merits of all claims
set forth in an Anders brief in order to determine whether to grant counsel’s
petition to withdraw from representation, despite the fact that the issues
have been waived.”) (citation omitted).
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consider whether Appellant’s statement raises a substantial question. See
Hill, supra at 363-64.
Appellant’s Rule 2119(f) statement maintains that “the sentencing
court sentenced [him] within the guidelines[,] but failed to consider the
factors set out in [section 9721(b) of the Sentencing Code].” (Anders Brief,
at 6). This raises a substantial question. See Commonwealth v. Derry,
150 A.3d 987, 992 (Pa. Super. 2016) (“An averment that the trial court
failed to consider relevant sentencing criteria, including the protection of the
public, the gravity of the underlying offense and the rehabilitative needs of
[a]ppellant, as 42 [Pa.C.S.A.] § 9721(b) requires[] presents a substantial
question for our review . . . .”) (citation omitted). Therefore, we will conduct
a merit review of Appellant’s claim.
Our standard of review of a sentencing challenge is well-settled:
Sentencing 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. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015)
(citation omitted). Moreover, “the guidelines have no binding effect, create
no presumption in sentencing, and do not predominate over other
sentencing factors—they are advisory guideposts that are valuable, may
provide an essential starting point, and that must be respected and
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considered; they recommend, however, rather than require a particular
sentence.” Commonwealth v. Glass, 50 A.3d 720, 727-28 (Pa. Super.
2012), appeal denied, 63 A.3d 774 (Pa. 2013) (citation and footnote
omitted).
Here, our independent review of the record reveals that, in formulating
Appellant’s sentence, the court considered several relevant factors. For
example, it noted that he accepted responsibility for his crimes, it heard the
testimony of his step-grandfather, and read a letter from his grandmother.
(See N.T. Sentencing, 7/08/16, at 8-9, 15). The court considered the
argument of counsel and Appellant’s testimony on his own behalf. (See id.
at 9-11, 13-17). It also heard testimony from the Female Victim’s mother,
and noted Appellant’s voluminous criminal history, his repeated probation
and parole revocations, and his substance abuse problems. (See id. at 12-
13, 15-18). The court noted the fact that Appellant’s assault of the Male
Victim, whom he describes as a “friend,” included “smash[ing] his head
against the pavement[,]” and resulted in over $8,000.00 in medical bills.
(Id. at 17; see id. at 13). Finally, we note that the court had the benefit of
a pre-sentence investigation report, (see id. at 13), and therefore “we can
assume the sentencing court was aware of relevant information regarding
[Appellant’s] character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Moury, 992 A.2d 162,
171 (Pa. Super. 2010) (citations omitted).
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Based on the foregoing, and our review of the record as a whole, we
conclude that Appellant’s claim is “wholly frivolous” and does not merit
relief. Lilley, supra at 998; see also Johnson, supra at 826.
Additionally, we find no other non-frivolous issues.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
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