Com. v. Billinger, A. ( 2019 )

J-S15026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY L. BILLINGER :
:
Appellant : No. 1091 WDA 2018
Appeal from the Judgment of Sentence Entered July 17, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000463-2017
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 24, 2019
Anthony L. Billinger (“Appellant”) appeals from the judgment of
sentence entered after he pled guilty to possession with intent to manufacture
or deliver a controlled substance, 35 P.S. § 780-113(a)(30), and possession
of a firearm prohibited, 18 Pa.C.S. § 6105(a)(1). Appellate counsel has filed
a petition for leave to withdraw her representation and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), which govern withdrawal from
representation on direct appeal. We grant counsel’s petition for leave to
withdraw and affirm.
According to the criminal complaint filed in the underlying matter,
officers executed a search warrant at Appellant’s residence in Erie,
Pennsylvania, at 1:30 p.m. on January 3, 2017. During the search, officers
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* Retired Senior Judge assigned to the Superior Court.
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recovered significant quantities of cocaine, heroin, marijuana, and a loaded
semi-automatic handgun. Criminal Complaint, 1/3/17, at 2.
Appellant entered a guilty plea to the above-noted charges on July 17,
2017, and the trial court sentenced him the same day to incarceration for an
aggregate period of eighty-seven to 174 months, consecutive to any other
sentence Appellant was serving. N.T., 7/17/17, at 13. Appellant filed a
motion to reconsider/modify his sentence, which the trial court denied. Motion
for Reconsideration-Modification of Sentence, 7/27/17; Order, 8/3/17.
Appellant did not file an appeal. Subsequently, Appellant filed a pro se motion
for collateral relief on July 5, 2018, seeking reinstatement of his direct appeal
rights, which the trial court granted on July 12, 2018. This appeal followed. 1
Before we address any questions raised on appeal, we must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on direct
appeal. The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
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1 Because appellate counsel filed a Statement of Intent to File an Anders
brief in lieu of a Pa.R.A.P. 1925(b) statement, the trial court did not file a
substantive opinion pursuant to Pa.R.A.P. 1925(a). Memorandum Opinion,
9/27/18. Similarly, the Commonwealth did not file a responsive brief.
Commonwealth Letter, 2/4/19.
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arguments that the defendant deems worthy of the court's
attention.
Id. at 1032 (citation omitted).
In this case, those directives have been satisfied. Within the petition to
withdraw, counsel averred that she conducted a conscientious review of the
record and pertinent legal research. Following that review, counsel concluded
that the present appeal is frivolous. Anders Brief at 9. Counsel sent Appellant
a copy of the Anders brief and petition to withdraw, as well as a letter, a copy
of which is attached to the petition to withdraw. In the letter, counsel advised
Appellant that he could represent himself or that he could retain private
counsel. Appellant has not filed any additional documents with this Court.
Application to Withdraw, 1/11/19, at Exhibit 1.
We now examine whether the Anders brief satisfies the Supreme
Court’s dictates in Santiago, which provide 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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. The brief sets forth the
procedural history of this case, outlines pertinent case authority, and
discusses counsel’s conclusion that the appeal is frivolous. Anders Brief at 4,
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7, 9. We thus conclude that counsel has met the procedural and briefing
requirements for withdrawal.
Counsel has identified the following issue that Appellant believes entitles
him to relief: “Whether [Appellant’s] sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the Sentencing Code?”
Anders Brief at 3. Specifically, Appellant argues that “the trial court abused
its discretion in sentencing Appellant to such a lengthy period of incarceration,
given the mitigating factors of his case” and his remorse. Id. at 7–8.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). An appellant challenging the discretionary
aspects of his sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (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, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original). Whether a particular issue constitutes a
substantial question about the appropriateness of a sentence is a question to
be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d
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808, 811 (Pa. Super. 2001). As to what constitutes a substantial question,
this Court does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An
appellant must articulate the reasons the sentencing court’s actions violated
the sentencing code. Id.Herein, Appellant has met the first three requirements of the four-part
test. Appellant brought an appropriate appeal, raised the challenge in a post-
sentence motion, and included in his appellate brief the necessary concise
statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
In his Rule 2119(f) statement, Appellant acknowledges that the trial
court sentenced him within the Sentencing Guidelines. Anders Brief at 5. He
argues, however, that the case involves circumstances where the application
of the Guidelines would be clearly unreasonable. Id. (citing 42 Pa.C.S.
§ 9781(c)(2)). Appellant suggests that the trial court failed to consider his
rehabilitative needs, the gravity of the offenses, and the impact of the crimes
on the victims and community at large. Id. (citing 42 Pa.C.S. 9721(b)). This
Court has found a substantial question exists where there is an allegation that
the sentencing court failed to consider the factors set forth in 42 Pa.C.S.
§ 9721(b). See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.
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2006) (concluding that the appellant raised a substantial question where it
was alleged that the trial court failed to properly consider the factors set forth
in 42 Pa.C.S. § 9721(b)). Therefore, Appellant has raised a substantial
question. As such, we will review the merits of Appellant’s sentencing claim.
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. Fullin, 892 A.2d at 847. In this context, an abuse of discretion
is not shown merely by an error in judgment. Rather, an 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. Id.The sentencing judge has broad discretion in determining the proper
penalty, and this Court accords the sentencing court great deference because
the sentencing court is in the best position to view a defendant’s character,
displays of remorse, defiance, or indifference, and the overall effect and
nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (quotations and citations omitted). When imposing a sentence, the
sentencing court must consider “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.
§ 9721(b). As we have stated, “a court is required to consider the particular
circumstances of the offense and the character of the defendant.”
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Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,
the court should refer to the defendant’s prior criminal record, his age,
personal characteristics and his potential for rehabilitation.” Id. Additionally,
“[o]ur Supreme Court has determined that where the trial court is informed
by a pre-sentence report, it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009)
(citation omitted).
Our review of the record reflects that, at the time of Appellant’s
sentencing, the trial court had received and reviewed a presentence report.
N.T., 7/17/17, at 12–13. Further, the trial court heard argument from
Appellant's counsel, which focused upon Appellant’s rehabilitative potential,
remorse, and acceptance of responsibility. Id. at 6–7. The trial court then
heard Appellant’s allocution and the prosecutor’s position. Id. at 8–12. Prior
to announcing the judgment of sentence, the trial court referred to the
statements of counsel, Appellant’s statement, and the presentence
investigation report, which detailed Appellant’s criminal history and the
seriousness of the instant crimes. Id. at 12–13.
Upon review, we conclude that the trial court did not abuse its discretion
in imposing the instant sentence. The court had the benefit of a presentence
investigation report and considered the factors set forth in 42 Pa.C.S.
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§ 9721(b) in imposing the sentence. Accordingly, Appellant’s contrary claim
lacks merit.
Finally, we have independently reviewed the record in order to
determine whether there are any non-frivolous issues present in this case that
Appellant may raise. Commonwealth v. Yorgey, 188 A.3d 1190, 1198-
1199 (Pa. Super. 2018) (en banc). Having concluded that there are no
meritorious issues, we grant Appellant’s counsel permission to withdraw, and
we affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2019
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