Com. v. Bojnoski, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37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
Appellee
v.
JEFFREY THOMAS BOJNOSKI
Appellant No. 1930 MDA 2016
Appeal from the Judgment of Sentence November 2, 2016
in the Court of Common Pleas of Lackawanna County,
Criminal Division, at No(s): CP-35-CR-0000867-2014,
CP-35-CR-0001085-2016, CP-35-CR-0001211-2016
BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 01, 2017
Jeffrey Thomas Bojnoski (Appellant) appeals from the judgment of
sentence which the trial court imposed after revoking Appellant's probation.
In addition, Appellant's counsel has filed a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
deny counsel's petition without prejudice, and remand for further
proceedings consistent with this memorandum.
The trial court summarized the pertinent factual and procedural history
as follows.
On August 30, 2016, in case no. 16-CR-1085, [Appellant]
pled guilty to one count of unsworn falsification to authorities, in
place of the original charge of failure to comply with registration
of sexual offender requirements. This charge arose when
[Appellant] changed residences but failed to inform sexual
*Retired Senior Judge assigned to the Superior Court.
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offender registration authorities of this change. On October 5,
2016, [Appellant] pled guilty to one count of harassment in case
no. 16-CR-1211, and in exchange the other charges pending
against [Appellant] were [nolle prossed]. These charges arose
on April 16, 2016, when [Appellant] attacked and injured his
girlfriend.
On November 2, 2016, [Appellant] was sentenced in these
two cases and resentenced in case no. 14-CR-867 (a prior case
against [Appellant] for failure to provide accurate sexual
offender registration information that had been replaced with a
charge of providing a false statement to authorities when he pled
guilty). The [trial] court noted that although [Appellant] was
now expressing a desire to change his ways and do what is right,
the court had sentenced [Appellant] in 2014 for simple assault,
and that [Appellant] had coaxed out on that charge because he
did not want to complete the programs he was in at the prison.
The [trial] court also noted that [Appellant] provided his
probation officer with an address for his home plan, but that
three days later, he was found to be living at a different address.
The court stated that [Appellant] talks a good game but he does
not act in a way that indicates that he has any respect for the
law. The court imposed a 6 to 12 month sentence in case no.
14-CR-867, a 12 to 24 month sentence in case no. 16-CR-1085,
and a 1.5 to 3 month sentence in case no. 16-CR-1211. His
aggregate sentence was thus 19.5 to 39 months. The court
ordered a drug and alcohol and mental health evaluation. The
court noted that the sentence in 16-CR-1085 was in the
aggravated range since [Appellant] committed the crime while
he was on supervision and it was similar to a prior case against
him of failing to provide the proper residence to authorities so
that he certainly had to be aware of the obligation to provide a
proper address to authorities. The court noted that the other
sentences were within the standard range of the sentencing
guidelines.
On November 14, 2016 [Appellant] filed a motion for
reconsideration of sentence which was denied on November 17,
2016. On November 28, 2016, [Appellant] filed a [n]otice of
[a]ppeal, and on December 6, 2016, th[e trial] court ordered
[Appellant] to file a concise statement of the matters complained
of on days appeal within 21 days pursuant to Pa.R.A.P. 1925(b).
On December 15, 2016, [Appellant] filed a [s]tatement of
[m]atters [c]omplained of on [a]ppeal.
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Trial Court Opinion, 1/17/2017, at 1-3 (citations omitted).
In this Court, in lieu of a brief in support of Appellant's appeal, counsel
filed both an Anders brief and a petition to withdraw as counsel.
Accordingly, the following principles guide our review.
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof....
Anders counsel must also provide copy of the Anders
a
petition and brief to the appellant, advising the appellant of the
right to 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. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we hold 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
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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.
Based upon our examination of counsel's petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements cited supra.' Once "counsel has met these
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.'
Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)
(quoting Santiago, 978 A.2d at 354 n. 5).
Pertinent to our disposition, there appears to be some confusion
regarding whether Appellant's sentences, and in particular the sentence at
docket number CP-35-CR-0001085-2016 (Case 1085), fall within the
standard or aggravated range of Appellant's guidelines, or outside the
guidelines entirely. Compare Anders Brief at 5-6 (stating that the
sentencing court imposed sentences in either the aggravated range or
outside the guideline range) with Trial Court Opinion, 1/17/2017, at 2 ("The
court noted that the sentence in [Case 1085] was in the aggravated range[.]
1 Appellant has not responded to counsel's petition to withdraw.
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... The court noted that the other sentences were within the standard range
of the sentencing guidelines.") (citations omitted).
While the guidelines do not apply to Appellant's sentence at CP-35-CR-
0000867-2014, a sentence following the revocation of his probation, the
guidelines must be consulted when imposing sentences in Appellant's two
other cases. See Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.
Super. 2006) ("Sentencing [g]uidelines do not apply to sentences imposed
following a probation revocation"). See also 204 Pa. Code § 303.1 ("The
court shall consider the sentencing guidelines in determining the appropriate
sentence for offenders convicted of, or pleading guilty or nolo contendere to,
felonies and misdemeanors.").
Here, this Court is without a guilty plea transcript or sentencing
guideline form for Case 1085.2 From the little we can glean from the sparse
record, Appellant was sentenced on November 2, 2016, to one count of
unsworn falsification to authorities, a misdemeanor in the second degree.
18 Pa.C.S. § 4904(a)(1). Appellant received a sentence of 12 to 24 months'
incarceration. At the time of his sentencing Appellant's prior record score
was two. Thus, under the sentencing matrix the applicable standard
2 This is an additional basis for denying counsel's motion. "Without these
notes of testimony, [c]ounsel could not have fulfilled his duty to review the
record for any non -frivolous issues." Flowers, 113 A.3d at 1250. Upon
remand, prior to filing his advocate's brief, counsel must obtain the missing
transcript and ensure its inclusion in the certified record. Id. at 1251.
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guideline range was restorative sanctions -3, plus or minus three. Although
the sentencing court and Commonwealth contend that Appellant's sentence
at Case 1085 falls within the aggravated range of the guidelines, based on
the information afforded to this Court, we cannot reconcile this conclusion.
Based upon foregoing, it appears Appellant was sentenced well outside the
guideline range.
If Appellant was sentenced outside the guideline range and the
sentencing court failed to proffer reasons on the record for deviating from
the guidelines, Appellant's appeal would not be wholly frivolous. See
Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super. 1995).
Due to these deficiencies, we deny without prejudice counsel's petition
to withdraw. We remand this case and direct the trial court to supplement
the record with the pertinent information concerning Appellant's guilty plea
and sentencing guidelines within 30 days of the date of this memorandum.
Counsel is then directed to file within 30 days either an advocate's brief or
supplemental Anders brief and petition to withdraw. The Commonwealth
shall have 30 days from the date that counsel files her brief in order to file a
responsive brief.
Petition to withdraw as counsel denied. Case remanded with
instructions. Panel jurisdiction retained.
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