Com. v. Laramy, E. ( 2017 )

J-S46034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWIN ALAN LARAMY :
:
Appellant : No. 150 MDA 2017
Appeal from the Judgment of Sentence December 22, 2016
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000143-2010,
CP-01-CR-0000146-2010
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 19, 2017
Appellant, Edwin Alan Laramy, appeals from the judgment of sentence
entered by the Court of Common Pleas of Adams County following a
revocation of intermediate punishment sentences. Appellant contends that
the sentencing court abused its discretion by failing to consider mitigating
evidence presented by Appellant. Also, counsel for Appellant has filed an
Application to Withdraw from representation and a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009) (“the Anders brief”). We grant counsel’s application to
withdraw and affirm Appellant’s judgment of sentence.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S46034-17
The trial court aptly summarizes the factual and procedural histories of
Appellant’s case as follows:
In CP-01-CR-143-2010, Defendant [hereinafter Appellant] was
originally charged by criminal complaint dated January 13, 2010,
with two counts of criminal attempt to commit indecent assault
of a complainant less than thirteen years of age.[] The charges
stem from an incident occurring on January 6, 2009 where
Appellant was present in a residence in Cumberland Township,
Adams County, Pennsylvania. Another adult in the residence
observed Appellant in the bedroom of a girl under the age of
thirteen years. Appellant was straddling the juvenile on his
knees, with his penis in his hand, masturbating near her face. It
appeared the juvenile female was sleeping.
In CP-01-CR-146-2010, Appellant was originally charged by
criminal complaint dated January 13, 2010, with one count of
aggravated indecent assault of a complainant less than thirteen
years of age, indecent assault of a complainant less than
thirteen years of age, and corruption of minors.[] The female
was less than thirteen years of age during the years 2002 and
2006. Appellant digitally penetrated the vagina of the juvenile
female, performed oral sex on the juvenile female, and exposed
his penis to her.
On July 16, 2010, in accordance with 50 P.S. § 7403, Appellant
filed a “Motion for Hearing to Determine Defendant’s
Competency.” Therein, Appellant alleged he fell from a twelve
foot ladder on November 17, 2009, received a closed head
injury, and had been diagnosed and treated for amnesia. An
evidentiary hearing in this matter was held on August 15, 2011,
before the Honorable Judge Michael A. George. The
Commonwealth presented testimony from psychiatrist Dr. Bruce
Wright, and Appellant presented testimony from psychiatrist Dr.
John Hume. On August 31, 2011, Judge George entered an
Order and Opinion finding Appellant competent to stand trial for
the charges pending against him. In this Opinion, Judge George
stated:
As mentioned, Laramy [hereinafter Appellant] claims
he cannot meaningfully assist his defense because
he suffered a head injury resulting in loss of his
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memory of the relevant time period. However, the
Commonwealth suggests Appellant is fabricating his
memory loss in a self-serving attempt to avoid
prosecution. In resolving this conflict, the Court
finds the testimony of Dr. Bruce Wright credible. As
Dr. Wright correctly notes, information provided by
Appellant to various medical personnel in connection
with his evaluation and treatment establishes a
pattern of inconsistency indicative of malingering.
For instance, while Appellant alleged to one physician
that he had no memory of his relationship with his
ex-wife and children, he advised another physician
that his ex-wife was using the children to retaliate
against him because “she didn’t want me to have
anybody else, so when I moved out she couldn’t
control me and my money to give her things.”
Importantly, in discussing the criminal charges
against him, Appellant admitted “I’m positive this
didn’t happen. This is all made up. It’s out of
revenge.” This statement is quite different than a
claim that one does not remember the incident and,
conversely, whether or not it occurred. Rather, it is
an affirmative indication by Appellant that he has a
specific memory of the time period at issue.
Trial Cr. Op., 8/31/11, at 2-3.
Judge George also stated “I find as a matter of fact that
Appellant’s memory is not impaired to the extent it would
hamper his ability to assist in his defense. Appellant’s self-
serving subjective claims to the contrary are not persuasive.”
Id. at 3-4.
On October 3, 2011, Appellant appeared before Judge Thomas R.
Campbell with counsel. In CP-01-CR-143-2010 the
Commonwealth amended the Information to regrade count 1 as
a felony of the third degree. Thereafter, Appellant entered a
plea of nolo contendere to count 1, criminal attempt to commit
indecent assault in violation of 18 Pa.C.S.A. § 901(a) and 18
Pa.C.S.A. § 3126(a)(7). In CP-01-CR-146-2010 the
Commonwealth amended the Information to regrade count 3,
criminal attempt to commit indecent assault, as a felony of the
third degree. Thereafter, Appellant entered a plea of nolo
contendere to count 3, criminal attempt to commit indecent
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assault in violation of 18 Pa.C.S.A. § 901 and 18 Pa.C.S.A. §
3126(a)(7). Appellant appeared with counsel before Judge
Campbell on January 19, 2012 for sentencing, and in both cases,
pursuant to agreement, Appellant was sentenced to seven years
in the intermediate Punishment Program with eleven months in
restrictive intermediate punishment. The sentences in each of
these cases ran concurrent with each other.
On August 20, 2013, a Motion for Revocation was filed seeking
to revoke Appellant’s intermediate punishment sentence in both
of the above-captioned cases. The motion was based upon
allegations that Appellant had violated prison and house arrest
rules by moving to an unauthorized location, by appearing in the
vicinity of a night club which serves alcohol, by being evicted
from his residence, and by not providing Probation with another
acceptable address that could be used for house arrest
supervision.
On September 24, 2013, Appellant appeared with counsel at the
intermediate punishment revocation hearing and acknowledged
violating the conditions of his intermediate punishment. In both
cases Appellant was resentenced to 7 years of intermediate
punishment with 363 days in restrictive intermediate
punishment. As in his previous sentence, both cases ran
concurrent with each other.
On September 15, 2016, the Commonwealth once again moved
to revoke Appellant’s intermediate punishment sentences. The
basis for the revocation was that Appellant was unsuccessfully
discharged from sex offender counseling at Commonwealth
Clinical on August 26, 2016.
On October 27, 2016, Appellant appeared with counsel at the
intermediate punishment revocation hearing before th[e] court
and acknowledged violating the conditions of his sentence of
intermediate punishment. Th[e] court directed a presentence
investigation be completed, which was to include any sexual
offender treatment which Appellant was directed to complete
and the results of that treatment.
Appellant appeared with counsel before th[e] court for
sentencing on December 22, 2016. Th[e] court had the benefit
of a presentence investigation which was completed on
November 28, 2016. The presentence investigation report
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outlined Appellant’s prior criminal history, including the above-
captioned criminal convictions for two counts of indecent assault
involving two separate juvenile victims and one count of
indecent assault from 2001, also involving a juvenile victim. The
court also received a report from psychotherapist Ryan C.
Owens, a certified sexual offender treatment specialist, who was
responsible for Appellant’s sexual offender counseling.
Information provided from Commonwealth Clinical Group
advised that between January 1, 2016 and May 10, 2016,
Appellant was absent from group therapy more than five times
without an excuse. Appellant was also absent from individual
therapy on August 23, 2016 and group therapy on August 24,
2016. Psychotherapist Owens stated “During the course of
treatment with this agency, Appellant oscillated between stating
he didn’t remember committing his prior sexual offenses to
disclosing he didn’t commit the offenses.” Psychotherapist
Owens concluded “due to the aforementioned issues, Appellant is
not amenable to community-based, outpatient sexual offender
treatment at the current time and a higher level of care within a
more secure environment is recommended.”
In both of the above captioned cases th[e] court sentenced
Appellant to no less than 18 months nor more than 84 months in
confinement at a state correctional institution with custody credit
of 337 days to run concurrent with each other. In imposing
sentence, th[e] court noted it had reviewed the presentence
investigation, the attachments to the presentence investigation
concerning Appellant’s sexual offender treatment, a letter from
Appellant’s wife, entertained the comments of counsel and
reviewed the entire file in this matter, including Judge George’s
2011 Opinion regarding Appellant’s competency. Th[e] court
further noted that Appellant’s sentences were based on
Appellant’s convictions for two separate cases of child sexual
assault, a prior conviction for child sexual assault, Appellant’s
failure to successfully complete sexual offender treatment, and
the fact that this was a second revocation in both cases. Finding
that local efforts had been exhausted, Appellant was sentenced
to the custody of state authorities.
On January 19, 2017, Appellant filed Notice of Appeal to the
Superior Court of Pennsylvania from the judgment of sentence
dated December 22, 2016 on both of the above-captioned cases.
In Appellant’s Statement of Errors Complained of on Appeal,
Appellant averred “the court abused its discretion by not
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appropriately taking into consideration Appellant’s traumatic
brain injury. Because of the brain injury Appellant formerly pled
nolo contendere to the original criminal charges yet th[e] court
admonished Appellant for his inability to admit the crimes in
counseling, which contributed to his termination from
counseling.” In essence, the sole issue on appeal is that the
court abused its discretion by failing to consider mitigat[ing]
evidence in sentencing Appellant to a state correctional
institution.
Trial Court Opinion, 3/13/17, at 1-6.
Because counsel has filed a petition to withdraw pursuant to Anders
and its Pennsylvania counterpart, Santiago,1 we must address counsel's
petition before reviewing the merits of Allen's underlying claims.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007). We
first address whether counsel's petition to withdraw satisfies the procedural
requirements of Anders. To be permitted to withdraw, 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
____________________________________________
1
Instantly, counsel did not file a separate petition with this Court to
withdraw his representation. The Anders brief, however, contains what
appears to be a copy of the petition counsel intended to file, as it bears the
caption to the present appeal, the title “Petition to Withdraw as Counsel,”
averments by counsel that he satisfied all Anders/Santiago requirements,
a specific request to withdraw, and counsel’s signature.” See Anders Brief
at 17. Thus, we can treat the request to withdraw as properly before this
Court. See Commonwealth v. Fischetti, 669 A.2d 399 (Pa.Super. 1995)
(explaining more desirable practice is for counsel to submit separate
withdrawal petition to Superior Court; nevertheless, withdrawal request
included in Anders brief would suffice, where counsel did not file separate
petition).
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he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court's attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc ).
Here, appellate counsel has stated that after a conscientious
examination of the entire record, he “found no merit in any actual or
potential issues and is hereby certifying that the appeal is frivolous.” App. to
Withdraw, 4/28/17, at 1. Appellate counsel furnished a copy of the Anders
brief to Appellant, as well as a letter advising him:
You have the right to retain new counsel, to proceed on your
own, that is, pro se, and you have the right to raise any
additional points with the Superior Court that you deem . . .
worthy of the Court’s attention. If you fail to exercise any of
these options, the Superior Court could review your appeal
based on what I have filed and release me from representing
you any further. If you choose not to exercise the right to raise
additional points with the Superior Court, you will be bound by
the Superior Court’s decision and the brief which I have filed on
your behalf. If you have any questions regarding this letter or
what I have done on your behalf, please do not hesitate to
contact me at the Public Defender’s Office.”
Ltr. to Appellant, 4/28/17.
We conclude that counsel's petition to withdraw has complied with the
procedural dictates of Anders.
We next address whether counsel's Anders brief meets the
requirements established by the Pennsylvania Supreme Court in Santiago.
The brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
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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.
Here, appellate counsel has provided a summary of the procedural
history and the facts with appropriate citations to the record. Anders brief
at 7-8. Counsel's brief states that he conducted a thorough review of the
record and determined that any appeal would be frivolous, and set forth his
reasons for that conclusion. Id. at 9. Accordingly, appellate counsel has
substantially complied with the requirements of Anders and Santiago.
Appellant has not filed a pro se brief or a counseled brief with new,
privately-retained counsel. We, therefore, review the issue raised in the
Anders brief to determine if the appeal is frivolous.
Appellant raises the following issue:
Whether the court abused its discretion in sentencing Defendant
to no less than 18 months, nor more than 84 months, to be
served in a State Correctional Institution, to wit:
Appellant avers the court abused its discretion by not
appropriately taking into consideration Defendant’s
traumatic brain injury. Because of the brain injury
Defendant formerly pled Nolo Contendere to the original
criminal charges, yet th[e] court admonished Defendant
for his inability to admit to the crimes in counseling,
which contributed to his termination from counseling.
Anders Brief at 6. Our standard of review when considering discretionary
aspects of sentencing claims is as follows:
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Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We
must accord the sentencing court's decision great weight
because it was in the best position to review the defendant's
character, defiance or indifference, and the overall effect and
nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11–12 (Pa.Super. 2007) (internal
quotations and citations omitted).
“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). “Two requirements must be met before we will review
this challenge on its merits.” Id. “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.” Id. “Second, the
appellant must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” Id. A substantial
question exists when, “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.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa.Super. 2005). Importantly, “[i]ssues
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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. Shugars, 895 A .2d
1270, 1273–74 (Pa.Super. 2006) (citation and quotations omitted).
We conclude that Appellant has waived his discretionary aspects of
sentence claim. Our review of the certified record reveals that Appellant
never filed a post-sentence motion challenging the discretionary aspects of
his sentence. Additionally, the transcript of the sentencing proceedings
reveals that Appellant did not challenge the discretionary aspects of his
sentence during sentencing. See N.T., 12/22/16, at 14-15. Thus, Appellant
waived his discretionary aspects of sentence claim. See Shugars, 895 A.2d
at 1273–74. Therefore, we deem frivolous the sole issue Appellant raises on
appeal.
We have conducted our own independent review and conclude the
appeal is wholly frivolous. Accordingly, we affirm judgment of sentence and
grant appellate counsel’s petition to withdraw.
Judgment of sentence is AFFIRMED. Petition to withdraw is GRANTED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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