Com. v. Keys, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DOUGLAS A. KEYS
Appellant No. 2875 EDA 2013
Appeal from the Judgment of Sentence September 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006719-2012
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED JANUARY 16, 2015
Appellant, Douglas A. Keys, appeals from the September 12, 2013
judgment of sentence, imposing an aggregate five to ten years’ incarceration
following his conviction at a non-jury trial for burglary and possession of an
instrument of crime (PIC).1 Furthermore, Appellant’s counsel filed a petition
to withdraw as counsel with this Court, together with a brief pursuant to
Anders v. California, 386 U.S. 738 (1967) and its progeny, averring the
appeal is wholly frivolous. After careful review, we vacate the judgment of
sentence and remand to the trial court for resentencing. We also deny
counsel’s petition to withdraw.
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1
18 Pa.C.S.A. §§ 3502(a)(1) and 907(a), respectively.
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The certified record discloses the following procedural history pertinent
to this appeal. Appellant was charged on April 7, 2012, with numerous
offenses in connection with his forced entry into the home of complainant,
Elliot Quattlebaum, while brandishing an air-gun rifle.2 On August 22, 2012,
Appellant filed an omnibus pretrial motion seeking suppression of statements
and physical evidence on various grounds. The certified record does not
contain any indication of a hearing on Appellant’s omnibus pretrial motion or
a disposition of the motion by the trial court. On June 21, 2013, Appellant
waived his right to a jury trial, and a bench trial proceeded before the trial
court. At the conclusion of the testimony, the trial court found Appellant
guilty of burglary and PIC and not guilty of the remaining charges.
On September 12, 2013, the trial court sentenced Appellant to five to
ten years’ incarceration for the burglary conviction. In so doing, as
requested by the Commonwealth, the trial court applied the mandatory
sentence pursuant to 42 Pa.C.S.A. § 9712. The trial court sentenced
Appellant to a concurrent one to two years’ incarceration for the PIC charge.
Appellant filed no post-sentence motion. On October 11, 2013, Appellant
filed a timely notice of appeal. On October 16, 2013, the trial court issued
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2
The charges included robbery, 18 Pa.C.S.A. § 3701(a)(1)(iii); burglary, 18
Pa.C.S.A. § 3502(a)(1); criminal trespass, 18 Pa.C.S.A. § 3503(a)(1)(i);
theft by unlawful taking, 18 Pa.C.S.A. § 3921(a); receiving stolen property,
18 Pa.C.S.A. § 3925(a); PIC, 18 Pa.C.S.A. § 907(a); simple assault, 18
Pa.C.S.A. § 2701(a); and recklessly endangering another person 18
Pa.C.S.A. § 2705.
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an order directing Appellant to file a concise statement of errors complained
of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925,
within 21 days of the order. On December 24, 2013, pursuant to Rule
1925(c)(4), in lieu of a concise statement, counsel filed a statement of his
intention to file an Anders brief. The trial court filed a Rule 1925(a) opinion
addressing the sufficiency of the evidence supporting Appellant’s convictions.
On July 23, 2014, counsel filed a motion to withdraw as counsel and
accompanying Anders brief. Appellant has not filed any response.
In his Anders brief, counsel raises the following issue for our review.
Was the evidence sufficient to prove burglary and [PIC]?
Anders Brief at 2.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, we review counsel’s Anders brief for
compliance with the requirements set forth by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e 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 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,
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controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is
frivolous.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005) and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client.
Counsel also must provide a copy of the Anders
brief to his client. Attending the brief must be a
letter that advises the client of his right to: (1) retain
new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the
appellant deems worthy of the court[’]s attention in
addition to the points raised by counsel in the
Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). If satisfied with counsel’s
compliance, “[o]ur Court must then conduct its own review of the
proceedings and make an independent judgment to decide whether the
appeal is, in fact, wholly frivolous.” Commonwealth v. Washington, 63
A.3d 797, 800 (Pa. Super. 2013) (citation omitted).
Instantly, we conclude counsel has not substantially adhered to the
procedural requirements of Anders. Counsel avers he “made a
conscientious examination of the record,” but makes no reference to the
unresolved omnibus pretrial motion. Anders Brief at 8. Counsel offers no
explanation for the failure of the trial court to address the issues raised
therein or for the lack of any record if the issues were addressed. This Court
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has held that a counsel’s failure to adequately review and cite to the record
is insufficient to meet the technical requirements of an Anders brief. “The
major thrust of Anders was to assure a careful assessment of any available
claims that an indigent appellant might have. That end is achieved by
requiring counsel to conduct an exhaustive examination of the record ….”
Commonwealth v. McClendon, 434 A.2d 1185, 1188 (Pa. 1981)
abrogated on other grounds by Santiago, supra; See also
Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006) (holding
counsel’s failure to secure all transcripts precluded compliance with his
obligation under Anders to “review[] the record to the extent required by
Anders/McClendon”); Commonwealth v. Goodenow, 741 A.2d 783, 786
(Pa. Super. 1999) (holding counsel’s inadequate recital of the procedural
history of a case with references to the record in his Anders brief did not
meet the technical requirements of Anders or evidence counsel’s required
review).
Upon presentation of a non-compliant Anders brief, we would typically
deny counsel’s motion to withdraw and direct the filing of a compliant
Anders brief or an advocate’s brief. Commonwealth v. Goodwin, 928
A.2d 287, 289 (Pa. Super. 2007). However, our independent review has
revealed a sentencing error by the trial court implicating the legality of
Appellant’s sentence, which requires remand to the trial court. Specifically,
the trial court imposed the mandatory sentence on the burglary charge
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pursuant to 42 Pa.C.S.A. § 9712.3 This sentencing provision has recently
been held to be unconstitutional in its entirety as violative of the United
States Supreme Court’s ruling in Alleyene v. United States, 133 S. Ct.
2151 (2013), that facts that increase mandatory minimum sentences must
be submitted to the finder of fact and must be found beyond a reasonable
doubt. Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super.
2014). Sentencing issues “premised upon Alleyene … implicate[] the
legality of the sentence and cannot be waived on appeal.” Commonwealth
v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc). “Legality of
sentence questions … may be raised sua sponte by this Court.”
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc),
appeal denied, 95 A.3d 277 (Pa. 2014) (citation omitted). “An illegal
sentence must be vacated.” Commonwealth v. Tanner, 61 A.3d 1043,
1046 (Pa. Super. 2013) (citation omitted). “Issues relating to the legality of
a sentence are questions of law…. Our standard of review over such
questions is de novo and our scope of review is plenary.” Commonwealth
v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citation omitted).
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3
Section 9712 provides for the imposition of a five-year mandatory
minimum sentence of incarceration for any person convicted of a crime of
violence, which includes burglary under 18 Pa.C.S.A. § 3502(a)(1), if it is
shown by a preponderance of the evidence at sentencing that “the person
visibly possessed a firearm or a replica of a firearm, whether or not the
firearm or replica was loaded or functional, that placed the victim in
reasonable fear of death or serious bodily injury, during the commission of
the offense.” 42 Pa.C.S.A. § 9712.
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In this case, at the sentencing hearing, the trial court, with apparent
concern for the implications of Alleyene, which had been announced three
months earlier, specifically found “that [Appellant] did visibly possess a
replica of a firearm that placed the victim in reasonable fear of death and
serious bodily injury … and I am making that finding beyond a
reasonable doubt.” N.T., 9/12/13, at 9 (emphasis added). We conclude,
the trial court’s employment of the higher burden of proof is unavailing.
In Valentine, this Court determined that the mandatory minimum
sentences imposed pursuant to Sections 9712 and 9713 were
unconstitutional even if the facts that trigger the mandatory minimum
sentence are submitted to the fact-finder and found beyond a reasonable
doubt, instead of by the trial court by a preponderance of evidence at
sentencing. Valentine, supra at 811-812. In so concluding, the Court
recognized that our decision in Newman held “that the unconstitutional
provisions of § 9712(c) and § 9713(c) are not severable … and that the
statutes are therefore unconstitutional as a whole.” Id.; see also
Commonwealth v. Fennell, --- A.3d ---, 2014 WL 6505791 (Pa. Super.
2014) (holding that notwithstanding the fact triggering the imposition of a
mandatory sentence under 18 Pa.C.S.A. 7508 was stipulated to at trial, the
statute was facially unconstitutional under the principles of Newman and
Valentine), Commonwealth v. Wolfe, --- A.3d. ---, 2014 WL 7331915(Pa. Super. 2014) (holding that the mandatory minimum sentencing
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provision of 42 Pa.C.S.A. 9718(a)(1) was unconstitutional even though the
triggering fact was also an element of the offense for which Appellant was
convicted).
Based on the foregoing, we conclude the trial court imposed an illegal
sentence when it sentenced Appellant to a mandatory minimum sentence
pursuant to Section 9712. Accordingly, we vacate the September 12, 2013
judgment of sentence and remand to the trial court, with instructions to
resentence Appellant without consideration of the mandatory minimum
sentence at Section 9712, consistent with this memorandum.4 Additionally,
we deny counsel’s petition to withdraw as counsel.
Judgment of sentence vacated. Case remanded. Petition to withdraw
as counsel denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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4
We vacate the September 12, 2013 sentence in its entirety to avoid
disrupting the sentencing scheme as a whole. See Commonwealth v.
Williams, 997 A.2d 1205, 1210-1211 (Pa. Super. 2010) (holding it is better
practice to vacate a sentence in its entirety where a correction by the Court
of a part of the sentence may alter the sentencing scheme of the trial court).
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