Com. v. Gillespie, B. ( 2016 )


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  • J-S47036-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    BERNARD R. GILLESPIE
    Appellant                   No. 1502 MDA 2015
    Appeal from the Judgment of Sentence August 5, 2015
    In the Court of Common Pleas of Lycoming County
    Criminal Division at No(s): CP-41-CR-0000692-2011
    BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.
    MEMORANDUM BY LAZARUS, J.:                            FILED AUGUST 09, 2016
    Bernard R. Gillespie appeals from the judgment of sentence, entered
    by the Court of Common Pleas of Lycoming County, following the revocation
    of his sentence of intermediate punishment for criminal trespass.1 Gillespie’s
    counsel also seeks to withdraw pursuant to the dictates of Anders v.
    California, 
    386 U.S. 738
    (1967), Commonwealth v. Santiago, 
    978 A.2d 349
    (Pa. 2009), and Commonwealth v. McClendon, 
    434 A.2d 1185
    (Pa.
    1981).     Upon review, we grant counsel’s petition to withdraw and affirm
    Gillespie’s judgment of sentence.
    The trial court stated the facts of this matter as follows:
    Gillespie was initially charged with burglary, criminal trespass
    and related charges. On February 14, 2012, he pled guilty to
    ____________________________________________
    1
    18 Pa.C.S. § 3503(a).
    J-S47036-16
    Count 2, criminal trespass a felony of the second degree
    pursuant to a negotiated plea agreement for probation. . . . On
    March 27, 2012, Gillespie was sentenced to three years of
    probation with conditions that included, but were not limited to,
    Gillespie undergoing a drug and alcohol assessment and
    completing any recommended treatment.
    On April 25, 2013, under a different docket number, Gillespie’s
    parole was revoked and he was recommitted to serve six
    months. Gillespie had relapsed by using heroin. No further
    action was taken on this case.
    On September 12, 2013, Gillespie was again before the court.
    The court found probable cause to believe that Gillespie violated
    his supervision under five separate cases, including this one.
    Gillespie again was alleged to have used heroin.
    ...
    The court revoked his probation, but resentenced Gillespie to
    serve three years [of Intermediate Punishment], and included as
    a condition of his supervision that he successfully complete the
    Lycoming County Drug Court program.
    [Gillespie relapsed several more times, such that on] April 8,
    2015, Gillespie was removed from the Drug Court program.
    Trial Court Opinion, 2/3/16, at 2-3.
    Following Gillespie’s removal from the drug court program, the trial
    court sentenced him to three to six years’ incarceration on August 5, 2015.
    Gillespie filed a timely post-sentence motion, which the court denied by
    order entered August 13, 2015. Thereafter, Gillespie filed a timely notice of
    appeal and court-ordered concise statement of errors complained of on
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    appeal pursuant to Pa.R.A.P. 1925(b).2 On appeal, Gillespie asserts that his
    sentence is excessive.
    Counsel has a filed a petition to withdraw pursuant to Anders,
    McClendon, and Santiago.            “When faced with a purported Anders brief,
    this Court may not review the merits of the underlying issues without first
    passing on the request to withdraw.” Commonwealth v. Rojas, 
    874 A.2d 638
    , 639 (Pa. Super. 2005). Based upon Anders and McClendon, counsel
    seeking to withdraw must:           1) petition the court for leave to withdraw,
    certifying that after a thorough review of the record, counsel has concluded
    the issues to be raised are wholly frivolous; 2) file a brief referring to
    anything in the record that might arguably support an appeal; and 3) furnish
    a copy of the brief to the appellant and advise him of his right to obtain new
    counsel or file a pro se brief raising any additional points that the appellant
    deems worthy of review.         Commonwealth v. Hernandez, 
    783 A.2d 784
    ,
    786 (Pa. Super. 2001). Additionally, in Santiago, our Supreme Court held
    that counsel must state the reasons for concluding the client’s appeal is
    frivolous. 
    Santiago, 978 A.2d at 361
    .
    ____________________________________________
    2
    The trial court ordered Gillespie to file a Rule 1925(b) statement within 21
    days of September 4, 2015. Gillespie’s counsel filed a petition seeking an
    extension of time to file a Rule 1925(b) statement, asserting that she did not
    receive a copy of the order until the deadline had passed. The petition was
    granted and counsel filed a timely nunc pro tunc Rule 1925(b) statement on
    October 15, 2015.
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    Instantly, counsel’s petition to withdraw states that she has examined
    the record and has concluded that the appeal is wholly frivolous. Counsel
    has also filed a brief in which she repeats the assertion that there are no
    non-frivolous issues to be raised and provides her reasoning for concluding
    the appeal is frivolous.       Counsel has notified Gillespie of the request to
    withdraw and has provided him with a copy of the brief and a letter
    explaining his right to proceed pro se or with privately retained counsel
    regarding any other issues he believes might have merit. Accordingly, we
    find   that   counsel    has    substantially    complied     with    the     procedural
    requirements for withdrawal.
    Once counsel has satisfied the above requirements, this Court
    conducts its own review of the proceedings and renders an independent
    judgment      as   to   whether   the   appeal    is,   in   fact,   wholly    frivolous.
    Commonwealth v. Wright, 
    846 A.2d 730
    , 736 (Pa. Super. 2004).
    Gillespie’s sole contention is that his sentence is excessive, which
    presents a challenge to the discretionary aspects of sentencing.                      An
    appellant is not entitled to review of the discretionary aspects of sentencing
    unless he or she satisfies a four-part test:
    (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.
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    Commonwealth v. Caldwell, 
    117 A.3d 763
    , 768 (Pa. Super. 2015) (en
    banc) (quoting Commonwealth v. Allen, 
    24 A.3d 1058
    , 1064 (Pa. Super.
    2011)).
    Here, Gillespie filed a timely notice of appeal and preserved this issue
    in a motion to modify sentence. Gillespie’s brief fails to include a separate
    concise statement of the reasons relied upon in challenging the discretionary
    aspects of his sentence pursuant to Pa.R.A.P. 2119(f).        However, the
    Commonwealth has not objected to the lack of a separate statement
    pursuant to Rule 2119(f). See Commonwealth v. Stewart, 
    867 A.2d 589
    ,
    592 (Pa. Super. 2005) (declining to find waiver of discretionary aspects of
    sentencing issue where Commonwealth did not object to lack of Rule 2119(f)
    statement).   Thus, we turn to whether Gillespie presents a substantial
    question that his sentence is not appropriate under the Sentencing Code.
    Gillespie’s claim is limited to the argument that the sentence he
    received was longer than he expected and he has “changed during his time
    in prison.” Brief for Appellant, at 11. This assertion neither indicates how
    the sentence specifically violates the Sentencing Code nor how it is contrary
    to a fundamental norm of the sentencing process. See Caldwell, supra at
    768; see also Commonwealth v. Fisher, 
    47 A.3d 155
    , 159 (Pa. Super.
    2012) (“[A] bald assertion that a sentence is excessive does not by itself
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    raise a substantial question justifying this Court’s review of the merits of the
    underlying claim.”). Thus, Gillespie fails to raise a substantial question.3
    Based upon the foregoing and our independent review of the record,
    we find Gillespie’s appeal to be meritless.         Therefore, we affirm the
    judgment of sentence and grant counsel’s petition to withdraw.
    Judgment of sentence affirmed. Petition to withdraw granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/9/2016
    ____________________________________________
    3
    Had Gillespie raised a substantial question, he nevertheless would not be
    entitled to relief. In fashioning Gillespie’s sentence, the court specifically
    noted Gillespie’s repeated relapses and inability to rehabilitate through
    probation, intermediate punishment, drug court, or other rehabilitation
    programs. Thus, the sentence was appropriate under the circumstances.
    See Commonwealth v. Naranjo, 
    53 A.3d 66
    , 73 (Pa. Super. 2012) (we
    cannot disturb sentence within statutory limits unless it is unreasonable).
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