Com. v. Gonzalez, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JUAN CARLOS GONZALEZ
Appellant No. 2072 MDA 2015
Appeal from the Judgment of Sentence November 16, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002032-2012
CP-36-CR-0002033-2012
BEFORE: DUBOW, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 31, 2016
Appellant, Juan Carlos Gonzalez, appeals from the judgment of
sentence of 17-34 years’ incarceration, imposed after he pled guilty to four
counts of robbery.1 With this appeal, Appellant’s counsel has filed a petition
to withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.
After careful review, we affirm and grant counsel’s petition to withdraw.
Appellant was charged with committing four felony robberies as
follows: on December 8, 2011, by placing a box cutter to the victim’s throat
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
Anders v. California, 386 U.S. 738 (1967).
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(charged at Dkt. No. 2032 of 2012); and between January 4-5, 2012, by
displaying a BB gun at a flower shop, a jewelry store, and a grocery store
(charged under three counts at Dkt. No. 2033 of 2012). N.T., 10/10/12, at
3-4. On October 10, 2012, Appellant appeared before the trial court and
entered his guilty plea. The Commonwealth explained that at the time of
the robberies, Appellant was on parole for burglary, and had a history
involving aggravated assault. Id. at 8. Appellant responded that at 46
years of age, he had been a heroin addict “for about a decade,” expressed
his remorse, and apologized for his crimes. Id. at 9-11.
In imposing Appellant’s aggregate sentence of 17–34 years’
incarceration, the trial court explained:
[Appellant] is 46 years of age which shows sufficient
maturity to understand the significance of his acts.
[Appellant] has a limited education; however, certainly
there’s no indication here that he is incapable of
understanding the rules of society and complying. He is
able to read, write and understand the English language.
He has a somewhat limited work history; however,
there [are] indications that he has held jobs previously so
it’s certainly indicative of the fact that he is capable of
following directions.
[Appellant] does have a significant prior criminal history
from the standpoint of the crime of violence and the
burglary in there, as referenced by the Assistance District
Attorney.
I’ve reviewed the presentence report in detail. I’ve also
considered the guidelines and penalties as authorized by
the legislature.
Finally, I have considered the character and statement
of [Appellant], as well as the arguments of counsel.
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[Appellant], I would agree with the assessment of [the
Commonwealth], there comes a point where one’s
behavior calls for the most serious remedies. You’ve had
opportunities in the past to get your life in order, to deal
with whatever problems are behind this behavior. For
whatever reason, you’ve failed to take advantage of that
and I think at this point the protection of society is what’s
paramount in my mind in terms of this sentence.
N.T., 10/10/12, at 11-12.
Appellant filed a timely direct appeal, after which the Superior Court
affirmed his judgment of sentence. Commonwealth v. Gonzalez (Pa.
Super. Sept. 27, 2013) (unpublished memorandum). On July 17, 2014,
Appellant filed a petition for relief pursuant to the Post Conviction Relief Act
(PCRA), 3 in which he referenced the U.S. Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013). The PCRA court
appointed PCRA counsel on July 23, 2014. Counsel filed an amended PCRA
petition on September 9, 2014, and asserted that Appellant was improperly
sentenced to mandatory minimums in a manner that had been ruled
unconstitutional pursuant to both Alleyne and Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). The Commonwealth, in
its June 18, 2015 response, stated it was “constrained to agree” that
Appellant was entitled to be resentenced because his original sentence under
Dkt. No. 2033 of 2012 included mandatory minimums pursuant to 42
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3
42 Pa.C.S. §§ 9541-9546.
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Pa.C.S. § 9712 of the Judicial Code, relating to offenses committed with
firearms.
The trial court convened a resentencing hearing on November 16,
2015, and clarified that “the sentences that I previously imposed, now that
there is no mandatory sentence involved, are actually within the mitigated
range, if all we use are the guidelines.” N.T., 11/16/15, at 3. The court
additionally stated that it had reviewed correspondence from Appellant, and
“re-reviewed the victim impact statements.” Id. at 4. The court then heard
from Appellant, and re-imposed an aggregate sentence of 17–34 years’
incarceration. The court explained that the sentence was 7–14 years at
Docket No. 2032 of 2012 and, at Docket No. 2033 of 2012, the sentence
was 5–10 years at “each of Counts 1 through 3,” with “Count 2 to be served
consecutively to Count 1 [and] Count 3 to be served concurrently with the
sentence imposed on Count 2.” Id. at 5-6. Appellant filed his timely appeal
on November 19, 2015.
In the Anders brief, counsel raises a single issue for our review:
DID THE LOWER COURT IMPOSE A SENTENCE THAT IS
FREE OF LEGAL ERROR?
Anders Brief at 4.
“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) (internal citation omitted). An Anders brief shall comply with the
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requirements set forth by the Supreme Court of Pennsylvania 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, 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
meet the following obligations to his or her client.
Counsel must also 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 the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,
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“this Court must conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnotes and citations omitted).
In this appeal, we observe that counsel’s February 6, 2016
correspondence to Appellant indicates that counsel provided a copy of the
Anders brief to Appellant and advised Appellant of his right to either retain
new counsel or proceed pro se on appeal, and to raise “any additional
points.”
Further, counsel’s Anders brief complies with prevailing law in that
counsel has provided a procedural and factual summary of the case with
references to the record. Counsel additionally advances relevant portions of
the record that arguably support Appellant’s claims on appeal. Ultimately,
counsel cites his reasons and conclusion that Appellant’s “claim is frivolous,”
and that he “finds no non-frivolous issues to present.” Anders Brief at 9.4
We recognize, as did counsel, that “Pennsylvania law makes clear that
by entering a guilty plea, the defendant waives his right to challenge on
direct appeal all non[-]jurisdictional defects except the legality of the
sentence and the validity of the plea.” Commonwealth v. Lincoln, 72
A.3d 606, 609 (Pa. Super. 2013) (internal citation omitted), appeal denied,
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4
The Commonwealth has declined to file a brief in this matter.
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87 A.3d 319 (Pa. 2014); see also Anders Brief at 6. Appellant has not
challenged the validity of his guilty plea, and we agree with counsel that the
oral colloquy conducted by the trial court at the time of Appellant’s plea was
sufficient to assure that the plea was properly made.
Appellant generally asserts that his sentence is illegal. Anders Brief
at 4, 5. “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) (citations omitted).
Our review of the record confirms that Appellant entered a guilty plea
to four counts of robbery, each with possession or use of a deadly weapon.
At resentencing, the trial court imposed an aggregate sentence of 17-34
years’ incarceration. Counsel correctly observed that Appellant’s sentence
falls “within the maximum penalties permitted by law and . . . within the
recommended guideline sentencing range for each respective charge.”
Anders Brief at 6. As noted above, the trial court explained at resentencing
that “the sentences I previously imposed, now that there is no mandatory
sentence involved, are actually within the mitigated range if all we use are
the guidelines.” N.T., 11/16/15, at 3. The court also stated that it had re-
reviewed information provided at Appellant’s original sentence. Id. at 4.
It is well-settled that a sentence is illegal when it is not statutorily
authorized or it exceeds the statutory maximum sentence. Commonwealth
v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009). Such is not the case
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before us. Appellant pleaded guilty to robbery under 18 Pa.C.S. §
3701(a)(1)(ii), which applies to a person who commits a theft while
“threaten[ing] another with or intentionally put[ting] him in fear of
immediate serious bodily injury.” A robbery under that provision is a felony
of the first degree, id. § 3701(b)(1), and the maximum sentence is 20
years, id. § 1103(1). The trial court imposed a sentence — 7 to 14 years at
Docket No. 2033 of 2012, and 5 to 10 years on each count at Docket No.
2034 of 2012, with the third count to run concurrent to the second — that
was below this statutory maximum. The trial court calculated the standard
sentence ranges for the robbery convictions by applying deadly weapon
sentencing enhancements, and at neither docket did the court impose a
minimum sentence that was more than one-half of the maximum sentence.
The sentence was therefore lawful under 42 Pa.C.S. § 9756(b)(1).
Based on the foregoing, we agree with counsel that the illegal
sentence issue raised by Appellant lacks merit. In addition, we have
reviewed the certified record consistent with Flowers and have discovered
no additional arguably meritorious issues. Accordingly, we grant counsel’s
petition to withdraw, and affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2016
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