Com. v. Graham, K. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KERR MICHAEL GRAHAM
Appellant No. 706 MDA 2014
Appeal from the Judgment of Sentence March 21, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000387-2011
CP-36-CR-0002561-2009
CP-36-CR-002566-2009
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 10, 2014
Appellant Kerr Graham appeals from the judgment of sentence of 6
months to 3 years of incarceration for a probation violation, consecutive to a
term of 1 to 3 years of incarceration for a new simple assault conviction. 1
Graham challenges the aggregate sentence as excessive. Graham’s counsel
has filed an Anders2 brief, together with a petition to withdraw as counsel.
We affirm the judgment of sentence and grant counsel’s petition to
withdraw.
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1
We note Graham’s conviction for simple assault is a misdemeanor of the
first degree because he committed the acts against a child under 12 years of
age and he is older than 18 years of age. See 18 Pa.C.S. § 2702(b)(2).
2
Anders v. California, 386 U.S. 738 (1967).
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On September 7, 2011, Graham entered a guilty plea in the Lancaster
County Court of Common Pleas to the following charges at three separate
docket numbers:3 possession with intent to deliver marijuana,4 simple
assault,5 terroristic threats,6 and stalking.7 That same day, the trial court
sentenced him to 1 to 2 years of incarceration followed by 3 years of
probation on the marijuana conviction, 1 to 2 years of incarceration on the
simple assault conviction, 1 to 2 years of incarceration followed by 3 years of
probation on the terroristic threats conviction, 1 to 2 years of incarceration
followed by 3 years of probation on the stalking conviction – all of which the
trial court imposed concurrently. On February 7, 2014, the Commonwealth
charged Graham with violating his probation imposed under all three docket
numbers based on a simple assault charge that occurred on December 29,
2013. On March 21, 2014, Graham entered a negotiated guilty plea on the
new simple assault charge and appeared for the probation violation hearing.
That same day, the trial court found Graham violated his probation and
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3
Docket number CP-36-CR-0002561-2009 contains the charge of possession
with intent to deliver marijuana. Docket number CP-36-CR-002566-2009
contains the charges of simple assault and terroristic threats. Docket
number CP-36-CR-0000387-2011 contains the charges of stalking.
4
35 P.S. § 780-113(a)(3).
5
18 Pa.C.S. § 2701(a)(3).
6
18 Pa.C.S. § 2706(a)(1).
7
18 Pa.C.S. § 2709.1(a)(2). The Commonwealth charged Graham with eight
counts of stalking. He entered a guilty plea to all eight counts.
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sentenced him on both the new simple assault conviction and his probation
violation, as stated above.
On March 31, 2014, Graham filed a motion to reconsider and modify
sentence, seeking to have the simple assault and probation violation
sentences run concurrently or to reduce the aggregate sentence to 1½ to 4
years, which the trial court denied on April 1, 2014. See Application for
Leave to Withdraw as Counsel, at ¶ 9. On April 21, 2014, Graham filed a
timely notice of appeal and the next day amended the same. On April 21,
2014, the trial court directed Graham to file his statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 12, 2014,
Graham’s counsel timely filed a statement of intent to file an Anders brief
pursuant to Pa.R.A.P. 1925(c)(4) in lieu of a 1925(b) statement.8
To obtain permission to withdraw, counsel must file an Anders brief
that meets the requirements established by our Supreme Court in
Commonwealth v. Santiago.9 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
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
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8
By order dated May 15, 2014, the trial court indicated it did not author or
file a 1925(a) opinion in light of Graham’s counsel filing an Anders brief.
This is permissible. See Commonwealth v. McBride, 957 A.2d 752, 758
(Pa.Super.2008) (trial court opinion is not necessary where counsel files a
1925(c)(4) statement).
9
978 A.2d 349 (Pa.2009).
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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. Counsel must provide the appellant a copy of
the Anders brief with a letter that advises the appellant of his or her 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. Nischan, 928 A.2d 349, 353 (Pa.Super.2007).
Substantial compliance with these requirements is sufficient.
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After
establishing that the antecedent requirements have been met, this Court
must then make an independent evaluation of the record to determine
whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm,
903 A.2d 1244, 1246 (Pa.Super.2006).
Here, counsel filed an Application for Leave to Withdraw as Counsel.
The application states counsel made a conscientious and extensive review of
the entire record, including the probation violation and sentencing transcript,
and the applicable law and determined there were no non-frivolous issues to
be raised on appeal. Application for Leave to Withdraw as Counsel at ¶¶ 14,
15. The application explains counsel notified Appellant of the withdrawal
request, supplied him with a copy of the Anders brief, and explained his
right to proceed pro se or with new, privately-retained counsel to raise any
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additional points or arguments that Appellant believed had merit. See id.;
Letter to Appellant, July 10, 2014, attached to Application for Leave to
Withdraw as Counsel. In the Anders brief, counsel provides a summary of
the facts and procedural history of the case with citations to the record,
refers to evidence of record that might arguably support the issue raised on
appeal, provides citations to relevant case law, and states his conclusion that
the appeal is wholly frivolous and his reasons therefor. Accordingly, counsel
has substantially complied with the requirements of Anders and Santiago.
As Graham filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issues of
arguable merit raised in the Anders brief:
[I.] [The probation violation] Sentence [s]hould have
been Concurrent to Sentence for Simple Assault
[II.] Sentence for his [probation violation] is not a
State Sentence
[III.] [Probation violation] Sentence was [b]ased on
Past Crimes not Current Offense of Simple Assault
[IV.] Excessive [probation violation] Sentence
[V.] As the Former District Attorney, Judge Totaro
should not have [s]entenced Mr. Graham
Appellant’s Brief at 9, 10, 12. Graham’s second, third, and fifth issues were
not raised at sentencing, in his post-sentence motion, or in his counsel’s
1925(c)(4) statement. Graham’s third and fifth issues are discretionary.
Accordingly, Graham has waived these issues by failing to preserve them at
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the trial court level. See Commonwealth v. Colavita, 993 A.2d 874, 891
(Pa.2010) (“This Court has consistently held that an appellate court cannot
reverse a trial court judgment on a basis that was not properly raised and
preserved by the parties. Where the parties fail to preserve an issue for
appeal, the Superior Court may not address that issue sua sponte”).
Graham’s second issue is an issue of law that implicates the legality of his
sentence. This Court may review challenges to the legality of a sentence sua
sponte. See Commonwealth v. Randal, 837 A.2d 1211, 1214
(Pa.Super.2003). Therefore, Graham has not waived this issue.
In his second issue, Graham argues his sentence of 6 months to 3
years of incarceration for his probation violation is not a state sentence, and
thus he should not serve his sentence in a state correctional facility. This
lacks merit.
A claim that implicates the legality of a sentence presents a pure
question of law. Thus, our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Foster, 17 A.3d 322, 340 n. 13
(Pa.2011).
Section 9762 of the Judiciary and Judicial Procedure Code provides:
***
(b) Sentences or terms of incarceration
imposed after a certain date.—All persons
sentenced three or more years after the effective
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date of this subsection[10] to total or partial
confinement shall be committed as follows:
(1) Maximum terms of five or more years shall
be committed to the Department of Corrections
for confinement.
42 Pa.C.S.A. § 9762(b)(1).
Regarding the aggregation of sentences for purposes of determining
the term of incarceration, Section 9762 further explains:
(f) Aggregation.--For purposes of this section, the
sentences or terms of incarceration shall mean the
entire continuous term of incarceration to which a
person is subject, notwithstanding whether the
sentence is the result of any of the following:
(1) One or more sentences.
(2) Sentences imposed for violations of probation or
intermediate punishment.
(3) Sentences to be served upon recommitment for
violations of parole.
(4) Any other manner of sentence.
42 Pa.C.S.A. § 9762(f).
Since a term of incarceration is defined by statute to include both “one
or more sentences” and specifically includes “sentences imposed for
violations of probation,” we credit both Graham’s simple assault and
probation violation sentences in calculating whether he has been committed
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10
This subsection became effective on November 24, 2008, prior to the
imposition of any sentences in this matter. See 42 Pa.C.S. 9762. Since the
trial court imposed its sentence on March 21, 2014, more than three years
elapsed since subsection (b) became effective. Accordingly, it applies.
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to a maximum term of 5 or more years. See 42 Pa.C.S.A. § 9762(f), (a)(1).
He has. Graham stands to serve a maximum of 3 years of incarceration for
his simple assault conviction. Thereafter, Graham may serve a maximum of
3 years pursuant to the terms of the probation violation sentence.
Accordingly, Graham has been committed to a maximum term of 6 years.
Section 9762(a)(1), therefore, refutes Graham’s argument and mandates
that he serve the sentence in a state correctional facility. See 42 Pa.C.S.A. §
9762(a)(1).
Graham’s remaining issues challenge the discretionary aspects of his
probation violation sentence. “Challenges to the discretionary aspects of
sentencing do not entitle a petitioner to review as of right.”
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before
this Court can address such a discretionary challenge, an appellant must
comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying 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.
Allen, 24 A.3d at 1064.
Graham filed a timely notice of appeal, and preserved his issues in a
motion for reconsideration of sentence. Graham has failed to include the
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requisite Rule 2119(f) statement. See Appellant’s Brief, generally. “A failure
to include the Rule 2119(f) statement does not automatically waive an
appellant's argument; however, we are precluded from reaching the merits
of the claim when the Commonwealth lodges an objection to the omission of
the statement.” Commonwealth v. Bruce, 916 A.2d 657, 666
(Pa.Super.2007) (citing Commonwealth v. Hudson, 820 A.2d 720, 727
(Pa.Super.2003)). Here, the Commonwealth has not filed a brief and thus
has not objected to Graham’s omission of the Rule 2119(f) statement.
Accordingly, we decline to find waiver based on these technical defects. See
Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa.Super.2013) (declining
to find waiver based on inadequate Rule 2119(f) statement since the
Commonwealth did not object). We now determine whether he has raised a
substantial question for review and, if so, proceed to a discussion of the
merits of the claim. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki,
522 A.2d 17 (Pa.1987).
“A substantial question will be found where the defendant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the [sentencing] code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v.
Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see
also 42 Pa.C.S.A. § 9781(b). “We determine whether a particular case
raises a substantial question on a case-by-case basis.” Id. A bald or
generic assertion that a sentence is excessive does not, by itself, raise a
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substantial question justifying this Court’s review of the merits of the
underlying claim. Id.; see also Commonwealth v. Harvard, 64 A.3d 690,
701 (Pa.Super.2013). In the context of a challenge to consecutive
sentences, “a defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case involves
circumstances where the application of the guidelines would be clearly
unreasonable [based on the criminal conduct that occurred in the case],
resulting in an excessive sentence; however, a bald claim of excessiveness
due to the consecutive nature of a sentence will not raise a substantial
question.” Commonwealth v. Dodge, 77 A.3d 1263, 1270
(Pa.Super.2013).
Graham first contends his sentence was excessive because “society did
not need to be protected from him [since] his crimes were not done to
society but against people he knew.” Appellant’s Brief at 11. He next argues
that the sentence was excessive because “the [District Attorney’s Office] had
agreed that his [probation violation] sentence would run concurrent with his
. . . sentence for simple assault.” Id. at 9. Both contentions fail to raise a
substantial question and, even if either did, the claims would fail on the
merits.
Graham acknowledges that he makes only a generic claim of
excessiveness because the trial court could have imposed a consecutive
sentence of incarceration for each conviction upon which his probation was
revoked. See Appellant’s Brief at 11-12 (“[T]he court could have imposed a
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sentence of one and one-half to three years on each of the remaining
counts, and need not have imposed these [probation violation] sentences
concurrently”). Graham concedes that, as such, “there simply is no
argument under these circumstances that this sentence was excessive.” Id.
at 12. He is correct.
Moreover, after independent review, we agree that Appellant’s
discretionary aspects of sentence claim is wholly frivolous.
If this Court grants appeal and reviews the sentence,
the standard of review is well-settled: sentencing is vested
in the discretion of the trial court, and will not be disturbed
absent a manifest abuse of that discretion. An abuse of
discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice,
bias or ill will. It is more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Our review of the sentencing transcript reveals that the trial court did
not abuse its discretion. Instead, the trial court imposed a sentence that
was consistent with the protection of the public, took into account the
gravity of the offense as it related to the impact on the life of the victim and
on the community, and considered Appellant’s rehabilitative needs, as
required by 42 Pa.C.S.A. § 9721(b). Contrary to Graham’s assertions that
the crime was against people with whom he is familiar and thus not against
society, the Commonwealth prosecutes crimes because they are crimes
against society. See Black's Law Dictionary (9th ed. 2009) (“Understanding
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that the conception of Crime, as distinguished from that of Wrong or Tort
and from that of Sin, involves the idea of injury to the State of collective
community. . .”) (quoting Henry S. Maine, Ancient Law 320 (17th ed.
1901)). Graham concedes in his brief that his “victims were members of
society.” This concession refutes the notion that Graham’s personal
relationship with the victims made his crimes less reprehensible. Appellant’s
Brief at 12.
Immediately preceding sentencing, the trial court explained its reasons
for imposing a consecutive sentence of incarceration for his violation of
probation as follows:
[H]e has 19 prior convictions. He has 14 prior
violations that he has come before the [c]ourt for
violating his probation and/or parole. Nothing seems
to work for Mr. Graham to get the message that he
shouldn’t be out there committing crimes. So there is
no way I can make this concurrent.
N.T. 3/21/2014 p. 19. See also Appellant’s Brief at 12. The trial court also
noted Graham’s “horrendous” prior record score, “the number of violations
and the seriousness of the crimes.” N.T. 3/21/2014 p. 18. The trial court
then revoked Graham’s probation on all counts and sentenced Graham
within the sentencing alternatives that were available at the time of the
original sentence, which did not exceed its statutory maximum. 11 We find
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11
When sentencing an offender to a term of imprisonment following the
revocation of probation, the trial court has available the entire gamut of
sentencing alternatives that were available at the time of the offender's
(Footnote Continued Next Page)
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the sentencing court placed adequate reasons for its sentence on the record
and acted within its discretion. See 42 Pa.C.S. § 9721(b).
Graham’s contention that the consecutive nature of his probation
violation and simple assault sentences upset a negotiated plea agreement
with the District Attorney’s Office, as his counsel concedes, “is simply not
true.” Appellant’s Brief at 9. Counsel explained: “During the oral guilty plea
colloquy with [] Graham, the [trial] court specifically inquired as to whether
there was any agreement with regard to the [probation violation] sentence
and the sentence for simple assault, and defense counsel informed the [trial]
court that there was not.” Appellant’s Brief at 9. Our independent review of
the trial transcript confirms the same. See N.T. 3/21/2014, p. 9. As this
claim contains no factual basis, it is devoid of merit.
Given the foregoing, Graham has not raised a substantial question
regarding the appropriateness of his sentence. Further, even if he had
raised a substantial question for review, his claim would fail on the merits.
Finally, our independent review of the record has revealed no non-frivolous
_______________________
(Footnote Continued)
initial sentencing. See 42 Pa.C.S.A. § 9771(b); Commonwealth v.
Bowser, 783 A.2d 348, 349-50 (Pa.Super.2001), appeal denied, 798 A.2d
1286 (Pa.2002). The trial court is limited, however, by the sentencing
alternatives that were available at the time of the original sentencing and
may not exceed the maximum sentence that could have originally been
imposed. See Commonwealth v. Harrison, 398 A.2d 1057, 1059 n. 2
(Pa.Super.1979).
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claims that Graham could have raised, and we agree with counsel that this
appeal is wholly frivolous. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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