Com. v. Lane, J. ( 2018 )

J-S32021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEAN EVELYN LANE :
:
Appellant : No. 1694 MDA 2017
Appeal from the Judgment of Sentence September 28, 2017
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000056-2017
BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J. *
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 18, 2018
Appellant Jean Evelyn Lane appeals from the judgment of sentence
imposed after she pled guilty to two counts of delivery of a controlled
substance and one count of driving under the influence (DUI).1 Appellant’s
counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), and its Pennsylvania counterpart, Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.
On July 6, 2017, Appellant entered an open guilty plea to the
aforementioned offenses. On September 28, 2017, the trial court sentenced
Appellant to one to two years’ incarceration for each drug offense and one to
five years’ incarceration for DUI. See Sentencing Order, 10/4/17, at 1. The
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30) and 75 Pa.C.S. § 3802(d)(2), respectively. The
instant DUI offense was Appellant’s third in ten years.
J-S32021-18
sentences were structured consecutively, resulting in an aggregate sentence
of three to nine years’ incarceration. Id.
Appellant timely filed a post-sentence motion for reconsideration on
October 5, 2017. Appellant requested that the trial court impose a shorter
term of incarceration because she “had undergone drug and alcohol treatment
while awaiting sentencing, applied for Treatment Court, but was denied, and
was willing to complete the [State Intermediate Punishment] program if given
that opportunity.” Post-Sentence Mot., 10/5/17. The trial court denied
Appellant’s motion on October 19, 2017.
Appellant filed a timely notice of appeal on November 2, 2017. Both the
trial court and Appellant complied with Pa.R.A.P. 1925. On appeal, counsel
filed an Anders/Santiago brief.
On August 14, 2018, this Court remanded the case for Appellant’s
counsel to file a proper petition to withdraw from representation or an
advocate’s brief. See Commonwealth v. Lane, 1694 MDA 2017, at 1.
Counsel filed a motion for extension of time to file his brief, which we granted
on September 17, 2018.
On September 28, 2018, counsel filed a petition to withdraw and an
Anders/Santiago brief.2 Counsel included a certificate of service indicating
____________________________________________
2 We note that counsel did not file a separate petition to withdraw, but rather,
included his request in the Anders/Santiago brief. As a panel of this Court
explained in Commonwealth v. Fischetti, 669 A.2d 399 (Pa. Super. 1995),
-2-
J-S32021-18
that he furnished to Appellant both the Anders/Santiago brief and a letter
explaining her appellate rights. See Anders/Santiago Brief at 18.
Counsel’s Anders/Santiago brief identifies the following issues on
appeal:
1. Whether the Appellant should have received a Treatment Court
or similar alternative sentence.
2. Whether the sentence of the court was excessive.
Id. at 4. Appellant has not filed a pro se brief or a counseled brief with new,
privately retained counsel.
Because counsel has filed a petition to withdraw pursuant to
Anders/Santiago, we must first address counsel’s petition before reviewing
the merits of the appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa. Super. 2007) (en banc). 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 he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
____________________________________________
[a]lthough we believe the more desirable practice would be to
submit a separate withdrawal request to the court, we . . . treat
counsel’s [request] in the brief itself as such a request.
Consequently, we find that counsel’s motion is properly before this
Court for review[.]
Id. at 400 (internal quotation marks and citation omitted). Accordingly,
we will treat counsel’s petition to withdraw as properly filed.
-3-
J-S32021-18
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted).
Here, counsel stated that after a conscientious examination of the
record, he believes the appeal would be frivolous. See Pet. to Withdraw,
9/28/18, at ¶ 2. Counsel furnished a copy of the Anders/Santiago brief to
Appellant, as well as a letter advising Appellant of her right to “present [her]
own arguments to [this Court herself] or through privately retained counsel.”
Ltr. to Appellant, 9/28/18. Therefore, we conclude that counsel’s petition to
withdraw complies with the procedural dictates of Anders.
We next address whether counsel’s 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
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, counsel has provided a summary of the procedural history and the
relevant facts with appropriate citations to the record. Anders/Santiago
Brief at 5-7. Counsel’s brief also refers to the issues that he believes could
arguably support the appeal. Id. at 8-14. Counsel’s brief states that he
conducted a thorough review of the record and determined that any appeal
would be frivolous, and sets forth his reasons for that conclusion. Id.
-4-
J-S32021-18
Accordingly, counsel has substantially complied with the requirements of
Anders and Santiago.
In his Anders/Santiago brief, counsel identifies two issues relating to
the discretionary aspects of sentencing. First, counsel raises Appellant’s
intended claim that the trial court should have imposed a reduced sentence
or an alternative sentence, such as treatment court or intermediate
punishment, to allow Appellant to continue her efforts towards sobriety and
rehabilitation. Id. at 8.
Counsel also raises Appellant’s intended claim that her sentence is
excessive. Id. at 14. Appellant argues that the court failed to give sufficient
weight to her statement of remorse, or impose a sentence that would
adequately address her drug and alcohol problem. Id. Moreover, Appellant
asserts that her sentence is too harsh given the nature of the offenses. Id.
Before addressing the merits of a challenge to the discretionary aspects
of sentencing, we must determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his [or her] issue; (3) whether [a]ppellant’s brief
includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under the
[S]entencing [C]ode.
Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017) (citation
omitted).
-5-
J-S32021-18
The determination of whether there is a substantial question is made on
a case-by-case basis. Id. at 543. “A substantial question exists where a
defendant raises a plausible argument that the sentence violates a provision
of the sentencing code or is contrary to the fundamental norms of the
sentencing process.” Id. (internal quotation marks and citation omitted).
We have held that an excessive sentence claim, in conjunction with an
assertion that the court failed to consider mitigating factors, raises a
substantial question for our review. See Commonwealth v. Caldwell, 117
A.3d 763, 770 (Pa. Super. 2015) (en banc) (finding a substantial question
where the appellant challenged his sentence as unduly excessive in addition
to the claim that the court failed to consider his rehabilitative needs).
Instantly, Appellant has filed a timely notice of appeal and a post-
sentence motion. Appellant’s counsel did not include a Pa.R.A.P. 2119(f)
statement of the reasons relied upon for allowance of appeal in his brief.
However, where counsel has filed an Anders/Santiago brief, “we do not
consider counsel’s failure to submit a Rule 2119(f) statement as precluding
review of whether [an a]ppellant’s issue is frivolous.” Commonwealth v.
Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015). Appellant has also raised a
substantial question for our review. See Caldwell, 117 A.3d at 770.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.” Rush, 162
A.3d at 544 (citation omitted). “An abuse of discretion requires the trial court
to have acted with manifest unreasonableness, or partiality, prejudice, bias,
-6-
J-S32021-18
or ill-will, or such lack of support so as to be clearly erroneous.” Id. (citation
omitted). “A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.” Id.
(citation omitted).
Moreover, “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010); see also Commonwealth v. Cruz-Centeno, 668 A.2d 536,
545-46 (Pa. Super. 1995), (holding that the combination of a pre-sentence
investigation report (PSI) and standard range sentence, absent more, cannot
be considered excessive or unreasonable). Where “the sentencing judge had
the benefit of a [PSI], it will be presumed that he or she was aware of the
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) (citation omitted).
Here, the trial court relied on a PSI report in fashioning Appellant’s
sentence. See N.T. Sentencing Hr’g, 9/28/17, at 7. The court noted that
Appellant had a “history of poor supervision” while on both probation and
parole. Id. at 9. Although the trial court acknowledged that Appellant
suffered from addiction issues, it ultimately agreed with the Commonwealth’s
-7-
J-S32021-18
argument that because Appellant was a drug dealer,3 “the Treatment Court
program and their policies is not appropriate in this case.” Id. at 9.
Additionally, the trial court considered Appellant’s prior record score, along
with the Sentencing Guidelines, and sentenced Appellant within the standard
range for each offense. See Trial Ct. Op., 1/25/18, at 1.
Therefore, there is no support in the record or law to support Appellant’s
claim that the trial court imposed an excessive sentence or that it failed to
consider Appellant’s rehabilitative needs. Accordingly, the identified claims
are frivolous.
Lastly, our independent review of the record does not reveal any
additional, non-frivolous issues in this appeal. See Commonwealth v.
Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015). Accordingly, we grant
Appellant’s counsel’s petition to withdraw and affirm the judgment of
sentence.
Petition for leave to withdraw as counsel granted. Judgment of sentence
affirmed.
____________________________________________
3 The trial court noted that Appellant was found with fourteen grams of
methamphetamine, fourteen grams of marijuana, and one thousand three
hundred dollars. See N.T. Sentencing Hr’g, 9/28/17, at 9. Appellant is
unemployed, and her sole source of income is social security, from which she
receives a total of seven hundred and twenty-one dollars per month. See id.-8-
J-S32021-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2018
-9-