Com. v. Selner, G. ( 2016 )

J-S42031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GREG SELNER
Appellant No. 1628 WDA 2015
Appeal from the Judgment of Sentence September 16, 2015
in the Court of Common Pleas of Jefferson County Criminal Division
at No(s): CP-33-CR-0000500-2013
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 16, 2016
Appellant, Greg Selner, appeals from the judgment of sentence
entered in the Jefferson County Court of Common Pleas following the
revocation of his probation. Appellant’s counsel (“Counsel”) has filed a
petition to withdraw and an Anders/Santiago1 brief. We affirm and grant
Counsel’s petition to withdraw.
On January 3, 2014, Appellant originally entered a negotiated plea to
one count of receiving stolen property.2 That same day, the trial court
*
Former Justice specially assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
2
18 Pa.C.S. § 3925(a). Appellant stole a laptop computer and other items
from the home of his son’s mother. Aff. of Probable Cause, 6/5/13, at 1.
The offense was graded as a first-degree misdemeanor.
J-S42031-16
imposed an agreed-upon sentence of five years’ probation. Sentencing
Order, 1/3/14.
According to the Jefferson County Adult Probation Department,
Appellant was arrested in Clearfield County on February 15, 2014, for theft
by unlawful taking. On May 6, 2014, Appellant was again arrested in
Clearfield County for multiple counts of forgery and theft by unlawful taking,
as well as one count of receiving stolen property. Appellant pleaded guilty to
the Clearfield County charges on April 21, 2015, and the Clearfield County
court imposed an aggregate sentence of three to twelve months’
imprisonment with a one-year probationary tail.
The Jefferson County Probation Department filed a petition to revoke
Appellant’s probation on May 18, 2015, based on the new charges in
Clearfield County. On June 5, 2015, Counsel entered his appearance on
behalf of Appellant. Appellant admitted the probation violation on June 17,
2015, and the trial court ordered a psychiatric evaluation for sentencing.
The trial court conducted a sentencing hearing on September 16,
2015. After reviewing the court-ordered psychiatric evaluation,3 the court
determined that Appellant was a threat to the community and the county
lacked adequate resources to address his mental health issues. N.T.,
9/16/15, at 6-7. The court revoked Appellant’s probation and sentenced him
3
A copy of the psychiatric evaluation was not included in the record
transmitted to this Court.
-2-
J-S42031-16
to two to five years’ imprisonment in a state correctional facility, to run
consecutively to the Clearfield County sentence. Id. The court set a RRRI
minimum of 18 months and ordered credit for 129 days
On September 30, 2015, Appellant filed a motion to modify the
sentence nunc pro tunc. The trial court denied the motion “in its entirety”
on the following day. Order, 10/1/16. Appellant timely appealed within
thirty days of the sentence following revocation and complied with the
court’s order to submit a Pa.R.A.P. 1925(b) statement. The court filed a
responsive Rule 1925(a) opinion suggesting that its sentence was proper.
Appellant’s counsel has filed a petition to withdraw and an
Anders/Santiago brief that identifies the following issue for review:
Whether the trial court abused its discretion when it
revoked Appellant’s probation/parole and re-sentenced him
to serve a sentence of incarceration in the State
Correctional Institution for a minimum of two (2) years to
a maximum of five (5) years with credit for time served for
[A]ppellant’s violation of probation/parole[?]
Anders/Santiago Brief at 4. Appellant has not filed an additional brief.
Preliminarily, we must assess whether counsel’s petition and brief
meet the procedural requirements for seeking leave to withdraw.
Commonwealth v. Zeigler, 112 A.3d 656, 659 (Pa. Super. 2015). When
requesting to leave to withdraw,
[c]ounsel 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
-3-
J-S42031-16
the right to retain private counsel or raise additional
arguments [pro se] that the defendant deems worthy of
the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted).
Additionally, our Supreme Court has set forth the following
requirements for the brief accompanying counsel’s petition to withdraw:
[C]ounsel 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.
Instantly, Counsel has stated that he made a conscientious
examination of the record and concluded an appeal is frivolous. See Mot. to
Withdraw, 3/2/16, at 1-2. Counsel has provided a copy of his
Anders/Santiago brief to Appellant and advised him of his rights to raise
any additional points in this appeal by proceeding pro se or with private
counsel. See id. at 2; Letter from Counsel to Appellant, 3/1/16. Counsel’s
brief has set forth the reasons for his conclusion that the appeal is frivolous.4
4
Counsel explained:
-4-
J-S42031-16
See Anders/Santiago Brief at 9. Thus, Counsel has complied with the
procedural requirements for seeking withdrawal, and we will review
Counsel’s assessment that Appellant’s intended sentencing claims are
frivolous. See Zeigler, 112 A.3d at 659.
Counsel outlines five arguments. First, the sentence was “manifestly
unreasonable.” Anders/Santiago Brief at 8. Second, the court’s statement
of reasons for the sentence imposed was not adequate. Id. at 9. Third,
Appellant explained that he was not taking his medications when he
committed the Clearfield County offenses and needed the money to
purchase his medications. Id. at 8. Fourth, Appellant averred that he would
not pose a threat to the community if he took his medications. Id. Fifth, a
Counsel . . . disagrees [with Appellant’s arguments],
and avers that the conviction for new charges justified the
sentence imposed.
. . . the sentence imposed should call for
confinement that is consistent with the protection of
the public, the gravity of the offense as it relates to
the impact of the victim and on the community, and
the rehabilitative needs of the defendant. . . . .
[42 Pa.C.S. § 9721(b)]
Counsel . . . further avers that the sentence was not
manifestly unreasonable given the gravity of the
underlying offense and the violations, and the
rehabilitative needs of [A]ppellant.
Anders/Santiago Brief at 9. Although set forth in boilerplate fashion, we
find Counsel’s stated reasons are adequate under the circumstances of this
appeal.
-5-
J-S42031-16
county sentence would have been sufficient, and the court failed to consider
local alternatives for Appellant’s rehabilitation. Id.
It is well settled that
[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to appellate
review as of right. Prior to reaching the merits of a
discretionary sentencing issue:
[W]e conduct a four part analysis to
determine: (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, 42 Pa.C.S.[ ] §
9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and punctuation omitted).
Appellant adequately preserved these issues and arguments at the
sentencing hearing, in his motion to modify nunc pro tunc,5 and in his Rule
5
Although Appellant’s motion to modify his sentence was not timely filed,
we discern no basis suggesting that the trial court intended to deny his
request to accept the motion nunc pro tunc.
-6-
J-S42031-16
1925(b) statement.6 However, Appellant’s bald claims generally do not
raise substantial questions warranting further review. See Commonwealth
v. Haynes, 125 A.3d 800, 807-08 (Pa. Super. 2015), appeal denied, 140
A.3d 12 (Pa. 2016)
In any event, we note that:
[t]he imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial
court, which, absent an abuse of that discretion, will not be
disturbed on appeal. An abuse of discretion is more than
an error in judgment—a sentencing court has not abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (citation
omitted).
Instantly, the trial court set forth its reasons for the sentence during
the following exchange:
THE COURT: [to Appellant: D]o you wish to make a
statement?
[Appellant]: Sir, I wasn’t on my meds. That’s a very
big deal with someone with mental health issues. I made
bad choices because of that. I have nobody to blame but
myself, but I ask you to look into that, that those things
had a huge impact on what I did. They wouldn’t have
happen if I would have been on my meds. I can go times
without doing anything. And it doesn’t excuse what I did
but explains why it happened. And I just ask you to give
me grace and give me another shot. I can do this.
6
Additionally, Counsel included in his Anders/Santiago brief an
abbreviated Pa.R.A.P. 2119(f) statement.
-7-
J-S42031-16
THE COURT: Well, looking at the psychological
evaluation, which I went through in detail, actually even
before you were brought back, because it was mailed to
me when you were on your way back, you’re having
hallucinations, auditory hallucinations, and psychiatrically
hospitalized seven times. Visual hallucinations, things that
I wasn’t expecting and things that I don’t believe our
mental health community in the county or in this area has
the ability to care for on a local level.
So you did commit new charges. That calls for a total
confinement sentence. I am going to revoke your
probation and sentence you to no less than—
[Appellant]: Can I say one more thing, sir? My ex-wife
passed away in July. I have a daughter who needs me
right now, and that has been a problem.
THE COURT: Under your present mental state, you can’t
care for her. So two to five years consecutive to Clearfield
with RRRI eligible at 18 months. And I’m going to
recommend in the order that you be placed in a
therapeutic community and in the Department of
Corrections.
[Appellant]: The state doesn’t have the where with all
[sic], the care for me either at the jail.
THE COURT: Well, at least they’ll keep the community
safe, which I cannot ensure. You committed new crimes.
You’re making your excuses.
[Appellant]: I’m not making excuses, sir.
THE COURT: Yes, you are. Don’t say you didn’t. That’s
what you wanted.
N.T. at 5-7.
In its Pa.R.A.P. 1925(a) opinion, the trial court further explained:
As the record reflects, [Appellant] received a new
conviction while on probation in Jefferson County, and
pursuant to 42 Pa.C.S.[ ] § 9771(c), that fact alone
-8-
J-S42031-16
warranted a sentence of total incarceration. His
conviction, however, was not the only relevant
consideration.
Aware that [Appellant]’s mental health was an issue,
the [c]ourt ordered a psychiatric and psychological
evaluation to help it determine the most appropriate
sentence in this case, and as Chief Probation Officer [Paul]
Ruffner observed, it revealed that [Appellant]’s condition
was more severe than anyone had realized—more severe,
in fact, than what our local mental health community could
adequately treat. By his own admission, it had already led
him to commit theft-related offenses other than that for
which he was being supervised in this county, though he
attempted to mitigate his culpability by claiming that he
committed them “because he was in need of money and
couldn’t afford his medication [and] was not on his
medication at the time.” He would not have committed
them, he claimed, had he been taking his medication.
Even were the [c]ourt to accept that [Appellant]’s then
untreated mental illness was to blame for his decisions to
commit the offenses underlying his February 15, 2014 and
May 6, 2014 arrests, that would not change the fact that
our local mental health community’s inability to effectively
treat his illness would make him a continuing threat to our
citizens. Nor would it change the fact that he was more
interested in using his diagnosis as an excuse for his
criminal conduct than in receiving the treatment that
would alleviate his psychiatric symptoms. While
[Appellant] would doubtlessly disagree with that
assessment, the proof lay in the fact that he clearly used
the proceeds of the February arrest for something other
than the medication he claimed would have curbed his
criminality. The [c]ourt is less than confident, therefore,
that he would continue to comply with the limited
treatment regimen locally available to him if given the
opportunity. Consequently, the [c]ourt is less than
confident that the community would be safe were
[Appellant] not committed to a facility where he could
receive the necessary mental health services or, even if he
chose to decline those services, would be unable to further
victimize society.
-9-
J-S42031-16
Trial Ct. Op., 12/15/15, at 1-2.
Thus, we agree with Counsel that there is no record support for
Appellant’s assertion that the trial court’s statement of reasons for the
sentence was inadequate. Moreover, the trial court expressly found that
Appellant was using his mental health condition as an excuse and Jefferson
County did not have adequate resources to address Appellant’s mental
health condition while keeping the community safe. In light of the
foregoing, we discern no basis in the record or the law supporting
Appellant’s request for relief based on an excessive or manifestly
unreasonable sentence or an abused its discretion by the trial court.
Accordingly, having reviewed the claims and arguments set forth in
Counsel’s Anders/Santiago brief in light of the record, we are constrained
to agree that this appeal is frivolous. As our independent review reveals no
other non-frivolous issues, we affirm the judgment of sentence and grant
Counsel’s petition to withdraw.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2016
- 10 -