Com. v. Clark, M. ( 2015 )

J-S48008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL JOHN CLARK
Appellant No. 1195 WDA 2014
Appeal from the Judgment of Sentence June 23, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000268-2009
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 26, 2015
Appellant, Michael John Clark, appeals from the judgment of sentence
entered on June 23, 2014, in the Court of Common Pleas of Jefferson
County. Additionally, Clark’s court-appointed counsel, Mark Allan Wallisch,
Esquire, has filed an application to withdraw as counsel pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Clark’s judgment of
sentence and grant counsel’s petition to withdraw.
On December 16, 2009, Clark entered a guilty plea to delivery of a
controlled substance, 35 P.S. § 780-113(a)(30), and was sentenced to five
years in the Jefferson County Intermediate Punishment Program, including 6
months’ partial confinement, with work release in the Jefferson County Jail.
On November 2, 2011, Clark was found to be in violation of the conditions of
J-S48008-15
his probation. The court extended his sentence in the County Intermediate
Punishment program for two years, including six additional months of partial
confinement and 90 days of electronic monitoring. On November 14, 2012,
Clark was again found to be in violation of his probation, after which the
revocation court re-sentenced Clark to two years in the State Intermediate
Punishment Program.
Relevant to the instant proceeding, Clark appeared for yet another
revocation hearing on June 23, 2014, at which it was determined that Clark
had been administratively expelled from the State Intermediate Punishment
Program due to various infractions. See N.T., Revocation Hearing, 6/23/14
at 22. Thereafter, the revocation court revoked Clark’s participation in the
State Intermediate Punishment Program, and resentenced him to four to
fifteen years of incarceration, with credit for time served. Clark filed a
motion to reduce sentence, which the court denied. This timely appeal
followed.
Attorney Wallisch has requested to withdraw and has submitted an
Anders brief in support thereof contending that Clark’s appeal is frivolous.
The Pennsylvania Supreme Court has articulated the procedure to be
followed when court-appointed counsel seeks to withdraw from representing
an appellant on direct appeal.
[I]n 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 arguably believes supports the appeal; (3) set
-2-
J-S48008-15
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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Attorney Wallisch has substantially complied with all of the
requirements of Anders as articulated in Santiago. Additionally, Attorney
Wallisch confirms that he sent a copy of the Anders brief as well as a letter
explaining to Clark that he has the right to proceed pro se or the right to
retain new counsel. A copy of the letter is appended to Attorney Wallisch’s
petition. See Commonwealth v. Daniels, 999 A.2d 5990, 594 (Pa. Super.
2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).
We now proceed to examine the issue counsel sets forth in the Anders
brief.1
Whether the trial court abused its discretion when it revoked
Appellant’s State Intermediate Punishment and re-sentenced
him to serve a sentence of incarceration in a State Correctional
Institution for a minimum of four (4) years to a maximum of
fifteen (15) years with credit for time served for [A]ppellant’s
failure to complete State Intermediate Punishment.
Appellant’s Brief at 4.
Our standard when reviewing a sentence imposed following the
revocation of probation is as follows.
Our review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
____________________________________________
1
Clark has not filed a response to Attorney Wallisch’s petition to withdraw.
-3-
J-S48008-15
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. Also, upon sentencing following
revocation of probation, the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence.
Commonwealth v. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation
omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).
Clark challenges the discretionary aspects of his sentence. In
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc),
we concluded that “this Court’s scope of review in an appeal from a
revocation sentencing includes discretionary sentencing challenges.” Id. at
1034. Therefore, Clark’s claim is properly before us.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[We] 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.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
-4-
J-S48008-15
Clark challenged his sentence in a post-sentence motion and filed a
timely appeal. Clark’s appellate brief also contains the requisite Rule 2119(f)
concise statement. We must now determine whether Smith’s challenge to
the discretionary aspects of his sentence raises a substantial question.
“A substantial question will be found where an appellant 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. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.
2015) (citation omitted). “[W]e cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Christine, 78
A.3d 1, 10 (Pa. Super. 2013) (citation omitted). “We note that a generic
claim that a sentence is excessive does not raise a substantial question for
our review.” Id. (citation omitted).
Clark claims in his Rule 2119(f) statement that the “sentence was
manifestly unreasonable under the circumstances of the case … and that the
[c]ourt’s reasons for the sentence did not justify the severity.” Appellant’s
Brief at 9. Clark does not does not challenge a specific provision of the
sentencing scheme or allege that any particular fundamental norm
underlying the sentencing process was violated. This claim essentially
amounts to a bald allegation that Clark’s sentence was excessive, without
citation to legal authority. The claim fails to raise a substantial question for
-5-
J-S48008-15
our review. Therefore, we will not review Clark’s sentencing claim. See
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 785 (Pa. Super.
2015) (en banc) (“A defendant who fails to raise a substantial question is
not entitled to appellate review of the discretionary aspects of sentence,
even if raised in a post-sentence motion.”).
After examining the issue contained in the Anders brief and after
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel
granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2015
-6-