Com. v. Gates, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN RUSSELL GATES
Appellant No. 1255 MDA 2013
Appeal from the Judgment of Sentence May 17, 2013
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000415-2012
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 20, 2014
John Russell Gates appeals from his judgment of sentence, entered in
the Court of Common Pleas of Huntingdon County, after entering an open
guilty plea to nine counts of theft by failure to make required disposition of
funds received (F-3).1 Gates was sentenced to an aggregate term of 54 to
-12 years) imprisonment2 and ordered to pay restitution to
his victims in the amount of $455,158.31. Counsel has also filed a brief
seeking to withdraw from representing Gates on appeal, pursuant to
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1
18 Pa.C.S. § 3927(a).
2
The trial judge found Gates eligible for the Recidivism Risk Reduction
Incentive (RRRI) program so his minimum sentence was reduced to 45
months in prison.
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Anders/McClendon/Santiago.3 After careful consideration, we affirm
Gates, a former Huntingdon County attorney,4 allegedly failed to
distribute over $455,000 of funds from nine clients and their families
between April 1, 2011 and December 31, 2011. On February 13, 2013,
Gates entered a guilty plea in exchange for the Commonwealth agreeing to
nolle prosse 26 remaining charges. After a presentence investigation report
was ordered and reviewed by the trial judge,5 Gates was sentenced to eight
consecutive sentences of 6 to 18 months in prison, with a two-year
probationary tail. As a condition of his sentence, Gates was ordered to pay
his victims restitution in the amount of $455,158. Gates filed a timely
motion for reconsideration, which was denied after a hearing. This timely
appeal was subsequently filed.
When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
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3
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009).
4
Gates was disbarred, effective February 8, 2012.
5
In November 2013, the sentencing judge, the Honorable Timothy S.
Searer, lost his bid for reelection. Because Judge Searer had not filed a
Pa.R.A.P. 1925(a) opinion at the time of his leaving office, the only record
sentencing hearing.
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withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005). In order for counsel to withdraw from an appeal pursuant to
Anders, certain requirements must be met. 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.
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).
that he has made a conscientious examination of the record and concluded
the appeal is wholly frivolous. Counsel indicates he supplied Gates with a
copy of the brief and a letter explaining his right to proceed pro se or with
privately-retained counsel, to raise any other issues he believes might have
merit. Counsel also has submitted a brief, setting out in neutral form the
issue Gates wished to raise on appeal. Thus, counsel has substantially
complied with the Anders/McClendon/Santiago requirements.
Because counsel has satisfied the procedural requirements for
withdrawal, this Court must now conduct its own review of the proceedings
and render an independent judgment as to whether the appeal is, in fact,
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wholly frivolous. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa.
Super. 2004).
In his pro se brief on appeal, Gates raises twelve issues. Several of
legal requirements showing that his conduct proved all the elements of the
offenses for which he pled guilty and that the colloquy failed to set forth
sufficient facts to support the criminal elements. Because Gates failed to
include these issues in his timely filed post-sentence motion and did not
object during the colloquy or file a motion to withdraw his plea, technically
these claims are waived. See Pa.R.Crim.P. 702(B)(1)(a)(i); see also
Issues raised before or during trial shall be deemed
preserved for appeal whether or not the defendant elects to file a post-
these issues waived, we would conclude that they are frivolous. See
Commonwealth v. Hernandez, 783 A.2d 784 (Pa. Super. 2001) (even
where cla
Pa.R.A.P. 1925(b) statement, under Anders appellate court must review
claims on merits to determine if counsel is permitted to withdraw).
colloquies demonstrates
that the judge complied with the applicable rules regarding the tender of
pleas and plea agreements. See generally Pa.R.Crim.P. 590. Specifically,
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Judge Searer discussed the nature of the charges brought against Gates,
see N.T. Oral Guilty Plea, 2/13/13, at 2-3, and the deputy attorney general
factual bases of his plea, id. at 4-8. Accordingly, we find that the oral plea
colloquy sufficiently set forth Gat
the offenses for which he pled guilty and that there was a sufficient factual
basis for his plea.
6
When the discretionary aspects of a sentence7 are questioned, an appeal is not
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6
Our standard of review when a defendant challenges the discretionary
aspects of a sentence is very narrow. We will reverse only where the
defendant has demonstrated a manifest abuse of discretion.
Commonwealth v. Hermanson, 674 A.2d 281, 283 (Pa. Super. 1996).
7
We recognize that there are several types of guilty pleas: (1) an open plea
(where there is an agreement as to charges to be brought, but no
agreement with regard to sentence), (2) a hybrid plea (where agreement did
not include specific term of imprisonment, but placed limitations on sentence
(i.e., only certain charges would run consecutively) and also specified
charges), and (3) a negotiated plea (where parties bargain for a specific
sentence as well as charges to be brought). Commonwealth v. Dalberto,
guilty plea indicates he is limited to raising four specific issues on appeal,
see
plea . . . [an] appeal from a guilty plea is limited to . . . guilty plea was not
knowing, intelligent and voluntary; that the Court did not have jurisdiction to
t be
restricted from raising discretionary aspect of sentencing claims on appeal.
See Dalberto
discretionary aspects of sentencing may be challenged after a guilty plea is
(Footnote Continued Next Page)
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guaranteed as of right. Commonwealth v. Moore, 617 A.2d 8, 11 (Pa.
Super. 1992). Rather, two criteria must be met before an appeal may be
taken. First, the appellant must
the reasons relied upon for allowance of appeal with respect to the
presented.
42 Pa.C.S. § 9781(b); Moore, 617 A.2d at 11. An appellate court will find a
aggrieved party can articulate clear reasons why the sentence imposed by the
trial court compromises the sentencing scheme as a whole. Commonwealth
v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (Pa. 1987).
First, Gates claims that the court erred in sentencing him on nine
counts consecutively, rather than running all nine counts concurrently to one
consecutive rather than concurrent sentences lies within the sound discretion
of the sentencing court. Challenges to the exercise of this discretion
ordinarily do not raise a substantial question. Commonwealth v. Pass,
914 A.2d 442, 446-47 (Pa. Super. 2006). Section 9721 of the Sentencing
Code affords the sentencing court discretion to impose its sentence
_______________________
(Footnote Continued)
entered depends upon the actual terms of the plea bargain, specifically, to
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concurrently or consecutively to other sentences being imposed at the same
time or to sentences already imposed. Commonwealth v. Marts, 889 A.2d
608 (Pa. Super. 2005). In imposing a sentence, the trial judge may
determine whether, given the facts of a particular case, a sentence should
run consecutive to or concurrent with another sentence being imposed.
Commonwealth v. Perry, 883 A.2d 599 (Pa. Super. 2005). The key to
resolving the preliminary substantial question inquiry is whether the decision
to sentence consecutively raises the aggregate sentence to, what appears
upon its face to be, an excessive level in light of the criminal conduct at
issue in the case. Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.
Super. 2010). Because Gates also claims his sentence is excessive, as a
result of multiple counts running consecutively, we find that he has
presented a substantial question for our review. Id.
The crime of theft by failure to make required disposition of funds is
defined as:
A person who obtains property upon agreement, or subject
to a known legal obligation, to make specified payments or
other disposition, whether from such property or its
proceeds or from his own property to be reserved in
equivalent amount, is guilty of theft if he intentionally
deals with the property obtained as his own and fails to
make the required payment or disposition. The foregoing
applies notwithstanding that it may be impossible to
identify particular property as belonging to the victim at
the time of the failure of the actor to make the required
payment or disposition.
18 Pa.C.S. § 3927(a).
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actions, with the total theft exceeding $450,000. The client funds that Gates
estates he represented; (2) money that should have been disbursed to a
for clients. Gates signed a written plea colloquy acknowledging the extent of
his criminal actions, indicating that he understood the factual nature of the
offenses to which he was pleading guilty and that he was aware of the
permissible range of sentences and/or fines that could be imposed.
Moreover, he stated that he understood that the trial court could impose
consecutive sentenc
counts running consecutively) is excessive, especially where the
Commonwealth agreed to nolle prosse 26 criminal charges and the sentence
for each individual count was within the standard range of the guidelines.
See Commonwealth v. Fiascki, 886 A.2d 261 (Pa. Super. 2005) (where
trial court considered unique circumstances of crimes and effect that crimes
had on each of 23 individual -20
failure to make required disposition of funds was not unreasonable).
Gates also asserts that pursuant to 18 Pa.C.S. § 3902 his theft
offenses should have constituted a single offense for sentencing purposes.
We disagree.
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Under section 3902 (Consolidation of theft offenses):
Conduct denominated theft in this chapter constitutes a single
offense. An accusation of theft may be supported by evidence
that it was committed in any manner that would be theft under
this chapter, notwithstanding the specification of a different
manner in the complaint or indictment, subject only to the power
of the court to ensure fair trial by granting a continuance or
other appropriate relief where the conduct of the defense would
be prejudiced by lack of fair notice or by surprise.
18 Pa.C.S. § 3902. As previously noted, Gates pled guilty to only one theft
offense, the offense of theft by failure to make required disposition of funds
received, 18 Pa.C.S. § 3927(a). The fact that Gates was sentenced on nine
separate counts for a single theft offense is legally permissible and does not
violate section 3902. Compare Commonwealth v. Haines, 442 A.2d 757
(Pa. Super. 1982) (where defendant convicted of theft by unlawful
taking/disposition and receiving stolen property was properly sentenced on
by both crimes making counts superfluous) with Fiascki, supra
were 23 individual theft victims).
Finally, Gates claims that his sentence is illegal for the following
separating one crime into nine counts and (2) several of the counts should
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8
In Commonwealth v. Petzold, 701 A.2d 1363 (Pa. Super. 1997), our
Court stated that sentencing manipulation occurs when "a defendant,
although predisposed to commit a minor or lesser offense, is entrapped in
committing a greater offense subject to greater punishment."
Commonwealth v. Paul, (Pa. Super. 2007), citing Commonwealth v.
Petzold, 701 A.2d at 1365. Here, Gates was not entrapped into committing
additional acts of theft beyond the monies he misappropriated from his first
client-victim. In short, the prosecution or government had no involvement
in encouraging his criminal conduct or prolonging his illegal actions beyond
the first criminal act in April 2011. Therefore, this claim has no merit.
With regard to
for sentencing purposes, based on the fact that his conduct should be
considered a single crime, we also find he is due no relief.
Pursuant to section 9765 (Merger of sentences):
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
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8
A claim that crimes should have merged for sentencing purposes raises a
challenge to the legality of the sentence. Commonwealth v. Allen, 24
A.3d 1058, 1062 (Pa. Super. 2011).
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42 Pa.C.S. § 9765 (emphasis added).
Here, Gates failed to properly dispose of the funds of nine clients, nine
separate times. As a result, his conduct was not part of a single criminal
episode; rather, he violated section 3927 each time he committed theft
against each of his nine victims. Therefore, merger, as defined in section
9765, is inapplicable.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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