Com. v. Creese, L., Sr. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LAWRENCE EDWIN CREESE, SR.,
Appellant No. 225 MDA 2016
Appeal from the Judgment of Sentence December 21, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001064-2013
CP-67-CR-0004360-2013
CP-67-CR-0004367-2013
CP-67-CR-0004379-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 13, 2016
Appellant Lawrence Edwin Creese, Sr., appeals from the judgment of
sentence entered in the Court of Common Pleas of York County on December
21, 2015, at which time he received an aggregate sentence of five (5) years
to fourteen (14) years in prison following his open guilty plea to forty counts
including burglary, criminal trespass, theft, criminal mischief, criminal
conspiracy and receiving stolen properly docketed to four, different criminal
informations.1 In addition, Appellant's counsel has filed a petition to
withdraw his representation and a brief pursuant to Anders v. California,
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No. CP-67-CR-0001064-2013; No. CP-67-CR-0004360-2013; No. CP-67-
CR-0004367-2013; No. CP-67-CR-0004379-2013, respectively.
*Former Justice specially assigned to the Superior Court.
J-S56040-16
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Commonwealth
v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After a careful review, we
grant counsel's petition to withdraw and affirm Appellant’s judgment of
sentence.
Appellant and several accomplices2 broke into storage-shed businesses
located in Southern York County over a period of about two and one-half
months. Appellant and his cohorts would take items from the sheds and
transport them to Baltimore, Maryland, where those items were sold. Seven
businesses were affected, and over 31 victims lost property ranging in an
amount of $15.00 for individuals whose locks were broken to $12,000.00 for
those who had a number of items stolen from their storage units. One
business was an antique dealer whose items were not readily available on
the market and were never recovered. The amount of restitution for the
stolen property was in excess of $335,000.00.
Trial was scheduled to begin on November 2, 2015, but at that time
Appellant instead pled guilty to a majority of the charges that had been
brought against him. On December 21, 2015, the trial court sentenced
Appellant, and on December 31, 2015, Appellant filed a post sentence
motion wherein he requested the following relief:
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Three individuals including Appellant were originally involved in the crimes;
however, one had passed away before the time of Appellant’s sentencing.
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a. sentence [Appellant] pursuant to probation’s
recommendation of all sentences concurrent, or an aggregate of
one and one half (1 ½) to five (5) years; and,
b. sentence [Appellant] with a recommendation to serve his
sentence in an SCI which will treat [Appellant] for his addictions;
c. in the alternative to (a) above, sentence [Appellant] to a
lower minimum of one and one half (1 ½) years, with a longer
maximum.
See Post Sentence Motions, filed 12/31/15, at ¶ 7.
The trial court denied Appellant’s motion to reconsider/modify
sentence on January 7, 2016, and Appellant filed a timely notice of appeal
on February 4, 2016. The trial court filed its Order pursuant to Pa.R.A.P.
1925(b), and on February 17, 2016, counsel filed his Statement of Matters
Complained of on Appeal wherein he indicated his intent to file an Anders
brief with this Court pursuant to Pa.R.A.P. 1925(c)(4). As noted above,
counsel filed a petition to withdraw as counsel and an Anders/Santiago
brief with this Court on May 10, 2016.
Before reviewing the merits of the underlying issue Appellant presents,
we first consider counsel’s petition to withdraw. Commonwealth v.
Orellana, 86 A.3d 877, 879 (Pa.Super. 2014).
When presented with an Anders brief, this Court may not review
the merits of the underlying issues without first passing on the
request to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa.Super. 2007) (en banc). Before counsel is
permitted to withdraw, he or she must meet the following
requirements:
First, counsel must petition the court for leave to
withdraw and state that after making a conscientious
examination of the record, he has determined that the
appeal is frivolous; second, he must file a brief
referring to any issues in the record of arguable merit;
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and third, he must furnish a copy of the brief to the
defendant and advise him of his right to retain new
counsel or to himself raise any additional points he
deems worthy of the Superior Court's attention.
Santiago, 602 Pa. at 178–79, 978 A.2d at 361.2
FN2. The requirements set forth in Santiago apply to cases
where the briefing notice was issued after August 25, 2009, the
date the Santiago opinion was filed. As the briefing notice in
this case was issued after Santiago was filed, its requirements
are applicable here. Commonwealth v. Martuscelli, 54 A.3d
940, 947 (Pa.Super. 2012).
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183-84 (Pa.Super.
2016).
Herein, we have reviewed counsel’s petition to withdraw as counsel
and his accompanying correspondence which he served upon Appellant. In
the letter, counsel indicated he was enclosing the petition to withdraw along
with his Anders brief and explained that if Appellant had any issues he
wished to pursue before this Court, he must do so immediately either pro se
or with the assistance of new counsel.3 We also have examined the Anders
brief counsel prepared. These documents satisfy us that counsel has
complied with all of the foregoing requirements; therefore, we grant
counsel’s petition to withdraw and next analyze the issue counsel presented
in his Anders brief to make an independent judgment as to whether the
appeal is, in fact, wholly frivolous. See Bynum-Hamilton, supra (citing
Santiago, supra). Specifically, Appellant questions:
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Appellant has not responded to the application to withdraw as counsel.
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Whether the honorable trial court erred in sentencing [A]ppellant
to an aggregate term of five (5) to fourteen (14) years?
Anders-McClendon Brief at 4.
Appellant asserts that while all of the sentences the trial court imposed
were within the sentencing guidelines and, thus, legal sentences, they were
at the top of the standard range. Anders-McClendon Brief at 10.
Appellant’s issue challenges the discretionary aspects of his sentence, and it
is well-established that a claim a sentence is excessive is cognizable before
this Court. See Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super.
2002) (stating claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing). However, challenges to the
discretionary aspects of sentencing do not entitle an appellant to an appeal
as of right. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).
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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Herein, Appellant filed a timely notice of appeal and challenged his
sentence in his motion to modify/reconsider sentence. Although counsel has
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not included the requisite Pa.R.A.P. 2119(f) statement in his Anders brief,
“[w]here counsel files an Anders brief, this Court has reviewed the matter
even absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do not
consider counsel's failure to submit a Rule 2119(f) statement as precluding
review of whether Appellant's issue is frivolous.” Commonwealth v.
Zeigler, 112 A.3d 656, 661 (Pa.Super. 2015) (citations omitted). Also, “a
determination of what constitutes a substantial question must be evaluated
on a case-by-case basis and such question exists only when an appellant
advances a colorable argument that the sentencing judge's actions were
either inconsistent with a specific provision of the Sentencing Code or
contrary to the fundamental norms underlying the sentencing process.”
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (2016) citing
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011). A bald
allegation of excessiveness does not present a substantial question.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).
Instantly, the trial court heard statements from Appellant, his
grandmother and his fiancé and referenced the pre-sentence investigation
report (PSI) prior to imposing Appellant’s sentence. N.T. Sentencing,
12/21/15, at 11-12. Noting Appellant had a prior record score of five (5)
and that the restitution owed to the victims exceeded $335,000, the trial
court indicated it was “somewhat surprised” by the recommendation arising
from the PSI and indicated it could not accept such recommendation as an
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appropriate sentence in light of Appellant’s significant crimes. Id. at 12.4
Thus, the trial court sentenced Appellant such that the charges from each
case number ran concurrently with one another but consecutively to each of
the sentences imposed in the four, separate matters. In addition, the trial
court stated with specificity its reasons for imposing Appellant’s sentence.
Id. at 11-13.
Long standing precedent of this Court recognizes that 42
Pa.C.S.A. section 9721 affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Commonwealth v. Graham, 541 Pa. 173,
184, 661 A.2d 1367, 1373 (1995). .... Any challenge to the
exercise of this discretion ordinarily does not raise a substantial
question. Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2
(Pa.Super. 2005); see also Commonwealth v. Hoag, 665
A.2d 1212, 1214 (Pa.Super. 1995) (explaining that a defendant
is not entitled to a ‘volume discount’ for his or her crimes).
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa.Super.
2010).
The trial court had the discretion to sentence Appellant consecutively,
and Appellant does not otherwise challenge the legality of his aggregate
sentence. Indeed, Appellant concedes the sentence imposed complies with
the Sentencing Guidelines. Anders Brief at 10. Appellant’s bare assertion
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The trial court stressed that the recommendation indicated that Appellant
was eligible for an IP sentence and that all counts should run concurrently to
one another, although the recommendation failed to specify whether “that
also included for each particular case to run concurrent with one another.
Id. at 12.
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his sentence was excessive, without more, does not raise a substantial
question. Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010).
Accordingly, we grant counsel's petition to withdraw and affirm Appellant’s
judgment of sentence.
Petition to withdraw granted; Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2016
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