Com. v. Gates, K. ( 2022 )

J-S29027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEIYAUVE ROBERT MONTREL GATES :
:
Appellant : No. 148 WDA 2022
Appeal from the Judgment of Sentence Entered November 7, 2018
In the Court of Common Pleas of Erie County
Criminal Division at CP-25-CR-0001534-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEIYAUVE ROBERT MONTREL GATES :
:
Appellant : No. 158 WDA 2022
Appeal from the Judgment of Sentence Entered November 7, 2018
In the Court of Common Pleas of Erie County
Criminal Division at CP-25-CR-0001632-2018
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 17, 2022
Keiyauve Robert Montrel Gates (Appellant) appeals nunc pro tunc from
the judgments of sentence entered following his guilty plea to criminal attempt
(homicide) and firearms not to be carried without a license (docket number
1632 of 2018), and theft by unlawful taking and criminal trespass (docket
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* Retired Senior Judge assigned to the Superior Court.
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number 1534 of 2018).1, 2 Additionally, Appellant’s counsel (Counsel) has filed
an application to withdraw from representation and a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant Counsel’s
application to withdraw and affirm Appellant’s judgments of sentence.
The trial court summarized the procedural history as follows:
[Appellant’s] convictions stem from two separate incidents.
In the first, [Appellant] stole a number of valuable items from a
residence, including a television, video games and several articles
of clothing. In the second, [Appellant] shot his victim in the
abdomen. On September 14, 2018, [Appellant] pled guilty to [the
above charges]. On November 8, 2018, [the trial court]
sentenced [Appellant] to an aggregate sentence of 13 to 27 years
of incarceration. The following day, [Appellant] sent a
handwritten request for sentence modification to the Clerk of
Courts, which was docketed and forwarded to his attorney. On
November 19, 2018, his attorney filed a formal motion for
sentence modification. That same day, [the trial court] denied the
post-sentence motion.
[Appellant] did not timely seek a direct appeal of his
convictions, but in 2019[,] he initiated an action under the Post-
Conviction Relief Act (PCRA)[, see 42 Pa.C.S.A. §§ 9541-9546,]
to reinstate his direct [appeal] rights nunc pro tunc, which
ultimately proved successful. [The PCRA court] reinstated his
direct [appeal] rights on December 3, 2021, and [Appellant]
eventually filed a direct appeal on February 3, 2022. On February
2, 2022, the court ordered [Appellant] to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After an
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1 See 18 Pa.C.S.A. §§ 901(a), 6106(a)(1), 3921(a), 3503(a)(1)(ii).
2 Appellant filed separate notices of appeal at each docket pursuant to
Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018) (when “one or
more orders resolves issues arising on more than one docket or relating to
more than one judgment, separate notices of appeals must be filed”).
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extension of time to file the 1925(b) statement was granted,
[Appellant] timely complied with that directive on March 24, 2022.
Trial Court Opinion, 4/1/22, at 1-2 (footnotes omitted, citation added).
Counsel subsequently filed in this Court an application to withdraw and
Anders brief.
We first address Counsel’s application to withdraw from representation.
See Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010)
(“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.”). Before being permitted to withdraw pursuant to Anders,
counsel must satisfy certain procedural and substantive requirements.
Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017).
Procedurally, 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 [Anders] 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.
Id. at 359 (citation omitted). Substantively, counsel must file an Anders
brief in which counsel:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel’s conclusion that the appeal is frivolous; and (4) state[s]
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
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case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel has complied with Anders’ procedural and substantive
requirements. Counsel states in her application that she found Appellant’s
issues to be frivolous after conducting a thorough review of the
record. Petition to Withdraw as Counsel, 6/23/22, at ¶ 3. Counsel also
attached to her application a copy of the letter she sent to Appellant, in which
Counsel advised Appellant he could retain private counsel or proceed pro
se.3 Id. (attachment); see also Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. 2005). Counsel also provided Appellant with a copy of
the Anders brief, which summarizes the facts and procedural history,
includes an issue that could arguably support Appellant’s appeal, and explains
Counsel’s assessment of why the issue is frivolous. Accordingly, we review
the issue presented in Counsel’s Anders brief. We also conduct an
independent review of the record to determine whether Appellant’s appeal is
wholly frivolous. See Santiago, 978 A.2d at 358; see also Commonwealth
v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc) (“part and
parcel of Anders is our Court’s duty to review the record to [e]nsure no issues
of arguable merit have been missed or misstated.”).
Counsel’s Anders brief presents the following issue:
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3 Appellant did not file a response.
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Whether [A]ppellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Sentencing Code?
Anders Brief at 3.
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to
appeal.” Commonwealth v. Fuentes, 272 A.3d 511, 519 (Pa. Super.
2022). An appellant has sufficiently complied with the four-part test when:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). To present a substantial question, an appellant must set “forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing
process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(citation omitted).
Appellant timely filed a notice of appeal, preserved his sentencing claim
in a post-sentence motion, and Counsel included in her Anders brief the
requisite Pa.R.A.P. 2119(f) statement. See Anders Brief at 4-6. We
therefore examine whether Appellant has raised a substantial question.
“A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
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inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015) (en banc) (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. Provenzano, 50
A.3d 148, 154 (Pa. Super. 2012).
In his statement of questions presented, Appellant claims his sentence
is manifestly excessive and contrary to the Sentencing Code. Anders Brief at
3. In his Rule 2119(f) statement, Appellant recognizes the trial court imposed
a standard-range sentence for criminal attempt – homicide (120-240 months)
and a consecutive, mitigated-range sentence for firearms not to be carried
without a license (36-84 months). Anders Brief at 5. Appellant also
acknowledges the trial court’s concurrent, standard-range sentences for his
convictions of theft by unlawful taking (12-18 months) and criminal trespass
(16-84 months). Appellant recites the provisions of 42 Pa.C.S.A. § 9781, but
does not explain how his sentence violated the Sentencing Code or the
fundamental norms underlying the sentencing process. Dodge, supra.Under these circumstances, Appellant does not present a substantial question.
See Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012) (stating
a defendant presents a substantial question when he “sets forth a plausible
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argument that the sentence violates a provision of the sentencing code or is
contrary to the fundamental norms of the sentencing process.”).
Despite the deficiency in Appellant’s Rule 2119(f) statement, we review
his sentencing issue. See Santiago, supra at 354 n.5 (“when counsel meets
his or her obligations, ‘it then becomes the responsibility of the reviewing court
to make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.’” (citation
omitted)). We recognize:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation
omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 [Pa.C.S.A.] § 9721(b), that is, the protection of the public,
gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant. And, of course, the court must consider
the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d 843, 847-
48 (Pa. Super. 2006).
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
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sentencing court’s consideration of the facts of the crime and
character of the offender.
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (citation
omitted).
Our review discloses that the sentencing court had the benefit of a
presentence investigation report (PSI). See N.T., 11/7/18, at 30 (trial court
indicating it considered the PSI). When a PSI exists, we “presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.”4 Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super.
2018) (citation omitted); see also Commonwealth v. Watson, 228 A.3d
928, 936 (Pa. Super. 2020) (sentencing courts “are under no compulsion to
employ checklists or any extended or systematic definitions of their
punishment procedure”; where a PSI exists, “the sentencing court’s discretion
should not be disturbed” (citation omitted)).
The trial court did not abuse its discretion by sentencing Appellant to
standard/mitigated range sentences. See Commonwealth v. Moury, 992
A.2d 162, 171 (Pa. Super. 2010) (“where a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as appropriate
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4
In addition, the trial court considered Appellant’s IQ of 86, his eighth-grade
education, and testimony from Appellant’s grandmother regarding his difficult
childhood. N.T., 11/7/18, at 9, at 14-15.
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under the Sentencing Code”). Also, we discern no abuse of discretion in the
trial court’s imposition of consecutive sentences for Appellant’s convictions of
attempted homicide and possessing a firearm without a license. See
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)
(“Pennsylvania law 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.”). Appellant’s challenge to
the discretionary aspects of his sentences warrants no relief and is frivolous.
Finally, our independent review discloses no other, nonfrivolous issues.
We therefore grant Counsel’s application to withdraw and affirm Appellant’s
judgment of sentence.
Application to withdraw granted. Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2022
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