Com. v. Guisewhite, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ROY GUISEWHITE :
:
Appellant : No. 1694 MDA 2021
Appeal from the Judgment of Sentence Entered November 23, 2021
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0002578-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 1, 2022
Appellant, David Roy Guisewhite, appeals from the judgment of
sentence of 27 to 54 months’ incarceration, imposed after he pled guilty to
one count of theft by unlawful taking. On appeal, Appellant seeks to challenge
the discretionary aspects of his sentence. Additionally, Appellant’s counsel,
Lindsey M. Renard, Esq., seeks to withdraw her representation of Appellant
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 Appellant’s judgment of sentence and grant counsel’s petition to
withdraw.
The facts and procedural history of Appellant’s case were summarized
by the trial court in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion
(TCO), 1/24/22, at 1-3. Briefly, Appellant was arrested and charged with theft
by unlawful taking and related offenses based on evidence that he stole a box
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truck containing Tastykake products from outside a Sheetz gas station while
the driver of the truck was inside. On October 22, 2021, Appellant entered a
guilty plea to the theft charge and the other charges were dismissed.
On November 23, 2021, Appellant appeared for sentencing. There, his
counsel requested that the court impose a mitigated-range sentence,
suggesting that Appellant’s pre-trial incarceration during the height of the
COVID-19 pandemic was punishment enough for his theft crime. See N.T.
Sentencing, 11/23/21, at 2. According to defense counsel, Appellant has
health issues that put him at a high risk for serious issues if he contracts
COVID-19 and, therefore, Appellant suffered “a tremendous amount of
anxiety” being incarcerated during the pandemic. Id. Appellant then spoke
to the court, stating that during the 18 months he had spent in jail, there were
periods “where [prisoners] didn’t come out of [their] cell[s] for months on end
except for 20 minutes every couple of days for a shower….” Id. at 3.
Appellant also claimed that he had been unable to attend physical therapy for
a back injury, which had worsened nerve damage he had suffered. Id. at 4.
He also informed the court that he had other health issues that required
medical care outside of prison, including high blood pressure. Id. For these
reasons, Appellant asked the court to impose a mitigated-range sentence so
he could be released from incarceration forthwith.
For its part, the Commonwealth pointed out that, at the time he
committed the instant theft, Appellant was on parole for a felony burglary and
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also had a warrant out for his arrest based on a technical violation of his
parole. Id.
Ultimately, the court stated that it had considered the pre-sentence
investigation (PSI) report, and it also noted that Appellant was 62 years old.
Id. at 4-5, 6. The court determined that a minimum sentence of 27 months’
imprisonment, which was at the low-end of the standard range, was
appropriate. Id. at 5. The court imposed a maximum sentence of 54 months’
imprisonment. It also made Appellant eligible for the Recidivism Risk
Reduction Incentive (RRRI) program, 61 Pa.C.S. §§ 4501-4512, and gave
Appellant credit for the time he had served from May 6, 2020. Id. at 6-7.
Notably, Appellant did not file a post-sentence motion. Instead, he filed
a timely notice of appeal, and he complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In
his Rule 1925(b) statement, Appellant raised a single issue: “[Appellant]
believes the [c]ourt abused its discretion by not sentencing him to a mitigated
range sentence.” Pa.R.A.P. 1925(b) Statement, 1/18/22, at 1 (single page).
The trial court filed a Rule 1925(a) opinion on January 24, 2022.
Attorney Renard subsequently filed with this Court an Anders brief and,
later, a petition to withdraw from representing Appellant. Counsel has
concluded that the single sentencing issue that was raised in Appellant’s Rule
1925(b) statement is frivolous, and that he has no other, non-frivolous issues
that counsel could assert herein. Accordingly,
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this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
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In this case, Attorney Renard’s Anders brief substantially complies with
the above-stated requirements. Namely, she includes a summary of the
relevant factual and procedural history, she refers to portions of the record
that could arguably support Appellant’s claims, and she sets forth her
conclusion that Appellant’s appeal is frivolous. Counsel also explains her
reasons for reaching that determination and supports her rationale with
citations to the record and pertinent legal authority. Attorney Renard also
states in her petition to withdraw that she has supplied Appellant with a copy
of her Anders brief. Additionally, she attached a letter directed to Appellant
to her petition to withdraw, in which she informed Appellant of the rights
enumerated in Nischan. To date, this Court has not received a pro se
response from Appellant. Accordingly, counsel has complied with the technical
requirements for withdrawal. We will now independently review the record to
determine if Appellant’s issue is frivolous, and to ascertain if there are any
other, non-frivolous claims he could pursue on appeal.
Appellant seeks to argue that the trial court abused its discretion by
imposing a standard-range sentence, rather than a term of incarceration in
the mitigated range. Appellant’s issue implicates the discretionary aspects of
his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
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We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)…. Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed. Commonwealth
v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)….
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant filed a timely notice of appeal and, although Attorney
Renard has failed to include a Pa.R.A.P. 2119(f) statement in her Anders
brief, this Court has overlooked such an omission when counsel is seeking to
withdraw. See Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super.
2015) (“Where counsel files an Anders brief, this Court has reviewed the
matter even absent a separate Pa.R.A.P. 2119(f) statement.”) (citations
omitted).
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However, we cannot overlook Appellant’s failure to preserve his
sentencing claim before the trial court orally at the time of the sentencing
proceeding, or in a written, post-sentence motion. See Commonwealth v.
Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (“[I]ssues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived.”) (citation omitted). Consequently, Appellant’s sentencing challenge
is waived.
Even had Appellant preserved his issue, we would agree with Attorney
Renard that Appellant’s sentencing claim is frivolous on the merits. It is well-
settled that,
[s]entencing 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Additionally, we have stated that,
[w]here the sentencing court had the benefit of a … []PSI[ report],
we can assume the sentencing court “was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.”
Further, where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.
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Although Pennsylvania’s system stands for individualized
sentencing, the court is not required to impose the “minimum
possible” confinement.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (internal
citations omitted).
In this case, the court stated that it considered the PSI report, and it
ultimately imposed a standard-range sentence at the low-end of the guideline
range. Appellant expressed to the court his desire for a mitigated-range
sentence, and offered his reasons for believing such a sentence was warranted
in this case. However, the court also heard from the Commonwealth that
Appellant committed the present theft crime while on parole, and with a
warrant out for his arrest for a technical violation of his parole conditions. The
court also considered that Appellant continued to commit crimes, even at the
age of 62 years old. Based on this record, we presume the court considered
the mitigating factors and Appellant’s character, and imposed an appropriate,
standard-range term of incarceration. Thus, we would discern no basis for
deeming the court’s sentence an abuse of its discretion.
As our review of the record reveals no other, non-frivolous claims that
Appellant could raise herein,1 we affirm his judgment of sentence and grant
counsel’s petition to withdraw.
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1 We note that Attorney Renard adds a second issue in her appellate brief,
stating that the court would not have allowed Appellant to withdraw his guilty
plea had he filed a motion to do so. It is unclear why Attorney Renard is
mentioning this issue, as it is obviously waived based on Appellant’s failure to
(Footnote Continued Next Page)
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/01/2022
____________________________________________
raise it before the trial court in a motion to withdraw his plea, or in his Rule
1925(b) statement. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”); Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”). See
also Trial Court Order, 12/28/21, at 1 (“Any issue not properly included in the
concise statement timely filed and served pursuant to Rule 1925(b) shall be
deemed to be waived.”); Greater Erie Indus. Development Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc)
(holding that, “[i]n determining whether an appellant has waived his issues
on appeal based on non-compliance with [Rule] 1925, it is the trial court’s
order that triggers an appellant’s obligation[;] … therefore, we look first to the
language of that order”) (citations omitted). Thus, this issue is patently
frivolous, and we decline to analyze it further.
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