Com. v. Stewart, E.J. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
E. J. STEWART, : No. 1674 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered September 9, 2019,
in the Court of Common Pleas of Bradford County
Criminal Division at No. CP-08-CR-0000118-2018
BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 16, 2020
E. J. Stewart appeals from the September 9, 2019 judgment of
sentence, entered in the Court of Common Pleas of Bradford County, following
his resentencing on two counts of the summary offense of disorderly conduct.1
The trial court sentenced appellant to an aggregate term of incarceration of
20 to 180 days. Counsel filed a brief pursuant to Anders/Santiago2 and an
accompanying petition to withdraw as counsel. After careful review, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
The record reflects that appellant’s convictions stem from an argument
he had with a neighbor of the mother of appellant’s nine-year-old child.
1 18 Pa.C.S.A. §§ 5503(a)(1) and (2).
2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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Commonwealth v. Stewart, 219 A.3d 241 (Pa.Super. 2019) (unpublished
memorandum *1; citing trial court opinion, 11/15/18). During the argument,
and in the presence of the child, appellant spewed profanities and threatened
to “blow [the neighbor’s] head off.” (Id.)
After a bench trial, appellant was found guilty of three summary counts
of disorderly conduct under Sections 5503(a)(1),(2) and (3), and sentenced
to ten to ninety days’ imprisonment on each count, to be served consecutively.
On appeal, a previous panel of this court determined that the evidence was
insufficient to sustain appellant’s conviction under 18 Pa.C.S.A. § 5503(a)(3).
This court then vacated appellant’s judgment of sentence and remanded for
resentencing on appellant’s convictions under Sections 5301(a)(1) and (a)(2).
Stewart, supra (unpublished memorandum at *5).
On remand, the trial court resentenced appellant to ten to ninety days’
imprisonment on each count, to be served consecutively. Appellant filed a
timely post-sentence motion,3 alleging that the sentence imposed was
excessive. The motion was denied and appellant timely appealed. The trial
court ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). In response, appellant’s counsel filed
3 Under Pa.R.Crim.P. 720, a post-sentence motion was required because this
was not a trial de novo from a summary appeal. Here, appellant was
originally charged with terroristic threats, harassment and disorderly conduct.
18 Pa.C.S.A. §§ 2706, 2709 and 5503, respectively. Prior to trial, the charges
of terroristic threats and harassment were withdrawn and three counts of
disorderly conduct were added. Stewart, supra (unpublished memorandum
at *3).
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a statement of intent to file an Anders brief 4 The trial court then filed its
Pa.R.A.P. 1925(a) opinion. Appellant’s counsel filed an Anders brief and a
petition to withdraw.
As a preliminary matter, to withdraw under Anders, court-appointed
counsel must satisfy certain technical 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.” Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super.
2012), quoting Santiago, 978 A.2d at 361. Second, 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 case law, and/or statutes on
point that have led to the conclusion that the appeal
is frivolous.
Santiago, 978 A.2d at 361.
With respect to the briefing requirements, “[n]either Anders nor
McClendon requires that counsel’s brief provide an argument of any sort, let
alone the type of argument that counsel develops in a merits brief. [W]hat
4 Counsel incorrectly captioned his statement of intent to file an Anders/
McClendon brief as a “concise statement of matters complained of on
appeal.” See Pa.R.A.P 1925(c)(4).
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the brief must provide under Anders are references to anything in the record
that might arguably support the appeal.” Santiago, 978 A.2d at 359, 360.
Finally, counsel must furnish a copy of the Anders brief to his client and
“advise[] him of his right to retain new counsel, proceed pro se or raise any
additional points that he deems worthy of the court’s attention, and attach[]
to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (citation
omitted). “[If] counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.
2007) (en banc) (quotation marks and quotation omitted).
Initially, we note that counsel has attached his petition to withdraw to
his Anders brief. The more desirable practice is to file a separate motion to
withdraw. Commonwealth v. Frischetti, 669 A.2d 399, 400 (Pa.Super.
1995). Nevertheless, our review of counsel’s petition to withdraw, supporting
documentation, and his Anders brief reveals that he has substantially
complied with all of the foregoing requirements. Furthermore, counsel also
furnished a copy of the brief to appellant, advised him of his right to retain
new counsel, proceed pro se, and/or raise any additional points that he deems
worthy of this court’s attention, and attached to his brief a copy of the letter
sent to appellant. The letter properly advised appellant of his rights under
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Commonwealth v. Millisock, 873 A.2d 748, 751-752 (Pa.Super. 2005). As
counsel has complied with all of the requirements set forth above, we conclude
that counsel has satisfied the procedural requirements of Anders. We,
therefore, proceed to conduct an independent review to ascertain whether the
appeal is frivolous.
Counsel’s Anders brief raises the following issue:
Did the trial court abuse its discretion when it
sentenced [a]ppellant to an aggregate sentence of
20 days to 180 days?
Anders brief at 3. Appellant challenges the discretionary aspects of his
sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly unreasonable,
or the result of partiality, prejudice, bias or ill-will. In
more expansive terms, our [c]ourt recently offered:
An abuse of discretion may not be found merely
because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review
is that the sentencing court is in the best position to
determine the proper penalty for a particular offense
based upon an evaluation of the individual
circumstances before it.
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Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
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
[c]ourt’s jurisdiction by satisfying a four-part test:
[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).
Moury, 992 A.2d at 170 (citation omitted; brackets in original).
Here, appellant filed a timely notice of appeal and counsel included the
requisite Rule 2119(f) statement in his Anders brief. In appellant’s
post-sentence motion, he raised the following issue: “[Appell]ant feels the
sentence is excessive.” (Appellant’s post-sentence motion, 9/16/19 at ¶4.) A
reading of counsel’s Anders brief, however, reveals that appellant’s challenge
to his sentence is that it is excessive because he was acting to protect his
child. (Anders brief at 12.) Appellant did not identify the reason why he
claims his sentence is excessive in his post-sentence motion and arguably
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waived the challenge he now raises. Because counsel has filed an Anders
brief, however, we will consider the issue on appeal. See Commonwealth v.
Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (holding that Anders requires
this court to review issues otherwise waived on appeal). Accordingly, we must
now determine whether appellant raises a substantial question.
In determining whether a substantial question exists,
this [c]ourt does not examine the merits of whether
the sentence is actually excessive. Rather, we look to
whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges is clearly unreasonable.
Concomitantly, the substantial determination does not
require the court to decide the merits of whether the
sentence is clearly unreasonable.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015) (citation
omitted).
We determine whether an appellant raises a substantial question on a
case-by-case basis. See Swope, 123 A.3d at 338. “A substantial question
requires a demonstration that the sentence violates a specific provision of the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.Super. 2012)
(citation and quotation marks omitted), appeal denied, 62 A.3d 378 (Pa.
2013).
Here, appellant claims that the trial court abused its discretion by
imposing an “unduly” harsh sentence which was inappropriate because “the
[incident] arose [out] of a sense of protection for his family member.”
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(Anders brief at 12.) “[A] bald assertion that a sentence is excessive does
not by itself raise a substantial question justifying this [c]ourt’s review of the
merits of the underlying claim.” Commonwealth v. Harvard, 64 A.3d 690,
701 (Pa.Super. 2013) (citation omitted), appeal denied, 77 A.3d 636 (Pa.
2013). Moreover, the sentencing guidelines do not apply to summary
offenses.5 Additionally, Pa.R.Crim.P. 106(c)(2) provides that a person
convicted of a summary offense “may be sentenced to a term of
imprisonment, the maximum of which is not more than 90 days.”
Here, the record reflects that appellant’s sentences do not exceed the
statutory maximum for each summary offense. Moreover, appellant has failed
to identify a violation of any provision of the Sentencing Code. Therefore,
appellant’s bald assertion fails to raise a substantial question.
Nevertheless, we note that at resentencing the trial court incorporated
the reasons for the sentence as stated at the first sentencing hearing;
specifically, appellant’s recidivism, as follows:
We start off with 2008 . . . with simple assault, 2014
harassment, 2016 disorderly conduct – fighting, 2017
and 2018 two more harassment offenses. He has
received fines and costs for all of those, that’s giving,
sending a message that it’s okay we’ll just give you a
fine and have you pay the costs again and [], enough
is enough. It’s time to take these more seriously and
try to put a stop to this behavior. If the fines and
costs weren’t going to do it hopefully a short period of
incarceration well [sic] put a stop to this type of
behavior.
5 See 204 Pa.Code § 303.1(a).
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Notes of testimony, 9/9/19 at 3-4. Accordingly, we find no abuse of discretion.
Finally, our independent review of the entire record reveals no additional
non-frivolous claims.6 Therefore, we grant counsel’s petition to withdraw and
affirm appellant’s September 9, 2019 sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2020
6 “Because [a]ppellant had the benefit of a direct appeal, he is barred from
raising any issues other than a challenge to the sentence imposed on remand.”
Commonwealth v. Williams, 151 A.3d 621, 625 (Pa.Super. 2016) (citation
omitted), affirmed, 221 A.3d 262 (Pa. 2019).
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