Com. v. Dennis, J. ( 2020 )

J-S28016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JON DENNIS :
:
Appellant : No. 26 MDA 2020
Appeal from the Judgment of Sentence Entered November 20, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001356-2019,
CP-35-CR-0001435-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JON DENNIS :
:
Appellant : No. 27 MDA 2020
Appeal from the Judgment of Sentence Entered November 20, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001435-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JON DENNIS :
:
Appellant : No. 87 MDA 2020
Appeal from the Judgment of Sentence Entered November 20, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001356-2019
J-S28016-20
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 11, 2020
Appellant, Jon Dennis, appeals from the judgment of sentence entered
on November 20, 2019, as made final by the denial of Appellant’s
post-sentence motion on November 26, 2019. In this direct appeal,
Appellant’s court-appointed counsel has filed both a petition for leave to
withdraw as counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009). We conclude that Appellant’s counsel has complied with the
procedural requirements necessary to withdraw. Moreover, after
independently reviewing the record, we conclude that the instant appeal is
wholly frivolous. We, therefore, grant counsel’s petition for leave to withdraw
and affirm Appellant’s judgment of sentence.
The pertinent facts and procedural history of this case are as follows.
On July 24, 2019, Appellant entered a guilty plea at CP-35-CR-0001435-2019
(19-CR-1435) to one count of disorderly conduct, 18 Pa.C.S.A. § 5503, and
one count of false identification to law enforcement, 18 Pa.C.S.A. § 4914. The
events that gave rise to the guilty pleas entered at 19-CR-1435 occurred on
April 3, 2019, at which time Appellant resisted removal from his vehicle and
gave a false identity to law enforcement officers after he was informed that
he was the subject of a criminal investigation. In addition, on July 24, 2019,
Appellant pled guilty at CP-35-CR-0001356-2019 (19-CR-1356) to one count
of delivery of a controlled substance, 35 P.S. § 780-113(a)(30). The events
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that lead to Appellant’s guilty plea at 19-CR-1356 took place on June 3, 2019,
when police officials observed Appellant deliver a quantity of
methamphetamine to a confidential informant in exchange for United States
currency.
The trial court convened a sentencing hearing on November 20, 2019.
At the hearing, counsel for Appellant advised the court about Appellant’s
struggles with drug addiction and mental health issues. In addition, counsel
introduced two character letters submitted on Appellant’s behalf that
addressed Appellant’s commitment to recover from drug use. After hearing
arguments from counsel, considering a presentence investigation (“PSI”)
report, and reviewing Appellant’s past contacts with law enforcement,
including his failure to comply with the terms of a sentence of intermediate
punishment, the trial court imposed sentence. At 19-CR-1356, the court
ordered Appellant to serve 18 to 36 months in state confinement for delivering
a controlled substance. At 19-CR-1435, the court sentenced Appellant to
serve four to 12 months in state prison for falsely identifying himself to law
enforcement. Lastly, the court directed that Appellant serve two to 12 months
in state incarceration for disorderly conduct. All of the sentences, which fell
toward the upper end of the standard guideline range for each offense, were
set to run consecutively to each other. Hence, Appellant received an
aggregate term of 24 to 60 months of state confinement.
Appellant filed a post-sentence motion alleging that his sentence was
excessive on November 25, 2019. The trial court denied the motion on
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November 26, 2019. On December 20, 2019, Appellant’s counsel filed a single
notice of appeal with both trial court docket numbers in its caption, which was
docketed in this Court at 26 MDA 2020. On December 26, 2019, counsel filed
a second notice of appeal, with only docket number 19-CR-1435 in its caption,
which was docketed in this Court at 27 MDA 2020. On January 10, 2020,
counsel filed a third notice of appeal, titled “Amended Notice of Appeal,” with
only trial court docket number 19-CR-1356 in its caption. The notice was
docketed in this Court at 87 MDA 2020.
Appellant filed the appeals docketed in this Court at 26 MDA 2020 and
27 MDA 2020 within 30 days of the denial of his post-sentence motion. As
such, these appeals were timely and we possess jurisdiction over the appeals
at those dockets. See Pa.R.A.P. 903(a) (notice of appeal must be filed within
30 days of entry of order from which appeal is taken); see also Pa.R.Crim.P.
720(A)(2)(a) (notice of appeal must be filed within 30 days of entry of order
deciding timely post-sentence motion). Moreover, since Appellant filed
notices of appeal at each trial court docket pertaining to his November 20,
2019 judgment of sentence, his appeal is compliant with Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018) (holding that “where a single order resolves
issues arising on more than one docket, separate notices of appeal must be
filed for each of those cases” pursuant to Pa.R.A.P. 341 and its note).1 The
____________________________________________
1On July 9, 2020, an en banc panel of this Court decided Commonwealth v.
Johnson, 2020 WL 3869723 (Pa. Super. 2020) (en banc) concerning the
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appeal docketed in this Court at 87 MDA 2020 was filed more than 30 days
after the disposition entered on Appellant’s post-sentence motion. Because
that appeal is untimely, we lack jurisdiction in that case and direct that the
appeal be quashed.2
On appeal, the Anders brief raises a single claim:
Whether the trial court abused its discretion when it imposed
unreasonable, harsh, and excessive sentences on all of the
charges?
Anders Brief at 4 (complete capitalization omitted).
Before reviewing the merits of this appeal, this Court must first
determine whether appointed counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “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.”
____________________________________________
proper application of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018)
in light of Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019)
(reading Walker as a mandate to quash appeal unless notice of appeal
contains only one trial court docket number). The Johnson Court expressly
overruled Creese, supra and held that as long as the appellant files a
separate notice of appeal at each trial court docket, “[t]he fact that the notices
[of appeal] contained [more than one trial court docket number] is of no
consequence.” Id. at *11. Accordingly, we decline to quash the instant
appeal.
2 Both Appellant and the trial court have complied with the requirements set
forth at Pa.R.A.P. 1925.
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Miller, 715 A.2d at 1207. 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. Finally, counsel must furnish a copy of the
Anders brief to his or her client and advise the client “of [the client’s] right to
retain new counsel, proceed pro se or raise any additional points worthy of
this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
Super. 2007).
If counsel meets all of the above 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.” Santiago, 978 A.2d at 355 n.5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. ... [T]his
review does not require this Court to act as counsel or otherwise advocate on
behalf of a party. Rather, it requires us only to conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze those issues
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of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them.”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In this case, counsel complied with all of the above procedural
obligations.3 We must, therefore, review the entire record and analyze
whether this appeal is, in fact, wholly frivolous. Our review begins with the
claim raised in the Anders brief.
Essentially, Appellant challenges the trial court’s decision to impose his
sentences at each docket consecutively, rather than concurrently.
Specifically, Appellant claims that the imposition of consecutive sentences at
the high end of the standard guidelines range for all three offenses was
unwarranted under the facts of this case. Anders Brief at 7. In addition,
counsel points out that Appellant largely served his prior sentences without
incident and that his crimes stemmed from his addiction to narcotics. Id.
Appellant’s issue implicates the discretionary aspects of sentencing. As
this Court previously explained:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
____________________________________________
3 On August 4, 2020, Appellant filed a pro se response to counsel’s letter and
the Anders brief. The response did not raise a specific challenge to counsel’s
submissions.
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We 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal
case citations omitted).
Appellant has fulfilled the first, second, and third requirements of the
above-mentioned four-part test. A challenge to the imposition of consecutive
sentences, however, does not usually raise a substantial question. Indeed,
this Court previously explained:
Under 42 Pa.C.S.A. § 9721, the court has discretion to impose
sentences consecutively or concurrently and, ordinarily, a
challenge to this exercise of discretion does not raise a substantial
question. Commonwealth v. Pass, 914 A.2d 442, 446–447 (Pa.
Super. 2006). The imposition of consecutive, rather than
concurrent sentences may raise a substantial question in only the
most extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment. Id. (holding challenge to court's
imposition of sentence of six [] to [23] months['] imprisonment
and sentence of one [] year probation running consecutive, did
not present substantial question). Compare [Commonwealth
v. Dodge, 957 A.2d 1198 (Pa. Super. 2008), appeal denied, 980
A.2d 605 (Pa. 2009)] (holding imposition of consecutive sentences
totaling 58 ½ to 124 years['] imprisonment for [37] counts of
theft-related offenses presented a substantial question because
total sentence was essentially life sentence for [a 42-year-old]
defendant who committed non-violent offenses with limited
financial impact).
Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super. 2010)
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Following our decision in Dodge, we have made clear that a challenge
to the consecutive nature of standard sentences does not always raise a
substantial question. See Commonwealth v. Gonzalez–Dejesus, 994 A.2d
595, 598 (Pa. Super. 2010) (imposition of consecutive as opposed to
concurrent sentences does not ordinarily raise a substantial question that
justifies allowance of appeal). Instead, we examine such claims on a
case-by-case basis. Id. This Court has determined that “the key to resolving
the preliminary substantial question inquiry is whether the decision to
sentence consecutively raises the aggregate sentence to, what appears on its
face to be, an excessive level in light of the criminal conduct at issue in the
case.” Id. at 598–599. Based upon our review, Appellant's sentence is not
facially excessive in light of his criminal conduct.
Our conclusion is based primarily on the trial court’s imposition of
standard-range sentences following its review of a PSI report. “[W]here the
sentencing court imposed a standard-range sentence with the benefit of a
[PSI] report, we will not consider the sentence excessive.” Commonwealth
v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citation omitted). “In those
circumstances, 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.” Id. (citation and
internal quotation omitted). In this case, the trial court had the benefit of a
PSI report before fashioning standard range, consecutive sentences. Finally,
even if we were to find that Appellant raised a substantial question, we would
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not agree that the trial court abused its discretion in imposing the sentence
challenged in this case.
Accordingly, based upon all of the foregoing, we conclude that Appellant
has not raised a substantial question. Even if he had, we would conclude that
his discretionary sentencing claim is devoid of merit. Thus, we agree with
counsel that Appellant’s claims are frivolous.
In addition, after an independent review of the entire record, we see
nothing that might arguably support this appeal. The appeal is, therefore,
wholly frivolous. Accordingly, we affirm Appellant’s judgment of sentence and
grant counsel’s petition for leave to withdraw.
Petition for leave to withdraw from representation granted. Judgment of
sentence affirmed. Appeal docketed at 87 MDA 2020 is quashed. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/11/2020
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