Com. v. Lewis, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM EDWARD LEWIS, :
:
Appellant : No. 1468 WDA 2019
Appeal from the Judgment of Sentence Entered July 1, 2019
in the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001568-2011,
CP-07-CR-0002422-2008, CP-07-CR-0002424-2008,
CP-07-CR-0002438-2008
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2020
William Edward Lewis (“Lewis”) appeals from the judgment of sentence
imposed following the revocation of his probation. Additionally, Russell J.
Montgomery, Esquire (“Attorney Montgomery”), has filed a Petition to
Withdraw as counsel, and a brief pursuant to Anders v. California, 386 U.S.
738 (1967). We grant counsel’s Petition to Withdraw, and affirm Lewis’s
judgment of sentence.
Regarding docket No. CP-07-CR-0002424-2008 (“No. 2424-2008”),
Lewis pled guilty to criminal trespass and terroristic threats on November 7,
2008. See 18 Pa.C.S.A. §§ 3505(a)(1)(ii), 2706(a)(1). The trial court
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sentenced Lewis to a term of 3 years of probation for his conviction of criminal
trespass, and 2 years of probation for the terroristic threats conviction.1
On the same date, Lewis pled guilty, at docket No. CP-XX-XXXXXXX-2008
(“No. 2438-2008”), to escape. See 18 Pa.C.S.A. § 5121(a). The trial court
sentenced Lewis to a term of 1 year of probation.2
Regarding docket No. CP-07-CR-0002422-2008 (“No. 2422-2008”), on
August 14, 2009, Lewis pled guilty to arson and burglary. See 18 Pa.C.S.A.
§§ 3301(a)(1)(i), 3502(a). The trial court sentenced Lewis to serve an
aggregate term of 10 years of probation, concurrently with the probationary
term he was serving at that time. Lewis was also ordered to comply with
special conditions and complete treatment requirements, and to pay
restitution and costs of prosecution.
On September 9, 2011, Lewis pled guilty, at docket No. CP-07-CR-
0001568-2011 (“No. 1568-2011”), to prohibited offensive weapons, theft
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1 It is unclear whether the trial court directed these sentences to run
concurrently with or consecutive to one another, as the Sentencing Order does
not appear in the certified record. See Commonwealth v. Preston, 904
A.2d 1, 7 (Pa. Super. 2006) (en banc) (stating that “the responsibility rests
upon the appellant to ensure that the record certified on appeal is complete
in the sense that it contains all of the materials necessary for the reviewing
court to perform its duty.”).
2 Similarly, absent the Sentencing Order on this docket, it is unclear whether
the trial court directed this probationary term to be served concurrently with
or consecutive to the sentence imposed at No. 2424-2008.
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from a motor vehicle, and possession of a small amount of marijuana. See
18 Pa.C.S.A. §§ 908(a), 3934; 35 P.S. § 780-113(a)(31). The trial court
sentenced Lewis to an aggregate term of 2 years of probation. The trial court
also directed Lewis to comply with all special conditions of probation, and to
pay costs and fines.3
The subsequent procedural history of this case is convoluted, and
includes multiple probation revocations and revocation sentencings.
Ultimately, Lewis appeared before the revocation court for a Gagnon
II4 hearing on April 18, 2019, based on technical violations of his probation
(i.e., changing his address without permission, failing to maintain regular
contact with his supervising agent, and use or possession of a narcotic).
During the hearing, Lewis stipulated that he was in violation of his probation.
The court deferred sentencing and directed the preparation of a pre-sentence
investigation report (“PSI”). During the sentencing portion of the Gagnon II
proceedings on July 1, 2019, the revocation court addressed concerns with
the PSI, and heard sentencing arguments from both the Commonwealth and
defense counsel. The revocation court also reviewed the Sentencing Order
with both parties and Lewis’s probation officer before entering it on the record.
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3 The Sentencing Order does not specify whether this probationary term was
to be served consecutive to or concurrently with any other probationary term
he was still serving at that time.
4 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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At No. 2422-2008, the court revoked Lewis’s probation for both the
burglary and arson convictions, and sentenced him to serve concurrent terms
of 2 to 4 years in prison. Additionally, the revocation court determined that
Lewis had already served the maximum sentences for his convictions at Nos.
2438-2008, 2424-2008, and 1568-2011, and ordered those cases closed.
However, the court noted that Lewis would remain responsible for any
remaining costs, fines and restitution originally imposed for his terroristic
threats conviction at No. 2424-2008.
On July 11, 2019, Lewis filed a Motion for Modification of Sentence,
asserting that his revocation sentence is excessive because the revocation
court did not consider the relevant sentencing factors. The revocation court
conducted a hearing, and subsequently entered a Memorandum Opinion and
Order denying Lewis’s Motion for Modification of Sentence on September 16,
2019.
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On September 25, 2019, Lewis filed a Notice of Appeal at each docket,5
with each Notice identifying all four docket numbers.6 The revocation court
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5 We observe that Lewis’s Notice of Appeal is facially untimely, as “[a] motion
to modify a sentence imposed after a revocation [of probation] … will not toll
the 30-day appeal period." Pa.R.Crim.P. 908(E); see also id., cmt.
(explaining that a notice of appeal must be filed within 30 days of the
imposition of sentence, unless the sentencing judge expressly grants
reconsideration). However, in its July 1, 2019, Sentencing Order, the
revocation court expressly stated that Lewis would have 10 days to file a post-
sentence motion, and an additional 30 days to file an appeal following the
entry of an order denying the motion. Because the revocation court’s
misstatement of the appeal period is a “breakdown in the court’s operation,”
we decline to quash the appeal on this basis. See Commonwealth v.
Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (declining to quash facially
untimely appeal because the sentencing court misstated the appeal period
after imposing a revocation sentence).
6 On October 17, 2019, this Court entered an Order directing Lewis to show
cause why his appeal should not be quashed in light of Commonwealth v.
Walker, 185 A.3d 969, 977 (Pa. 2018) (stating that “when a single order
resolves issues arising on more than one lower court docket, separate notices
of appeal must be filed. The failure to do so will result in quashal of the
appeal.” (citing Pa.R.A.P. 341)). See also Commonwealth v. Creese, 216
A.3d 1142, 1144 (Pa. Super. 2019) (quashing an appeal, pursuant to Walker,
where the appellant filed a notice of appeal at each docket number, but each
notice of appeal contained multiple docket numbers). Lewis did not file a
response, and this Court discharged the show-cause Order. Recently, this
Court, sitting en banc, held that where separate notices of appeal are filed at
each of multiple docket numbers, the inclusion of multiple docket numbers on
each notice of appeal does not invalidate the notices of appeal. See
Commonwealth v. Johnson, 2020 PA Super 164, at *4 (Pa. Super. filed July
9, 2020) (en banc); Commonwealth v. Larkin, 2020 PA Super 163, at *3
(Pa. Super. filed July 9, 2020) (en banc). In light of this Court’s decisions in
Johnson and Larkin, we decline to quash Lewis’s appeal.
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subsequently directed Lewis to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, and Lewis timely complied.7
We must first determine whether Attorney Montgomery has complied
with the dictates of Anders in petitioning to withdraw from representation.
See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc) (stating that “[w]hen faced with a purported Anders brief, this Court
may not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”) (citation omitted). Pursuant to
Anders, when an attorney believes that an appeal is frivolous and wishes to
withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the [appellate] court.
Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
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7By an Order entered December 12, 2019, this Court dismissed Lewis’s appeal
due to counsel’s failure to file an appellate brief. Counsel subsequently filed
an Application to Reinstate the Appeal, which this Court granted. On
December 26, 2019, counsel filed the Petition to Withdraw as Counsel and
Anders Brief.
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Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, Attorney Montgomery has complied with the
requirements of Anders by indicating that he carefully and thoroughly
reviewed the record, and determined that Lewis’s appeal is wholly frivolous.
Further, Attorney Montgomery attached to his Petition to Withdraw a copy of
the letter he sent to Lewis, informing him of Attorney Montgomery’s intention
to withdraw, and advising him of his right to proceed pro se, retain alternate
counsel, and file additional claims.8 Finally, Attorney Montgomery’s Anders
Brief meets the standards set forth in Santiago. Because Attorney
Montgomery has complied with the procedural requirements for withdrawing
from representation, we will independently review the record to determine
whether Lewis’s appeal is, in fact, wholly frivolous.
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8 Lewis did not file a pro se appellate brief, nor did he retain alternate counsel
for this appeal.
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In the Anders Brief, Attorney Montgomery states that Lewis wishes to
challenge the discretionary aspects of his sentence. Anders Brief at 7. Lewis
argues that he should have received a sentence of probation, rather than a
new prison term. Id. at 5.
Lewis challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d
359, 363 (Pa. Super. 2013). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] 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. Moury, 992 A.2d 162, 170 (quotation marks and some
citations omitted).
Here, Lewis filed a timely appeal and preserved his sentencing claim in
Motion for Modification of Sentence. Although we note the absence of the
requisite Pa.R.A.P. 2119(f) statement in the 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
[Lewis’s] issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661
(Pa. Super. 2015) (citations omitted). Attorney Montgomery states in the
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Anders Brief that Lewis cannot show that the sentence was inappropriate or
inconsistent with the fundamental norms underlying the sentencing process.
Anders Brief at 7.
Nevertheless, we will consider the merits of Lewis’s claim (i.e., that he
should have been sentenced to another probationary term) as part of our
independent review. See generally Commonwealth v. Colon, 102 A.3d
1033, 1043 (Pa. Super. 2014) (concluding that an “[a]ppellant’s claim that
the trial court sentenced him to a term of total confinement based solely on a
technical violation raises a substantial question for our review.”). Our
standard of review is well settled:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Id.The reason for this broad discretion and deferential standard
of appellate review is that the sentencing court is in the best
position to measure various factors and determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it. Simply stated, the sentencing
court sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
The sentencing court’s institutional advantage is, perhaps,
more pronounced in fashioning a sentence following the revocation
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of probation, which is qualitatively different than an initial
sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
appears before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
when an initial sentence is imposed, the Sentencing Guidelines do
not apply, and the revocation court is not cabined by Section
9721(b)’s requirement that “the sentence imposed should call for
confinement that is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S.A. § 9721.
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and
quotation marks omitted).
Upon revocation of probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original sentence,
including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(1) the
defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
no imprisoned; or (3) such a sentence is essential to vindicate the authority
of the court.” Id. § 9771(c).
Moreover, “[i]n every case in which the court … resentences an offender
following revocation of probation, … the court shall make as part of the record,
and disclose in open court at the time of sentencing, a statement of the reason
or reasons for the sentence imposed.” Id. § 9721(b); see also Pa.R.Crim.P.
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708(D)(2) (providing that “[t]he judge shall state on the record the reasons
for the sentence imposed.”). However, following the revocation of probation,
a sentencing court need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statutes in question. See
Pasture, 107 A.3d at 28 (stating that “since the defendant has previously
appeared before the sentencing court, the stated reasons for a revocation
sentence need not be as elaborate as that which is required at initial
sentencing.”).
During the Gagnon II hearing, Lewis’s counsel acknowledged Lewis’s
life-long problem with addiction to controlled substances. N.T., 7/1/19, at 14,
15. Counsel explained that Lewis’s mother had introduced him to cocaine and
heroin when he was approximately 14 years old. Id. at 14. Additionally,
counsel pointed out that Lewis had committed technical violations only, and
had not been charged with new criminal offenses. Id.
Lewis admitted that he had attempted suicide by taking “all [of his]
psych medications two weeks after [he] was home.” N.T., 7/1/19, at 7. Lewis
also acknowledged that his probation had been revoked, and he had been
resentenced, on multiple other occasions. Id. at 9-10. Lewis additionally
exercised his right to allocution, at which time he stated as follows:
When I came home … I was out there working. I was not out
there robbing people like my past and breaking in and hurting
people[,] you know. In a way[,] I feel like I am a victim. I got
hooked backed on drugs[,] you know. I am willing to change now.
I know I said that many times in my life[,] and I just keep going
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down the wrong path[,] but I am willing to do whatever. Take
this shot and go in inpatient ….
Id. at 26.
Prior to imposing the revocation sentence, the revocation court noted
that, “in the PSI[,] [] [Lewis] had made several assertions that [he] was not
going to comply with any sort of counseling or treatment[,] and [he] would
just max out [his] sentences.” Id. at 19. The revocation court also indicated
that Lewis’s prior record would be a “huge issue in terms of getting State
[Intermediate Punishment].” Id. at 23, 26. The revocation court stated the
following on the record:
[T]he problem with supervision is that you have to comply with all
of the terms. I mean[,] your track record is pretty awful to say
the least. I mean[,] your PSI is full of times that you have been
revoked and resentenced in the past by other [j]udges[,] who
tried to reinstate probation in an effort to give you that second
and third chance….
….
You had a suicide issue, and I know that you struggle with
drug and alcohol addiction. The state does have things that can
help you with that, but you have to want to be different. We offer
you programs, but you have to want to be different.
Id. at 27-28.
Further, in its Opinion, the revocation court explained the reasons for
imposing its sentence as follows:
[Lewis] had almost three dozen misconducts in state prison
when previously incarcerated for a period of eighteen (18)
months. He engaged in obstructive and insubordinate behavior
when incarcerated in a Lawrence County Prison. During these
periods of incarceration, [Lewis] also refused to complete
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recommended drug treatment plans. Instead, [Lewis] stated that
he intended to “max out” his sentences. After release from
incarceration and within twelve (12) days of completing a drug
and alcohol evaluation for Lawrence County, [Lewis] overdosed on
his psychiatric medication and was hospitalized. Approximately
five[-]and[-]a[-]half months later[, Lewis] was reported by his
[f]ather to be in in-patient detox and using heroin daily. The
treatment provider for [Lewis] had closed out services, showing
that the last contact was a “no-show” for a psychological
evaluation scheduled by Lawrence County. [Lewis’s] family
reported ongoing concerns with his use of drugs since an overdose
in June [] 2018. State Parole and Probation was unable to reach
[Lewis] from July 3, 2018[,] until August 24, 2018, despite daily
attempts and [Lewis] was declared an absconder. Ultimately,
[Lewis] was located in February [] 2019. Found on his person at
the time was a heroin kit, needles, and Narcan. His girlfriend at
the time of his apprehension indicated that she had to save him
numerous times from overdosing.
Further …, [Lewis] acknowledged a “life-long” addiction
problem. [Lewis] confirmed his past history of unstable mental
health, as well. Finally, despite the [d]efense ultimately
acknowledging in its brief that [Lewis] was not eligible for the drug
court program in Lawrence County and despite the benefit for the
information in the PSI, [d]efense [c]ounsel still sought probation.
It is unfortunate that [Lewis’s] prior record did not afford
him the benefit of a State Intermediate Punishment program.
However, this [c]ourt believes that [Lewis’s] failure to avail
himself of programming previously offered and his apparent co-
occurring mental health and drug addiction issues required more
than a probation sentence could provide, particularly in light of his
dismal performance while on supervision in the past.
Trial Court Opinion, 10/16/19, at 7-8.
The record confirms that the revocation court was provided with
sufficient information to make a fully informed sentencing decision following
the revocation of Lewis’s probation, and that the court adequately considered
the relevant sentencing factors. Moreover, where, as here, “the sentencing
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judge had the benefit of a [PSI], it will be presumed that he or she was aware
of the relevant information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(citation omitted); see also N.T., 7/1/19, at 4 (wherein the trial court stated
that it had reviewed the PSI prior to the hearing). Discerning no abuse of
discretion by the revocation court, we will not disrupt Lewis’s sentence on
appeal.
Finally, our independent review of the record reveals no additional
potentially meritorious claims that Lewis could raise on appeal. We therefore
grant Attorney Montgomery’s Petition to Withdraw, and affirm Lewis’s
judgment of sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2020
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