Com. v. Covert, 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOHN PAUL COVERT, : No. 303 MDA 2020
:
Appellant :
Appeal from the Judgment of Sentence Entered October 30, 2019,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0005480-2012
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 29, 2020
John Paul Covert appeals from the October 30, 2019 judgment of
sentence entered by the Court of Common Pleas of Dauphin County following
the revocation of his probation. The trial court sentenced appellant to
1-5 years’ imprisonment. Deanna A. Muller, Esq., filed a motion to withdraw
her appearance on May 11, 2020, alleging that a direct appeal would be
frivolous, accompanied by an Anders brief.1 After careful review, we deny
Attorney Muller’s motion to withdraw her appearance, vacate the judgment of
sentence, and remand for resentencing.
1 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). The Commonwealth did not file a brief
in this matter.
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Appellant entered a guilty plea to one count each of criminal solicitation
of involuntary deviate sexual intercourse (“IDSI”) with a person younger than
16 years of age, disseminating explicit sexual material to a minor, unlawful
contact with a minor – sexual offenses, corruption of minors, criminal attempt
to disseminate explicit sexual material to a minor, criminal solicitation of
statutory sexual assault – 4-8 years older, and criminal solicitation of indecent
assault of a person younger than 16 years of age.2 Pursuant to a negotiated
plea agreement between appellant and the Commonwealth, the trial court
sentenced appellant to 2½ to 5 years’ imprisonment on the criminal
solicitation of IDSI with a person younger than 16 years of age change on May
21, 2013.3 On the dissemination of explicit sexual material to a minor and
unlawful contact with a minor – sexual offenses charges, the trial court
imposed concurrent 5-year terms of probation, to be served consecutively to
appellant’s prison sentence. The trial court imposed separate concurrent 5-
year terms of probation for the corruption of minors and the criminal attempt
to disseminate explicit sexual materials to a minor charges, to be served
consecutively to the first 5-year term of probation. The trial court imposed
no further penalty for the remaining charges.
218 Pa. C.S.A. §§ 902(a), 5903(c)(1), 6318(a)(1), 6301(a)(1)(i), and 901(a),
respectively.
3 The terms of the negotiated guilty plea only applied to the term of
imprisonment imposed by the trial court. The terms of probation were left to
the discretion of the trial court. (See notes of testimony, 5/21/13 at 4.)
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On October 30, 2019, following a Gagnon II4 hearing, the trial court
determined that appellant violated the terms of his probation that he was
serving on the dissemination of explicit sexual material to a minor and the
unlawful contact with a minor – sexual offenses charges. (Notes of testimony,
10/30/19 at 5.) The trial court revoked appellant’s probation and sentenced
him to a term of 1-5 years’ imprisonment. (Id.) The trial court explicitly
noted that the terms of probation for the corruption of minors and criminal
attempt to disseminate explicit sexual material to a minor were not affected.
(Id.)
Appellant filed a timely post-sentence motion on November 6, 2019,
which the trial court denied on November 18, 2019. Appellant did not
immediately file a notice of appeal. On December 23, 2019, appellant filed a
petition pursuant to the Post Conviction Relief Act5 (“PCRA”), in which he
4 In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court of the
United States determined a two-step procedure was required before parole or
probation may be revoked:
[A] parolee [or probationer] is entitled to two
hearings, one a preliminary hearing [Gagnon I] at
the time of his arrest and detention to determine
whether there is probable cause to believe that he has
committed a violation of his parole [or probation], and
the other a somewhat more comprehensive hearing
[Gagnon II] prior to the making of a final revocation
decision.
Id. at 781-782.
5 42 Pa.C.S.A. §§ 9541-9546.
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sought a reinstatement of his direct appellate rights. The PCRA court granted
appellant’s petition on January 14, 2020, and reinstated appellant’s direct
appellate rights.
Appellant filed a timely notice of appeal on February 13, 2020. 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, Attorney Muller filed a
statement of intent to file an Anders/Santiago brief in lieu of filing a
Rule 1925(b) statement pursuant to Pa.R.A.P. 1925(c)(4). The trial court filed
a memorandum in lieu of an opinion on April 17, 2020. On May 11, 2020,
Attorney Muller filed with this court a motion to withdraw as counsel, with an
accompanying Anders brief.
To withdraw under Anders and its progeny, 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, [s]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
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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. To repeat, what the brief must provide under Anders are
references to anything in the record that might arguably support the appeal.”
Id. at 359. Finally, counsel must furnish a copy of the Anders brief to her
client and “advise[] him of his right to retain new counsel, proceed pro se or
raise any additional points that he deems worthy of this 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), citing
Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.Super. 2005). “[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), quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa.Super.
2004).
Our review of Attorney Muller’s petition to withdraw, supporting
documentation, and Anders brief reveals that she has substantially complied
with all of the foregoing requirements. We note that counsel also furnished a
copy of the brief to appellant, advised him of his right to retain new counsel,
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proceed pro se, and/or raise any additional points that he deems worthy of
this court’s attention,6 and attached to her motion to withdraw a copy of the
letter she sent to appellant as required under Millisock, 873 A.2d at 751.
See Daniels, 999 A.2d at 594 (holding that “[w]hile the Supreme Court in
Santiago set forth the new requirements for an Anders brief, which are
quoted above, the holding did not abrogate the notice requirements set forth
in Millisock that remain binding legal precedent.”). As Attorney Muller has
complied with all of the requirements set forth above, we conclude that
counsel has satisfied the procedural requirements of Anders. We, therefore,
shall proceed to conduct an independent review to ascertain whether the
appeal is indeed wholly frivolous.
Attorney Muller raises the following issue in the Anders brief:
Did the trial court abuse its discreation [sic] in
re-sentencing appellant to a term of one (1) to five (5)
years of incarceration on the charges of dissemination
of explicit sexual material to a minor and unlawful
contact with a minor, where the sentence was
excessive and unreasonable?
Anders brief at 5 (full capitalization omitted).
Here, appellant challenges the discretionary aspects of his sentence.
Specifically, appellant argues that his sentence, “is manifestly excessive such
that it constitutes too severe a punishment where [a]ppellant’s probation had
not previously been revoked, and [appellant] was able to explain the presence
6 Appellant did not file a response.
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of the pornography found on his phone, and was gainfully employed and had
a stable address during the time he was supervised.” (Id. at 10-11.)
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:
[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).
Commonwealth v. Evans, 901 A.2d 528, 533
(Pa.Super. 2006), appeal denied, [] 909 A.2d 303([Pa.] 2006).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (brackets
in original).
First, appellant timely filed his notice of appeal pursuant to
Pa.R.A.P. 902 and 903. Second, he properly preserved the issue in a
post-sentence motion that was filed on November 6, 2019. The trial court
denied appellant’s motion on November 18, 2019. Third, Attorney Muller
included a Rule 2119(f) statement in her Anders brief, in which she, on behalf
of appellant, asserts that “the sentence imposed by the sentencing court is
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manifestly excessive such that it constitutes too severe a punishment where
[a]ppellant’s probation had not previously been revoked, [appellant] was able
to explain the presence of the pornography found on his phone, and he was
gainfully employed and had a stable address during the time he was
supervised.” (Anders brief at 10-11.) We must now determine whether
appellant’s claim raises a substantial question.
[A] determination of what constitutes a substantial
question must be evaluated on a case-by-case basis
and such question exists only when an appellant
advances a colorable argument that the sentencing
judge’s actions were either inconsistent with a specific
provision of the Sentencing Code or contrary to the
fundamental norms underlying the sentencing
process.
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016)
(citation omitted).
Here, appellant’s claim that the length of his sentence is manifestly
excessive such that it constitutes too severe a punishment raises a substantial
question. (See Anders brief at 10-11; see also Commonwealth v.
Malovich, 903 A.2d 1247, 1253 (Pa.Super. 2006) (citation omitted) (stating,
“claims that a penalty is excessive and/or disproportionate to the offense can
raise substantial questions”).) Therefore, we shall proceed to consider the
merits of appellant’s discretionary sentencing claim.
“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
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of discretion.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super.
2015) (citations omitted), appeal denied, 126 A.3d 1282 (Pa. 2015).
Upon revoking one’s probation, a sentencing court
may choose from any of the sentencing options that
existed at the time of the original sentencing,
including incarceration. 42 Pa.C.S.A. § 9771(b).
However, the imposition of total confinement upon
revocation requires a finding that [appellant] has been
convicted of another crime, his conduct indicates it is
likely he will commit another crime if he is not
imprisoned, or such a sentence is essential to
vindicate the court’s authority of the court.
42 Pa.C.S.A. § 9771(c). Section 9721, which governs
sentencing generally, provides that in all cases where
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 sentence, a statement of the reason or
reasons for the sentence imposed.” [42 Pa.C.S.A. §
9721(b).] Failure to comply with these provisions
“shall be grounds for vacating the sentence or
resentence and resentencing the defendant.” Id.
Additionally, this Court has noted that the reasons
stated for a sentence imposed should reflect the
sentencing court’s consideration of the criteria of the
Sentencing Code, 42 Pa.C.S.A. § 9701, et seq., the
circumstances of the offense, and the character of the
offender. Commonwealth v. DeLuca, [] 418 A.2d
669, 670 ([Pa.Super.] 1980).
Bynum-Hamilton, 135 A.3d at 184-185.
Here, the record reflects that the trial court made the following
statement when sentencing appellant:
Well under the circumstances, I think it speaks to
something a little more.
And now, this 30th day of October, 2019, I find the
defendant has violated his probation on Counts 1 and
2; revoke same; resentence him this date at Counts 1
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and 2 to be housed, fed, kept and clothed at a state
correctional institution for not less than one year, nor
more than five years, sentences to run concurrently.
We will give the defendant time credit of 2 months,
16 days, and we note for the record that there are still
two, 60-month probationary periods that run
consecutive to this sentence.
Notes of testimony, 10/30/19 at 5.
The trial court imposed a sentence of total confinement without
including a statement explaining the reasons for the sentence on the record
and in open court. See 42 Pa.C.S.A. § 9721(b); Bynum-Hamilton, 135 A.3d
at 184-185. Accordingly, we vacate appellant’s judgment of sentence and
remand for resentencing.
Furthermore, we deny Attorney Muller’s motion to withdraw.
Judgment of sentence vacated. Motion to withdraw denied. Case
remanded. Jurisdiction relinquished.
Dubow, J. joins this Memorandum.
Bowes, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/29/2020
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