Com. v. Mowery, T. ( 2020 )

J-S17017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TODD A. MOWERY
Appellant No. 2002 MDA 2019
Appeal from the Judgment of Sentence imposed November 13, 2019
In the Court of Common Pleas of Lackawanna County
Criminal Division at No: CP-35-CR-0000624-2018
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 09, 2020
Appellant, Todd A. Mowery, appeals from the judgment of sentence
imposed in the Court of Common Pleas of Lackawanna County on November
13, 2019. Counsel has filed a brief and petition to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s petition to withdraw,
and affirm Appellant’s judgment of sentence.
The factual and procedural background is not at issue. Briefly, on
August 26, 2019, Appellant entered an open guilty plea to one count of simple
assault, a misdemeanor of the second degree carrying a maximum fine of
$5,000 and two years’ imprisonment. Prior to acceptance of the plea,
Appellant completed and signed a written guilty plea colloquy, which was
supplemented by an oral colloquy on the record. The colloquies informed
J-S17017-20
Appellant of the nature of the charges against him, the rights he was giving
up, and the maximum sentence for the crime. Following these colloquies,
Appellant admitted to committing simple assault.
On November 13, 2019, the trial court sentenced Appellant to 12 to 24
months’ incarceration. After the trial court denied Appellant’s motion for
reconsideration, Appellant filed the instant appeal. In response to the trial
court’s order pertaining to the filing of a Pa.R.A.P. 1925(b) concise statement,
counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4), informing the trial
court of his intention to file an Anders brief instead of a concise statement
pursuant to Rule 1925(b).
The Anders brief challenges the discretionary aspects of Appellant’s
sentence (based on the summary of the argument and the Pa.R.A.P. 2119(f)
statement), jurisdiction of the trial court, validity of the plea, and legality of
the sentence (based on the review of argument section).1 Before we address
the merits of the challenge, however, we must consider the adequacy of
counsel’s compliance with Anders and Santiago. Our Supreme Court
requires counsel to do the following.
____________________________________________
1 We previously denied counsel’s petition to withdraw and remanded to the
trial court for counsel to file a proper Anders brief or an advocate brief. See
Commonwealth v. Mowery, No, 2002 MDA 2019, unpublished
memorandum at 5 (Pa. Super. filed August 14, 2020). On August 28, 2020,
counsel filed a new Anders brief and application to withdraw, which is the
subject of the instant appeal. Appellant did not respond to counsel’s Anders
brief and application to withdraw.
-2-
J-S17017-20
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.
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. Orellana, 86 A.3d 877, 879–80 (Pa. Super. 2014).
As noted, in his Rule 2119(f) and summary of the argument, Appellant
argues that the sentence was excessive. In the argument section of the brief,
however, Appellant reiterates that since Appellant pled guilty, Appellant’s
reasons for challenging the sentence are limited to three grounds: jurisdiction
of the court, validity of the plea, and legality of the sentence. The only
difference between the current Anders brief and the previous one is that
counsel now recognizes that the discretionary aspects of Appellant’s sentence
can be challenged.
-3-
J-S17017-20
We will address the challenge to the discretionary aspects of his
sentence first. Challenges to the discretionary aspects of sentence are
reviewed for an abuse of discretion. Commonwealth v. Moury, 992 A.2d
162, 169 (Pa. Super. 2010). As we reiterated in Moury:
[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 Court 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.
Id. at 169-70 (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (internal citations omitted)).
Additionally, because “there is no absolute right to appeal when
challenging the discretionary aspect of a sentence,” Commonwealth v.
Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013), an appellant challenging the
discretionary aspects of a sentence must invoke this Court’s jurisdiction by
satisfying a four-part test. We must determine: 1) whether the appellant has
filed a timely notice of appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify sentence; (3) whether
the appellant’s brief has a fatal defect; and (4) whether there is a substantial
-4-
J-S17017-20
question that the sentence appealed from is not appropriate under the
Sentencing Code. Moury, 992 A.2d at 169-70.
For purposes of our review, we accept that Appellant has met the first
three requirements of the above test. Therefore, we must determine whether
Appellant raised a substantial question. Whether a particular issue constitutes
a substantial question regarding the appropriateness of sentence is a question
to be evaluated on a case-by-case basis. See, e.g., Commonwealth v.
Kenner, 784 A.2d 808, 811 (Pa. Super. 2001), appeal denied, 796 A.2d 979(Pa. 2002).
As noted in Commonwealth v. Mastromarino, 2 A.3d 581 (Pa. Super.
2010),
[a] substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the sentencing
process. At a minimum, the [Pa. R.A.P.] 2119(f) statement must
articulate what particular provision of the code is violated, what
fundamental norms the sentence violates, and the manner in
which it violates that norm.
Id. at 585-86 (citation omitted); see also 42 Pa.C.S.A. § 9781(b).
A review of Appellant’s statement of questions and Pa.R.A.P. 2119(f)
statement reveals that Appellant failed “to articulate what particular provision
of the code is violated, what fundamental norms the sentence violates, and
the manner in which it violates that norm.” Pa.R.A.P. 2119(f). Indeed,
Appellant merely argues that the sentence was “harsh” and that he should
have been given probation instead of imprisonment. Appellant’s Brief at 4.
-5-
J-S17017-20
Bold allegations of excessiveness, such the one raised here, are insufficient to
raise a substantial question for our review. See, e.g., Commonwealth v.
Bromley, 862 A.2d 598 (Pa. Super. 2004) (defendant did not raise substantial
question by merely asserting sentence was excessive when he failed to
reference any section of Sentencing Code potentially violated by sentence);
Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007) (bald
allegation of excessiveness does not raise a substantial question). As such,
we find Appellant’s bald allegation insufficient to permit discretionary review.
Even if we were to address the merits of the contention (i.e., excessive
sentence), Appellant would not be entitled to relief.
The trial court, after considering, inter alia, the pre-sentence
investigation report, imposed a sentence falling within the standard range of
the sentencing guidelines. Regarding the reasons for the sentence imposed,
the record shows that trial court did not credit Appellant’s argument that a
probationary sentence, as suggested by defense counsel, would suffice for
Appellant’s rehabilitation, and it did not believe that Appellant did anything to
address his issues with alcohol even after the conduct that give rise to the
instant criminal matter. Indeed, the trial court noted:
[T]here is nothing in his record that indicates that. Quite frankly,
the fact that he failed to go for any type of treatment prior and
indicated that he was out of it that evening of the assault that he
doesn’t remember what happened and continues to indulge and
has had no motivation whatsoever, the sentence will be in the
standard range of 12 to 24 months.
Id. at 7.
-6-
J-S17017-20
In light of the foregoing, we conclude that the trial court did not abuse
its discretion in fashioning Appellant’s sentence.
Next, we address the claim that the trial court lacked jurisdiction to take
Appellant’s plea. We disagree.
It goes without saying that jurisdiction is of two sorts: jurisdiction
of the subject matter in the case, and jurisdiction of the parties
involved. An objection to lack of subject-matter jurisdiction can
never be waived; it may be raised at any stage in the proceedings
by the parties or by a court in its own motion. The familiar axiom
that a guilty plea waives all nonjurisdictional issues is merely a
reflection of this general principle. Jurisdiction of the person, on
the other hand, may be created by the consent of a party, who
thereby waives any objection to defects in the process by which
he is brought before the court. We have no doubt that a plea of
guilty constitutes a waiver of jurisdiction over the person of the
defendant.
Commonwealth v. Little, 314 A.2d 270, 272 (Pa. 1974) (internal citations
and quotation marks omitted).
Turning to subject matter jurisdiction, “our initial inquiry is directed to
the competency of the court to hear and determine controversies of the
general class to which the case presented for consideration belongs.” Id. In
the instant matter the competency of the Court of Common Pleas of
Lackawanna County to entertain a guilty plea by Appellant relating to criminal
conduct that occurred within Lackawanna County is beyond question.2
____________________________________________
2 Article V, Section 5(b) of the Pennsylvania Constitution provides that the
courts of common pleas of each judicial district of the Commonwealth are
-7-
J-S17017-20
“[T]o invoke this jurisdiction, something more is required; it is
necessary that the Commonwealth confront the defendant with a formal and
specific accusation of the crimes charged.” Id. at 273.
In Commonwealth v. King, --- A.3d ----, 2020 WL 4140069 (Pa. July
21, 2020), the Supreme Court noted that “the continuing validity of Little’s
statement that formal notice is a component of subject matter jurisdiction is
suspect.” Id. at *5 n.9. In the Anders brief, which was filed after the
issuance of King, Appellant makes no mention of King. Even if a formal
notice is no longer a component of subject matter jurisdiction, notice to
Appellant is not at issue here. Accordingly, Appellant’s claim that the trial
court lacked jurisdiction to entertain Appellant’s guilty plea is without merit.
Next, Appellant alleges that his plea was unknowing and involuntary.
We disagree.
“Our law is clear that, to be valid, a guilty plea must be knowingly,
voluntarily and intelligently entered.” Commonwealth v.
Pollard, 832 A.2d 517, 522 (Pa. Super. 2003). In
Commonwealth v. Fluharty, [632 A.2d 312 (Pa. Super. 1993)],
we set forth guidelines to determine the validity of a guilty plea:
In order for a guilty plea to be constitutionally valid,
the guilty plea colloquy must affirmatively show that
the defendant understood what the plea connoted and
its consequences. This determination is to be made by
examining the totality of the circumstances
surrounding the entry of the plea. [A] plea of guilty
will not be deemed invalid if the circumstances
____________________________________________
vested with “unlimited original jurisdiction in all cases except as may
otherwise be provided by law.”
-8-
J-S17017-20
surrounding the entry of the plea disclose that the
defendant had a full understanding of the nature and
consequences of his plea and that he knowingly and
voluntarily decided to enter the plea.
Id. at 314 (quotation marks and citations omitted). “Our law
presumes that a defendant who enters a guilty plea was aware of
what he was doing. He bears the burden of proving otherwise.”
Pollard, 832 A.2d at 523 (citations omitted). “[W]here the record
clearly demonstrates that a guilty plea colloquy was conducted,
during which it became evident that the defendant understood the
nature of the charges against him, the voluntariness of the plea is
established.” Commonwealth v. McCauley, 797 A.2d 920, 922
(Pa. Super. 2001). Thus,
[a] court accepting a defendant’s guilty plea is
required to conduct an on-the-record inquiry during
the plea colloquy. The colloquy must inquire into the
following areas:
(1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo
contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has
the right to trial by jury?
(4) Does the defendant understand that he or she is
presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range
of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound
by the terms of any plea agreement tendered unless
the judge accepts such agreement?
Pollard, 832 A.2d at 522–23 (citations omitted).
Commonwealth v. Rush, 909 A.2d 805, 808-09 (Pa. Super. 2006).
Applying the above authorities, we conclude that the record belies
Appellant’s assertion that his plea was not entered knowingly and/or
involuntarily. Indeed, a review of the written guilty plea colloquy and the oral
plea colloquy shows that each of the six above inquiries was thoroughly
-9-
J-S17017-20
covered, and it shows that Appellant had a full understanding of the nature
and consequences of his plea and that he knowingly and voluntarily decided
to enter the guilty plea.
As summarized above, on August 26, 2019, Appellant pled guilty to the
amended count of simple assault. Prior to the trial court accepting the guilty
plea, Appellant completed and signed a written guilty plea colloquy, which was
supplemented by an on-the-record oral colloquy. The colloquies informed
Appellant of the nature of the charges against him, the rights he was giving
up by pleading guilty, and the maximum sentence for the crime of simple
assault. Finally, Appellant admitted that he intentionally, knowingly, or
recklessly caused bodily injury to the victim by placing his fingers inside the
victim’s vagina and threatened her. See N.T. Guilty Plea Hearing, 8/26/19,
at 2-4. In light of the foregoing, we conclude that Appellant’s claim that his
guilty plea was not entered knowingly and/or voluntarily is without merit.
Finally, while Appellant alleges that the sentence imposed was illegal,
the argument associated with this legality of sentence claim is more properly
a challenge to the discretionary aspects of the sentence. Indeed, Appellant
discusses the sentencing discretion of the trial court. Anders Brief at 13.
Even as a challenge to the discretionary aspects, there is nothing in the record
that would support such a claim for the reasons provided infra in connection
with the challenge to the discretionary aspects of his sentence.
- 10 -
J-S17017-20
We have conducted an independent review of the record and addressed
Appellant’s arguments on appeal. Based on our conclusions above, we agree
with Appellant’s counsel that the issues Appellant seeks to litigate in this
appeal are without merit. We affirm the judgment of sentence and grant
counsel’s application to withdraw.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/09/2020
- 11 -