Com. v. Sanchez, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEREMIAS SANCHEZ :
:
Appellant : No. 1300 EDA 2019
Appeal from the Judgment of Sentence Entered May 9, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0406041-2005,
CP-51-CR-0701981-2005.
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 17, 2020
Jeremias Sanchez appeals from the judgment of sentence imposed
following the revocation of his probation. Additionally, Sanchez’s court-
appointed counsel has filed a motion to withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). We grant appellate counsel’s motion to withdraw and affirm
Sanchez’s judgment of sentence.
On July 26, 2005, Sanchez pled guilty to one count of possession with
intent to deliver at two separate dockets. Pursuant to the negotiated plea
agreement, the trial court sentenced Sanchez to one year in the intermediate
punishment (“IP”) program, “which included long-term inpatient drug
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* Retired Senior Judge assigned to the Superior Court.
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treatment, plus one year of reporting probation.” PCRA Court Opinion,
9/13/19, at 1. Additionally, Sanchez “was ordered to successfully complete
drug treatment, seek and maintain employment, undergo random urinalysis,
stay out of trouble with the law, perform 20 hours of community service and
pay costs and fines.” Id.The PCRA court summarized the subsequent, protracted facts and
procedural history as follows:
Shortly thereafter, [Sanchez] absconded from the drug
treatment program. He appeared before this [c]ourt on
January 13, 2006 for his first violation hearing. This [c]ourt
found him in technical violation and ordered a 90 day
modification of his IP sentence. On March 9, 2006,
[Sanchez] was paroled to an inpatient drug treatment
program. He once again absconded from the program. He
was apprehended by authorities more than a year later on
April 30, 2007. [Sanchez] appeared before this [c]ourt for
his second violation hearing on August 16, 2007. This
[c]ourt found him in technical violation, revoked his IP
probation, and sentenced him to 11½ to 23 months of
county incarceration plus 3 years [of] reporting probation
on each charge to run concurrently. [Sanchez] was ordered
to complete 90 days in the Options drug treatment program,
complete job training, take English language courses, and
comply with all terms and conditions of the sentence.
On April 1, 2009, [Sanchez] was arrested and charged
with [possession with intent to deliver and criminal
conspiracy]. He appeared before this [c]ourt on March 25,
2010 and pled guilty to these charges. [Sanchez] was
recommended to participate in the state IP program and
sentencing was deferred; however, [Sanchez] got into a
fight in jail while awaiting state IP approval and, as a result,
his request to participate was denied. On September 17,
2010, this [c]ourt sentenced him to 2½ to 5 years [of] sate
incarceration plus 5 years [of] reporting probation on all
three of his cases to run concurrent with one another.
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[Sanchez] was released on parole on April 6, 2014. On
October 21, 2014, he was arrested in Luzerne County and
charged with burglary and related charges. He pled guilty
to these charges on December 20, 2016 and was sentenced
to 18 to 36 months [of] incarceration.
PCRA Court Opinion, 9/13/19, at 2.
Given his Luzerne County convictions, Sanchez appeared for his fourth
probation violation hearing at the above two cases on May 9, 2017. At that
time, the trial court reviewed Sanchez’s criminal history since his 2005 guilty
plea, a probation officer’s summary report, as well as argument and
sentencing recommendations from both defense counsel and the
Commonwealth. In addition, Sanchez spoke on his own behalf.
After considering all of this information, the trial court found Sanchez in
direct violation and revoked his probation at each docket. The court then
sentenced Sanchez to 3 to 6 years of state incarceration at each docket, to
run consecutively, for an aggregate sentence of 6 to 12 years of incarceration.
In addition, the trial court ordered that this sentence run consecutively to the
Luzerne County burglary sentence he was already serving. On May 22, 2017,
Sanchez filed a counseled petition to vacate and reconsider his sentence. He
claimed the sentence was excessive for a variety of reasons. That same day,
Sanchez filed a pro se motion for a reconsideration of his sentence. There is
no indication in the certified record that the trial court acted upon either
motion.
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On June 16, 2017, the Defender’s Association of Philadelphia filed a
PCRA1 petition on Sanchez’s behalf, alleging their own ineffectiveness for
failing to file a timely notice of appeal as requested by Sanchez. The PCRA
court appointed counsel, and Sanchez’s direct appeal rights were reinstated
nunc pro tunc on September 11, 2017. PCRA counsel failed to file a notice of
appeal on Sanchez’s behalf within thirty days. Instead, the appeal was not
filed until six months later on March 12, 2018. By order entered June 1, 2018,
this Court quashed Sanchez’s appeal as untimely.
On September 13, 2018, Sanchez filed a second PCRA, in which he
sought new counsel and reinstatement of his appellate rights. The PCRA court
appointed new counsel, and, on January 17, 2019, Sanchez’s appellate rights
were reinstated for a second time. However, his counsel again did not file a
timely notice of appeal on his behalf. By order entered April 11, 2019, the
PCRA court removed that counsel and appointed current counsel (“appellate
counsel”). Appellate counsel entered his appearance on April 18, 2019, and,
thereafter, filed a notice of appeal on Sanchez’s behalf.2 Both Sanchez and
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1 See 42 Pa.C.S.A. §§ 9541-9546.
2 The certified record for each trial court docket contains a notice of appeal
listing both docket numbers. Although Sanchez included both trial court docket
numbers on his separate appeals, this fact no longer requires quashal. See
Commonwealth v. Johnson, ___ A.3d ___, ___ (Pa. Super. 2020) (en
banc), Slip Opinion at 12 (partially overruling Commonwealth v. Creese,
216 A.3d 1142 (Pa. Super. 2019), to the extent that Creese interpreted
Walker as requiring Superior Court to quash appeals when appellant filed
multiple notices of appeal and each notice lists all of the appealed from docket
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the trial court have complied with Pa.R.A.P. 1925. In this Court, current
counsel filed a motion to withdraw as counsel and an Anders brief. Sanchez
did not file a response to the motion or the Anders brief.
In the Anders Brief, appellate counsel asserts that there are no “non-
frivolous issues that support an appeal in this case” because Sanchez would
be unable to establish that the trial court abused its discretion in sentencing
him to six to twelve years in prison following his latest probation revocations.
See Anders Brief at 7-9.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, he/she must do the
following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel
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numbers). See also Commonwealth v. Larkin, ___ A.3d ___, ___ (Pa.
Super. 2020), Slip Opinion at 3 (accord).
In addition, although when appointing current counsel, the trial court
did not expressly reinstate Sanchez’s right to appeal nunc pro tunc, the trial
court addressed Sanchez’s claim. Given this circumstance, and the failure of
prior attorneys to litigate Sanchez’s appeal, we will treat as done “that which
ought to have been done,” in the interests of judicial economy, and we will
therefore address the merits of Sanchez’s claim. McCormick v.
Northeastern Bank of Pennsylvania, 561 A.2d 328, 330 n.1 (Pa. 1989);
see also Commonwealth v. Carter, 122 A.3d 388, 391-92 (Pa. Super.
2015).
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has determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the
appeal, but which does not resemble a no-merit letter; and
(3) furnish a copy of the brief to the defendant and advise
him of his right to retain new counsel, proceed pro se, or
raise any additional points he deems worthy of this Court’s
attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief
(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.
Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, appellate counsel has complied with each of the requirements of
Anders. He indicated that he conscientiously examined the record and
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determined that an appeal would be frivolous. Further, appellate counsel’s
Anders brief comports with the requirements set forth by the Supreme Court
of Pennsylvania in Santiago. Finally, the record includes a copy of the letter
that appellate counsel sent to Sanchez advising him of his right to proceed pro
se or retain alternate counsel and file additional claims, and stating his
intention to seek permission to withdraw. Accordingly, appellate counsel has
complied with the procedural requirements for withdrawing from
representation, and we will conduct an independent review to determine
whether Sanchez’s appeal is wholly frivolous.
The issue Sanchez wished to raise on appeal involved a challenge to the
discretionary aspects of his sentence. This Court has explained that, to reach
the merits of a discretionary sentencing issue, we must conduct a four-part
analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant's brief includes a
concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of
sentence [in accordance with 2119(f)]; and (4) whether the
concise statement raises a substantial question that the
sentence is appropriate under the sentencing code. . . . [I]f
the appeal satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Here, although appellate counsel filed a notice of appeal and a post-
sentence motion previously was filed on Sanchez’s behalf, the Anders Brief
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does not include a Pa.R.A.P. 2119(f) statement. However, we have previously
held that “[w]here counsel files an Anders brief, this Court has reviewed the
matter even absent a separate Pa.R.A.P. 2119(f) statement.”
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citations
omitted). Thus, we will address the merits of Sanchez’s sentencing claim.
Our standard of review when deciding a sentencing claim is as follows:
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 of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Shull, 148 A.3d 820, 831 (Pa. Super. 2016) (citation
omitted).
Here, at the time of sentencing, the trial court provided the following
reasons for its sentencing choice:
THE COURT: That’s right.
I have been around and around and around with
[Sanchez]. I have outlined all the times I tried to help him
since 2005. It’s now 2017. [Sanchez] decides to go out
and burglarize someone’s home in Luzerne County. And
there’s another direct violation. And, you know, he has to
understand that this kind of life that he’s leading [has] to
stop.
***
THE COURT: So the record is absolutely clear, in
addition to this being a direct violation, [Sanchez’s]
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sentence is absolutely necessary to vindicate the authority
of the [c]ourt. [Sanchez] has been thumbing his nose at
this [c]ourt since 2005. Every time I gave him a sentence
he always absconded. He always did things the way he
wanted to do it. And he’s never complied with any of the
terms and conditions of my sentence.
He absconded from two or three different drug treatment
programs . . . He’s never complied with this [c]ourt’s
sentence in all of the years he served under this [c]ourt’s
sentence. He has never done anything he was supposed to
do. He never completed not one drug program. He never
paid any of his fines and costs. He never did anything that
he was supposed to do. So that’s also the reason for my
sentence.
So it’s no surprise to me that [Sanchez] moved to
Luzerne County because he had absconded every single
time he ever got out of jail before that anyway.
N.T., 5/9/17, at 16-18.
The trial court found that Sanchez’s challenge to the discretionary
aspects of his sentence did not entitle him to relief. Amplifying its statements
at sentencing, in its Rule 1925(a) opinion the court first explained that its
aggregate sentence of 6 to 12 years of state incarceration “was well within
the statutory limits and as a reasonable exercise of this [c]ourt’s discretion in
light of [Sanchez’s] direct violation, absconding from supervision, continued
drug use, and failure to comply with any of the terms and conditions of his
sentence”. Trial Court Opinion, 9/13/19, at 6. The trial court then recounted
the prior sentences it imposed on Sanchez and how, once released from
custody, Sanchez committed new crimes. See id. at 6-7. Finally, the trial
court explained that it fashioned an individualized sentence for Sanchez
considering the sentencing factors regarding the protection of the public, the
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gravity of the offense in relation to the impact on the community, and his
rehabilitative needs. Id. at 7.
The trial court then summarized its reasons for sentencing Sanchez to
an aggregate term of six to twelve years of incarceration:
Since his guilty plea in 2005, the [c]ourt had given
[Sanchez] numerous chances to rehabilitate himself through
the County IP program, inpatient drug treatment, State IP
program, county incarceration and state incarceration.
Unfortunately, [Sanchez] failed to take his sentence
seriously and his conduct while on probation indicated that
he was not making meaningful progress towards
rehabilitation as he absconded from supervision, completely
ignored the terms and conditions of his sentence, and
committed new crimes. Revocation and a state sentence
was an appropriate sentence under the circumstances in
order to not only vindicate the authority of the court, but
also to aid in [Sanchez’s] rehabilitation and protect the
public from his criminal activities. In order to make this
determination, this [c]ourt considered [Sanchez’s] history
since his original negotiated guilty plea in 2005, reviewed
the probation officer’s summary report and
recommendation, heard argument from defense counsel
and the Commonwealth, and listened to [Sanchez’s]
allocution. After taking all of this into consideration, this
[c]ourt found it appropriate to impose a 3 to 6 year state
sentence on each case to run consecutively to one another,
for an aggregate term of 6 to 12 years [of] state
incarceration. As stated above, there is no requirement that
this [c]ourt impose the “minimum possible sentence.”
Rather, based upon [Sanchez’s] direct violations and
ongoing failure to take the necessary steps to comply with
any of the terms and conditions of his sentence, this [c]ourt
found it appropriate to sentence [Sanchez] to a term of state
incarceration.
Trial Court Opinion, 9/13/19, at 7-8.
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Our review of the record supports the trial court’s conclusions. The
court’s thorough review of Appellant’s prior crimes may be read as evincing
the court’s concern that past attempts at rehabilitating Appellant not only
failed, but led to a continuation of criminal behavior once released from
incarceration. As the court noted, a long sentence of state incarceration would
aid Sanchez in rehabilitation where other attempts failed to do so.
Appellate counsel notes that Sanchez claimed his sentence was
excessive largely because the individual terms of incarceration on each charge
at these dockets were imposed consecutively, as well as consecutive to his
Luzerne County sentence. As noted by the trial court, this claim is without
merit because “[i]t is well-settled law in Pennsylvania that a sentencing court
has discretion ‘to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.’”
Trial Court Opinion, 9/13/19, at 8 (quoting Commonwealth v. Johnson-
Daniels, 167 A.3d 17, 28 (Pa. Super. 2017) (citations omitted). This is
especially true where, as in the present case, there are separate crimes with
multiple victims. See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.
Super. 1995) (explaining that there is no reason an appellant should be
afforded a “volume discount” for his crimes by having all of the sentences run
concurrently). Thus, Sanchez’s discretionary challenge to his sentence is
wholly frivolous.
Finally, as required by Anders, we have independently reviewed the
record in order to determine whether there are any non-frivolous issues
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present in this case. Our independent review of the record discloses no other
non-frivolous issues that Sanchez could have raised and that appellate counsel
overlooked. See Dempster, supra. Having concluded that there are no
meritorious issues, we grant appellate counsel’s petition to withdraw and
affirm Sanchez’s judgment of sentence.
Judgment of sentence affirmed.
Judge Bowe’s joins the memorandum.
Judge Strassburger files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2020
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