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[U] Commonwealth v. Bailey

Superior Court of Pennsylvania

June 20, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL A. BAILEY, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL A. BAILEY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered September 12, 2012, in the Court of Common Pleas of Erie County Criminal Division at Nos: CP-25-CR-0002676-2010., CP-25-CR-0002014-2011.

BEFORE: SHOGAN, OTT, and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

In these consolidated appeals, Michael A. Bailey (Appellant) challenges the judgment of sentence of 25 to 56 months' incarceration entered September 12, 2012, after he pled guilty to two counts of theft by unlawful taking, and one count each of unauthorized use of a motor vehicle, criminal trespass, and driving while operating privileges suspended or revoked.[1]Additionally, Appellant's counsel has filed a petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.

Appellant's judgment of sentence arises out of two separate incidents. The first incident occurred on or about June 28 to June 29, 2010, at which time Appellant removed from Tullio Towers, in the City of Erie, two computers valued at five hundred dollars each. Subsequently, Appellant was arrested and charged with two counts of theft by unlawful taking (docket no. 2676 of 2010).

The second incident occurred on July 5, 2011, wherein Appellant operated, without permission, his neighbor Michael Little's 1994 Buick Century. Mr. Little reported his car missing and Appellant was apprehended and charged with criminal trespass, unauthorized use of a motor vehicle and driving while his operating privilege was suspended or revoked (docket no. 2014 of 2011).

Appellant pled guilty to the charges at docket no. 2014 of 2011 on July 9, 2012. On July 19, 2012, Appellant entered pleas of no contest to the charges at docket no. 2676 of 2010. On September 12, 2012, Appellant was sentenced in absentia on all charges to an aggregate sentence of 25 to 56 months of incarceration, plus fines and costs. These timely appeals followed.[2]

On October 11, 2012, the trial court directed Appellant to file a concise statement of the matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). In response, counsel filed a statement of intent to file an Anders/McClendon brief, pursuant to Pa.R.A.P. 1925 (c)(4).[3] On appeal, counsel for Appellant has filed a petition for leave to withdraw as counsel and an Anders brief.

"When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005). Furthermore, there are clear mandates counsel seeking to withdraw pursuant to Anders/McClendon/Santiago must follow.

In order for counsel to withdraw from an appeal pursuant to Anders … certain requirements must be met:

(1) counsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous;
(2) counsel must file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and
(3) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.

Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).

In Santiago, the Supreme Court set forth specific requirements for the brief accompanying counsel's petition to withdraw:

[i]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel 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.

Santiago, 978 A.2d at 361.

Our review of counsel's petition to withdraw, supporting documentation, and Anders brief reveals that counsel has adequately satisfied the foregoing requirements. Counsel has furnished a copy of the brief to Appellant; advised him of his right to retain new counsel, to proceed pro se, or raise any additional points that he deems worthy of this Court's attention; and has attached a copy of the letter sent to the client with the Anders petition as required under Millisock, supra.[4] Counsel avers specifically that the appeal is frivolous because the sentence was not illegal and the court considered all appropriate factors, utilized the correct sentencing guidelines, and placed its reasoning for the sentence on the record. Anders Brief, at 6-7.

Once counsel has met his or her 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. Thus, we will now examine the issues set forth by counsel in the Anders brief that Appellant believes have arguable merit. See Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006) ("The essence of Anders is that counsel, without actually arguing against his or her own client, sets forth all arguments put forward by the client.").

In the Anders brief, counsel raises the sole issue of whether "the sentence in this case [was] manifestly excessive and clearly unreasonable, and not individualized as required by law, especially in that the sentence did not take into account [Appellant's] belief that he would receive a probationary sentence?" Anders' Brief at 1.[5] Appellant argues that the sentences imposed were "manifestly excessive and clearly unreasonable in that the court did not take into account the protection of the public and [Appellant's] rehabilitative needs, as a lighter sentence would have [served] the same purpose." Anders' Brief at 4. Thus, Appellant contends that the court "imposed a sentence harsher than that which would be required consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of [Appellant]." Id. Additionally, Appellant alleges that he "expected to receive a probationary sentence based on conversations he had had previously with prior attorneys and the Commonwealth." Id.

The sentencing challenge raised by Appellant is a challenge to the discretionary aspects of the sentence imposed by the trial court.[6] Our standard of review in such cases is one of abuse of discretion. 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. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). Moreover, where an appellant challenges the discretionary aspects of a sentence there is no automatic right to appeal, and an appellant's appeal should be considered a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

[a]n 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)).

Instantly, Appellant has met prongs one and three of this test by filing a timely notice of appeal and by including in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).[7] However, Appellant has failed to satisfy prong two of the above test as he did not preserve properly his discretionary aspects of sentencing issue at sentencing or in a timely motion to reconsider sentence pursuant to Pa.R.Crim.P. 720.

"Issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings." Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006) (emphasis added). "Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Id. at 1274. Moreover, failure to preserve properly a discretionary aspect of sentencing issue at sentencing or in a timely post-sentence motion "cannot be cured by submitting the challenge in a Rule 1925(b) statement." Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). Accordingly, Appellant has waived this issue. See Commonwealth v. Nischan, 928 A.2d 349 (Pa. Super. 2007) (holding that, in case where counsel has filed an Anders' brief, defendant waived for appellate review his claim that length of his incarceration was excessive and manifestly unreasonable as defendant did not preserve them during sentencing hearing or in post-sentence motions; determining issue wholly frivolous, counsel was granted permission to withdraw); Commonwealth v. Hartman, 908 A.2d 316 (Pa. Super. 2006) (same).

However, assuming, arguendo, that Appellant properly presented his discretionary aspect of sentencing claim in the court below, and that his claim raised a substantial question, [8] we would find that the claim is meritless.

Our review of discretionary challenges to the trial court's imposition of sentence is guided by the following principles:

Sentencing is a matter vested in the sound discretion of the sentencing judge. The standard employed when reviewing the discretionary aspects of sentencing is very narrow. We may reverse only if the sentencing court abused its discretion or committed an error of law. 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. We must accord the sentencing court's decision great weight because it was in the best position to review the defendant's character, defiance or indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d. 7, 11-12 (Pa. Super. 2007).

In this case, the trial judge, at sentencing, discussed the considerations attendant to the sentence he fashioned, as follows:

I have considered the presentence investigative report in its entirety, and I am going to make it a part of the record. I have considered the Pennsylvania Sentencing code and all its factors, the guidelines, and the various statements made here to me today.
Counsel for [Appellant is] kind of in a rough position because his client didn't show up. I would agree with you, it appears he's been active in the community in more ways than one. He's been active, as counsel pointed out for the prosecution, in the criminal area. Got robbery convictions in 1986, robbery conviction in 1992, theft convictions in '95, '97, got a simple assault charge in '06 and another theft charge in '07 and a summary in 2010.
I realize he's mentally ill, but if he were here, I would tell him like I tell other mentally ill people, a lot of people in society are mentally ill; they don't commit crimes. That's not an excuse for his behavior. And I think under the circumstances, given the fact he's been down the road before, has been under state sentences, that that's what we have to do with him here, given the facts of this case and given his background.
Having considered all those factors, it is the sentence of the court as follows: Starting at Docket 2676 of 2010, [Appellant] will pay the costs of prosecution and can be put on a monthly payment plan making monthly installments, sentenced to serve a period of confinement, the minimum of which will be 16 months and the maximum of which is 32 months. I am not going to indicate that I'm sentencing him because he is not here. I have enough room in the guidelines to sentence him appropriately. This is not going to be a factor. I am going to issue a bench warrant.
Give him credit from July 6th to August 9th of 2011 and March 23rd to March 26th of 2012. The fact that he has pending charges is of no moment here because he is presumed innocent on that. He should get mental health counseling and, other than that, standard terms and conditions as implemented by the Department of Corrections and Board of Probation and Parole.
Turning to count two of Docket No. 2676, [Appellant] will pay the costs of prosecution, be sentenced to serve a period of confinement, the minimum of which will be 16 months, the maximum of which will be 32 months. That will be served concurrently with count one. He is not eligible for Triple R-I consideration.
Turning to Docket No. 2014 of 2011, count one, unauthorized use, pay costs of prosecution and be sentenced to serve a period of incarceration, the minimum of which will be nine months, the maximum which will be 24 months. That eill be served consecutively to count one of Docket 2676 of 2010. …
Turning to count two, driving while operating privileges suspended or revoked, pay the costs of prosecution, a $200 fine, $30 to the Cat MCARE fund and $10 to the EMSA.
Turning to count there, criminal trespass, he will pay the costs of prosecution, be sentenced to serve a period of confinement, the minimum of which will be six months and the maximum of which will be 12 months. That will be served concurrently with count one of this docket, which is 2014. Everything here is a standard-range sentence.

N.T., 9/12/2012, at 12-15.

The record reflects that the trial judge was mindful of the sentencing guidelines, the presentence report, the facts and circumstances of the crime, Appellant's previous criminal history, his mental health problems and his need for stabilization. In addition, the record reflects the court's consideration of "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. § 9721. The terms of the sentence clearly rested within the discretionary power afforded to the trial court and, on this record, there would be no basis for the Court to conclude that the sentence was "clearly unreasonable."[9] Moreover, we note that where, as here, "the sentencing judge had the benefit of a presentence investigation report, it will be presumed that he or she was aware of the relevant information regarding the defendant's character and weighted those considerations along with mitigating statutory factors." Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009). See also Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006) (stating that "[t]he sentencing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by indicating that he or she has been informed by the pre-sentencing report; thus properly considering and weighing all relevant factors"). Lastly, Appellant's assertion that he thought he would receive probation rather than the sentence imposed is not supported by the certified record on appeal. Review of Appellant's plea and sentencing transcript do not support such a contention, and Appellant does not point us to any other documentation wherein any such promise or suggestion of leniency of sentence is extended. Accordingly, even if we were to address Appellant's argument on the merits, we would afford him no relief.

Turning to Appellant's claim contained in his pro se response, we find it belied by the certified record. Appellant claims that while he was charged with criminal trespass graded as a felony of the first degree, he pled guilty to the lesser charge of deviant trespass which is a misdemeanor three. However, he maintains that nonetheless he was sentenced on criminal trespass as a felony one. The sentencing transcript as well as Appellant's official sentencing order refute this claim. Appellant was clearly sentenced pursuant to 18 Pa.C.S. § 3503 (b)(1)(i), entitled "Defiant Trespasser" which is a subcategory of "Criminal Trespass" and is graded as a misdemeanor three, pursuant to 18 Pa.C.S. § 3503(b)(2). Accordingly, Appellant's claim is devoid of merit.

In conclusion, we have not only reviewed the Anders Brief filed on behalf of Appellant, but also have conducted an independent evaluation of the record in this case and concur with counsel's assessment that the appeal is wholly frivolous. Consequently, we grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel granted.


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