July 24, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
LEROY EDWARD YOUNG, JR., Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
LEROY EDWARD YOUNG, JR. Appellant
Appeal from the Judgment of Sentence of October 23, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002075-2010
BEFORE: DONOHUE, MUNDY AND OLSON, JJ.
Appellant, Leroy Edward Young, Jr., appeals from the judgment of sentence entered on October 23, 2012. On this direct appeal, Appellant's court-appointed counsel has filed both a petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant's counsel has complied with the procedural requirements necessary to affect withdrawal. Moreover, after independently reviewing the record, we conclude that the instant appeal is wholly frivolous. We therefore grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.
On July 6, 2010, Appellant pleaded guilty at two separate docket numbers: at docket number CP-23-CR-0002075-2010 (hereinafter "2075-2010"), Appellant pleaded guilty to driving under the influence of a controlled substance (DUI) and driving while his operating privilege was suspended or revoked; at docket number CP-23-CR-0003731-2010 (hereinafter "3731-2010"), Appellant pleaded guilty to possessing a controlled substance. On August 16, 2010, the trial court sentenced Appellant at both cases. Specifically, at docket number 2075-2010, the trial court sentenced Appellant to serve an aggregate term of three months to 23 months in jail, followed by a consecutive term of three years of probation; at docket number 3731-2010, the trial court sentenced Appellant to one year of probation, to be served consecutively to the sentence imposed at 2075-2010.
On January 20, 2012, while Appellant was on parole at docket number 2075-2010, Appellant was arrested for yet another DUI. That same day, Appellant's parole and probation officer filed a request for a bench warrant, accusing Appellant of violating his parole and probation at docket number 2075-2010 and of violating his probation at docket number 3731-2010. The trial court issued the bench warrant and scheduled a Gagnon I hearing for February 9, 2012. Following the Gagnon I hearing, the trial court concluded that there was probable cause that Appellant violated his parole and probation. The trial court thus scheduled a Gagnon II hearing for October 23, 2012.
During the Gagnon II hearing, the trial court learned that Appellant's newest DUI conviction constituted Appellant's fifth DUI conviction. As the trial court explained:
Not only does [Appellant] have a record of [DUI's], he also has a record of driving while his privileges have been suspended. So he just hasn't demonstrated he has any respect for his fellow citizens on the highway, or any respect for the law. And I believe that he needs a rehabilitative program. With five DUI's, we currently, in Delaware County, don't have anything that is adequate to meet his needs.
N.T. Gagnon II Hearing, 10/23/12, at 9.
The trial court then revoked Appellant's parole at docket number 2075-2010, revoked Appellant's probation at both docket numbers, recommitted Appellant to serve his full backtime (with immediate parole) on the parole violation, and resentenced Appellant to serve an aggregate term of 18 to 36 months in prison on the underlying convictions at docket numbers 2075-2010 and 3731-2010. Id. at 9-11.
On November 20, 2012, Appellant filed a notice of appeal from his judgment of sentence. Now on appeal, Appellant's court-appointed counsel has filed a petition for leave to withdraw and has accompanied this petition with an Anders brief. The Anders brief raises the following claim:
Whether the new sentences imposed upon [Appellant] are harsh and excessive where, in the aggregate, they require him to serve 18 to 36 months of incarceration?
Anders Brief at 2.
Before reviewing the merits of this appeal, however, this Court must first determine whether counsel has fulfilled the necessary procedural requirements for withdrawing as counsel. Commonwealth v. Miller, 715 A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy certain technical requirements. First, counsel must "petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous." Miller, 715 A.2d at 1207. 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 statutes on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client and advise the client "of [the client's] right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention." Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above 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, quoting Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981). It is only when both the procedural and substantive requirements are satisfied that counsel will be permitted to withdraw.
In the case at bar, counsel has met all of the above procedural obligations. We must, therefore, review the entire record and analyze whether this appeal is, in fact, wholly frivolous. Our analysis begins with the issue raised in the Anders brief.
As the Anders brief claims, the trial court abused its discretion when it imposed an "unduly harsh and excessive" sentence upon Appellant. Specifically, Appellant claims that, in rendering its sentence, the trial court failed to adequately consider the fact that Appellant "is 46 years old and very apologetic for his actions . . . [he] owns a home where his girlfriend and child reside, but they are in danger of losing it." Anders Brief at 5.
Appellant's claim does not challenge the revocation of his probation or the fact that the trial court imposed a sentence of total confinement upon Appellant. Rather, Appellant's claim challenges the discretionary aspects of his sentence. Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010) (claim that sentence is excessive is a challenge to the discretionary aspects of a sentence).
We note that "sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion." Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). Moreover, pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. ; (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) ("when a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that sentence either by objecting during the revocation sentencing or by filing a post-sentence motion").
Since Appellant was sentenced following the revocation of probation, the sentencing guidelines do not apply to Appellant's sentence. 204 Pa.Code § 303.1(b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). Nevertheless, in sentencing Appellant, the trial court was required to "consider the general principles and standards of the Sentencing Code." Commonwealth v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses these general principles in the following manner:
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(b). "The determination of whether a particular case raises a substantial question is to be evaluated on a case-by-case basis. Generally, however, in order to establish that there is a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal citations omitted).
In the case at bar, Appellant objected to his sentence during the sentencing proceeding and claimed that he should receive a lower sentence, given that he was "46 years old[, ] . . . very apologetic[, has] . . . a house that [he's] about ready to lose[, and has] a girlfriend who's sick." N.T. Gagnon II Hearing, 10/23/12, at 7-8. As such, Appellant preserved his discretionary aspects of sentencing claim on appeal. Appellant has not, however, raised a substantial question that the sentence imposed was inappropriate under the Sentencing Code. Indeed, Appellant claims only that the trial court "failed to adequately consider" certain mitigating evidence. As this Court has held:
[a]n allegation that the sentencing court "failed to consider" or "did not adequately consider" various factors does not raise a substantial question that the sentence was inappropriate. Such a challenge goes to the weight accorded to sentencing factors and will not be considered absent extraordinary circumstances.
Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993); see also Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003).
Here, Appellant simply claims that the sentencing court gave insufficient weight to a number of mitigating factors. This claim does not raise a substantial question that the sentence imposed was inappropriate. Therefore, we cannot reach the merits of Appellant's claim and his challenge fails.
Further, after an independent review of the entire record, we see nothing that might arguably support this appeal. The appeal is, therefore, wholly frivolous. Accordingly, we affirm Appellant's judgment of sentence and grant counsel's petition for leave to withdraw appearance.
Petition for leave to withdraw as counsel granted. Judgment of sentence affirmed.