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[U] Commonwealth v. Turner

Superior Court of Pennsylvania

January 17, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ROBERT EARL TURNER, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ROBERT EARL TURNER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered January 3, 2013, In the Court of Common Pleas of Montgomery County, Criminal Division, at Nos. CP-46-CR-0007261-2009, CP-46-CR-0001564-2006.

BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Robert Earl Turner, appeals from the judgments of sentence entered following the revocation of his probation. In addition, counsel has filed a petition to withdraw and a 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 judgments of sentence.

The trial court summarized the history of these matters as follows:

A. CP-46-CR-0001564-2006
This appeal involves three separate theft cases, two of which were consolidated, and all of which are addressed herein for judicial efficiency. On February 15, 2006, at approximately 1:08 pm, Officer Richard P. Shanahan of the Upper Moreland Police Department responded to a retail theft at Toys 'R' Us in Upper Moreland Township, Montgomery County, Pennsylvania. When apprehended, [Appellant] was found to be in possession of $501.70 of stolen merchandise, in addition to cocaine paraphernalia. Thereafter, authorities took [Appellant] into custody and charged him with the following on Bill of Information 1564-06: Retail Theft, Use/Possession of Drug Paraphernalia, Theft by Unlawful Taking Movable Property, and False Identification to Law Enforcement Officer.
On June 9, 2006, [Appellant] entered an open guilty plea to Retail Theft and Use/Possession of Drug Paraphernalia. On November 6, 2006, the Court sentenced [Appellant] to undergo imprisonment for not less than eleven (11) months, nor more than twenty-three (23) months in the Montgomery County Correctional Facility, as well as consecutive probation for a period of two (2) years for the retail theft charge. With regard to his possession of drug paraphernalia conviction, the Court sentenced [Appellant] to one year of probation, consecutive to parole.
B. CP-46-CR-0007261-2009
On September 12, 2009, Officer Donald Baldwin of the Cheltenham Township Police Department responded to the Cheltenham Mall after receiving a report from a Mall employee of suspected shop-lifting. Officer Baldwin located [Appellant] in the Mall parking lot and found him to be in possession of $86.85 of stolen merchandise from Anna's Linen Store. During apprehension by police [Appellant] pushed the officers and attempted to flee. Officers eventually subdued [Appellant], who then verbally threatened an employee who confirmed the merchandise in [Appellant's] possession was stolen. Thereafter, police took [Appellant] into custody and charged him with the following on Bill of Information 7261-09 Terroristic Threats with Intent to Terrorize Another, Resisting Arrest, False Identification to Law Enforcement Officer, Retail Theft, and Intimidation of Witness/Victim.
On January 13, 2010, [Appellant] pled guilty to Terroristic Threats with Intent to Terrorize Another; Resisting Arrest, and False Identification to Law Enforcement Officer. The Court dismissed the charges of Retail Theft and Intimidation of Witness/Victim. Ultimately, the Court sentenced [Appellant] to undergo imprisonment of not less than eleven and a half (111/2) months, nor more than twenty-three (23) months in the Montgomery County Correctional Facility. In addition, the Court sentenced [Appellant] to probation for a period of two (2) years to run consecutive to parole.
C. CP-46-CR-0002749-2012
On April 1, 2012, Officer Bryan Rickards of the Abington Township Police Department responded to a call for suspect[ed] shop-lifting at the K-Mart in Abington Township, Montgomery County, Pennsylvania. K-Mart security had observed [Appellant] stealing $738.09 of merchandise from the store, in addition to attempting to take a customer's wallet. After forcibly apprehending [Appellant], he threatened to kill the customer who had accused him of the attempted robbery. On Bill of Information 2749-12, police charged [Appellant] with the following: Retail Theft and Resisting Arrest.
On July 11, 2012, [Appellant] stipulated that he had violated his probation imposed on the two prior cases. On January 3, 2013, [Appellant] pled guilty to Retail Theft and Resisting Arrest. The Court sentenced [Appellant] to undergo imprisonment for not less than one (1) year, nor more than five (5) years in a state correctional institution on the theft charge. For Resisting Arrest, [Appellant] was sentenced to undergo imprisonment for not less than six (6) months, nor more than two (2) years in a state correctional institution. In addition, the Court ordered [Appellant's] sentences to run concurrently.
As a consequence of his probation violation, the Court revoked [Appellant's] prior sentences[.] [On January 3, 2013, on] Bill of Information 1564-06, [Retail Theft and Drug Paraphernalia] the Court re-sentenced [Appellant] to undergo imprisonment for not less than eighteen (18) months, nor more than thirty-six (36) months in a state correctional institution to run concurrent with his other sentences. [Also on January 3, 2013, on] Bill of Information 7261-09, [Terroristic Threats, Resisting Arrest, and False Identification] the Court re-sentenced [Appellant] to undergo imprisonment for not less than twelve (12) months, nor more than twenty-four (24) months in a state correctional institution, also to run concurrent with [Appellant's] other sentences.
Thereafter, notwithstanding [Appellant's] prior representation by the Montgomery County Public Defender's Office, [Appellant] filed two pro se Motions for Reconsideration of Sentence. On January 14, 2013 and January 18, 2013, however, [Appellant] filed a total of three pro se Notices of Appeal. On February 5, 2013, Public Defender Timothy P. Wile, Esquire, entered his appearance on [Appellant's] behalf. [On February 21, 2013, the trial court denied Appellant's pro se post-sentence motions.] On May 7, 2013, after a thorough and conscientious review of the record, Mr. Wile filed a Pa.R.A.P 1925(c)(4) Statement ("1925(c)(4) Statement") in regard to each of [Appellant's] pro se appeals.

Trial Court Opinion, 6/12/13, at 1-4 (footnotes and citations omitted).[1]

At the outset, we note that "[w]hen 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 that counsel seeking to withdraw pursuant to Anders, McClendon, and 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.

In the case before us, counsel's brief complies with the requirements of Santiago. In addition, our review of counsel's petition to withdraw and supporting documentation reveals that counsel has satisfied all of the additional foregoing requirements. Counsel has furnished a copy of the brief to Appellant; he has advised Appellant 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 he has attached a copy of the letter sent to Appellant as required under Millisock. Counsel also avers that the appeal is frivolous. Petition for Leave to Withdraw at 3.

Once counsel has met his 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 issue presented by counsel in the Anders brief.

Counsel sets forth the following issue for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION BY IMPOSING A SENTENCE THAT IS UNDULY HARSH, EXCESSIVE, AND UNREASONABLE FOLLOWING THE REVOCATION OF TWO (2) ORDERS OF PROBATION PREVIOUSLY IMPOSED WITH RESPECT TO APPELLANT'S PRIOR RETAIL THEFT AND TERRORISTIC THREATS OFFENCES [sic]?

Anders Brief at 4.

As this Court recently clarified in Commonwealth v Cartrette, __A.3d__, 2013 PA.Super. 325 (Pa.Super. 2013 filed December 24, 2013) (en banc), our scope of review following the revocation of probation is not limited solely to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. Rather, it also includes determinations of challenges to the discretionary aspects of the sentence imposed. Specifically, we unequivocally held that "this Court's scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges." Id. at *11. Further, as we have long held, the imposition of sentence following the revocation of probation is vested within the sound discretion of the court, which, absent an abuse of that discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000).

We are also mindful that "[t]he right to appeal a discretionary aspect of sentence is not absolute." Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa.Super. 1999). Rather, where an appellant challenges the discretionary aspects of a sentence, an appellant's appeal should be considered to be 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):

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. [708]; (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)). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Id. (citing Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003)). See also Pa.R.Crim.P. 708, Cmt. (discussing proper preservation of issues challenging discretionary aspect of sentence imposed following revocation hearing).

Whether a particular issue constitutes a substantial question about the appropriateness of a sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001). As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.Super. 2006). An appellant must articulate the reasons the sentencing court's actions violated the sentencing code. Id.

Herein, the first three requirements of the four-part test are met, those being that Appellant brought an appropriate appeal, raised the challenge in his post-sentence motion, and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court.

In Appellant's Rule 2119(f) statement, he asserts that the sentencing court abused its discretion by failing to "give due weight and consideration to his mitigating factors at sentencing." Appellant's Brief at 13. As we have stated, "This Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review." Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788 (Pa.Super. 2010)). See also Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa.Super. 2007) (explaining that "[a] claim of inadequate consideration of mitigating factors does not raise a substantial question for our review"). Accordingly, Appellant's claim of abuse of discretion on the part of the sentencing court for failing to consider certain mitigating factors does not present a substantial question for our review. Thus, we decline to address this issue.

In summary, we determine that Appellant's counsel has complied with the requirements of Anders and that an appeal in this case would be wholly frivolous. Furthermore, we have conducted our own, independent review of the record. We do not discern any non-frivolous issues that Appellant could have raised. In light of the foregoing, we grant counsel's petition to withdraw and affirm the judgments of sentence.

Petition to withdraw granted. Judgments of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.


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