February 4, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
RAFAEL VIVES, Appellant
Appeal from the Judgment of Sentence Entered November 19, 2012, In the Court of Common Pleas of Berks County, Criminal Division, at No. CP-06-CR-0003291-2010.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and PLATT [*] , JJ.
Appellant, Rafael Vives, appeals from the judgment of sentence imposed following revocation of his probation. Counsel has filed a petition to withdraw representation and 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 the judgment of sentence.
We summarize the history of this case as follows: Appellant entered a negotiated guilty plea at Docket No. 3291-2010, to Count 1, Burglary (Person Present), 18 Pa.C.S.A. § 3502(a), on November 23, 2010. Pursuant to the guilty plea agreement, the trial court imposed a split sentence of 106 days to twenty-three months of incarceration in the Berks County Prison, followed by three years of probation. N.T., 11/23/10, at 7–8. Pursuant to a stipulation, Appellant was immediately paroled to serve his probation sentence. Split Sentence Order, 11/23/10. While on probation, Appellant pled guilty at Docket No. 3160-2011 to theft by unlawful taking or disposition, 18 Pa.C.S.A. § 3291(A), and simple assault, 18 Pa.C.S.A. § 2701(A)(1). The trial court sentenced Appellant on the simple assault conviction to incarceration in the Berks County Prison for a term of twelve months to twenty-four months, followed by two years of probation for the theft conviction. N.T., 12/19/12, at 3.
The trial court conducted a probation violation hearing on November 19, 2012. Following the hearing, the trial court revoked Appellant's probation and re-sentenced him on the burglary conviction at Docket No. 3291-2010 to incarceration in a state correctional facility for a term of nine months to four years, to be served consecutively to the sentence imposed on the simple assault conviction at Docket No. 3160-2011. N.T., 11/19/12, at 12. Appellant's aggregate sentence was total confinement for a term of twenty-one months to forty-eight months. This appeal followed, and counsel seeks to withdraw his representation of Appellant.
"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 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. Furthermore, 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, advised him 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 has attached a copy of the letter he mailed to Appellant to the Anders petition as required under Millisock.
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 issues set forth by counsel in the Anders brief that Appellant believes have merit.
In the Anders brief, counsel presents two issues for this Court's consideration, which we have reproduced verbatim as follows:
1. The Sentencing Court erred by failing to advise the Defendant of his right to file a motion to modify his sentence and the time within which the right must be exercised in violation of Pennsylvania Rules of Criminal Procedure Rule 708(C)(3)(a); Defendant's subsequent failure to file any motion(s) to modify his sentence within the proscribed time period does not constitute a waiver because the Defendant was not made aware of his post sentence rights or the need to exercise those rights to preserve his claims.
2. The Sentencing Court abused its discretion when it sentenced the Defendant to an aggregate term of twenty-one (21) months to forty-eight (48) months of total confinement when such aggregate sentence was clearly unreasonable, in that the Court ordered the sentence, following probation revocation, in criminal action CP-06-CR-0003291-2012 to be served consecutive to the sentenced imposed in Criminal Action CP-06-CR-0003160-2011, Count 4, and further that the Court placed excessive emphasis on the need to punish the Defendant and Defendant's sentence imposed on CP-06-CR-0003160, while failing to consider Defendant's individual characteristics such as A) his admission of guilt; and B) his desire to enter a drug rehabilitation program.
Anders Brief at 6.
Initially, we note that Appellant's second issue challenges the discretionary aspects of his sentence. See Commonwealth v. Baker, 72 A.3d 652 (Pa.Super. 2013) (recognizing a claim that an aggregate sentence was excessive is treated as a challenge to the discretionary aspects of sentencing). Such claims are waived if the defendant does not raise them at sentencing or in a post-sentence motion. Commonwealth v. Shugars, 895 A.2d 1270, 1273–1274 (Pa.Super. 2006). However, if the sentencing court fails to advise a defendant that he has the right to file a post-sentence motion within ten days of the entry of the judgment of sentence, the defendant's sentencing claims are not waived on appeal. Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super. 2006).
Here, the record confirms that Appellant did not raise his claim at sentencing or in a post-sentence motion. In his defense, Appellant asserts through his first issue on appeal that he did not waive his sentencing claim because the sentencing court did not advise him of his post-sentence rights. Anders Brief at 16. The record supports Appellant's assertion. N.T., 11/19/12, at 12. Moreover, the trial court acknowledged its omission: "[A]t first glance, it would appear that [Appellant's] claims are waived. However, since the Court advised [Appellant] only of his thirty days to appeal, but not the ten days to file a post-sentence motion, [Appellant's] claims are not waived." Trial Court Opinion, 5/13/13, at 7. Accordingly, we resolve Appellant's first issue by agreeing with him that his second issue is not waived. Hence, we turn to Appellant's second issue.
An appellant wishing to appeal the discretionary aspects of a probation-revocation sentence has no absolute right to do so; rather, he must petition this Court for permission to do so. Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008); 42 Pa.C.S.A. § 9781(b). Before this Court may review the merits of a challenge to the discretionary aspects of a sentence, we must engage in a four-pronged analysis:
[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. 1410 [now Rule 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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006).
Here, Appellant has satisfied the first three requirements. He filed a timely appeal; as discussed above, his sentencing claim is preserved due to the sentencing court's failure to advise Appellant of his post-sentence rights; and Appellant's brief includes a Pa.R.A.P. 2119(f) statement of reasons relied upon for allowance of appeal. Appellant's Brief at 12. Thus, we next determine if Appellant's sentencing challenge raises a substantial question. A determination as to whether a "substantial question" exists is made on a case-by-case basis, and this Court will grant the appeal "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Sierra, 752 A.2d 910, 912–913 (Pa.Super. 2000) (quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc)).
In his Rule 2119(f) statement, Appellant argues that:
[t]he Court failed to consider the requisite factors, including Appellant's admission of guilt and need for treatment, resulting in a sentence that was so manifestly excessive as to constitute too severe a punishment in light of the record as a whole. . . . Appellant's claim of unreasonable and excessive sentencing raises a substantial question because the Court's [sic] abused its discretion by ignoring the intent of the sentencing scheme imposed by the judge in Docket No. 3160-2011, that determined that a county sentence and county supervision was appropriate, and rehabilitative needs of Appellant by imposing a consecutive sentence to Docket No. 3160-2011 which resulted in an aggregate sentence that was excessive upon its face.
Anders Brief at 13. In sum, Appellant argues that the imposition of a consecutive sentence of imprisonment following probation revocation was excessive in light of his admission of guilt and his need for rehabilitation.
One component of Appellant's challenge is a bald claim that the sentencing court abused its discretion by failing to consider mitigating factors, i.e., his admission of guilt and his need for rehabilitation. An allegation that the trial court failed to consider particular circumstances or factors in an appellant's case goes to the weight accorded to various sentencing factors and does not raise a substantial question. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013).
Another component of Appellant's challenge is a generic assertion that the sentencing court abused its discretion by imposing a manifestly excessive and unreasonable sentence. However, "a bald assertion that a sentence is excessive does not by itself raise a substantial question justifying this Court's review of the merits of the underlying claim." Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa.Super. 2013).
The final component of Appellant's challenge is that the sentencing court abused its discretion by imposing a consecutive sentence. Generally, such a claim does not raise a substantial question. Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005). To raise a substantial question, the decision to sentence consecutively must raise "the aggregate sentence to, what appears on its face to be, an excessive level in light of the criminal conduct at issue in the case." Commonwealth v. Mastromarino, 2 A.3d 581, 588 (Pa.Super. 2010) (citation omitted). Here, the evidence presented by the Commonwealth revealed that Appellant broke into the E.J. Fall Pretzel Company in Reading, Pennsylvania, on August 10, 2010. The bakery was not open for business at that time; however, the owners of the business were present in the office. They heard a noise in the rear of the bakery and called the police. Police officers arrived and found Appellant hiding in the rear of the bakery with "a bucket filled with pieces of copper piping and a welder's face shield." N.T. (Guilty Plea), 11/23/10, at 5. The value of the copper piping was $2, 504.32. Id.
Appellant was immediately paroled to serve his probation sentence and receive rehabilitative services. However, while on probation, Appellant was charged with robbery, which "was pled down to the Count 4 simple assault charge. Counts 1, 2, and 3 were robbery, theft by unlawful taking, receiving stolen property." N.T., 11/19/12, at 6. Because of the severity of the robbery offense, Appellant received an aggravated range sentence on the simple assault charge. Id. at 6–7. While on probation, Appellant did not participate in any programs. Id. at 9. Nor did he make any payments toward restitution, fines, or costs. Id. at 9–10. When Appellant asked for a concurrent sentence, the trial court responded:
The Court takes into account that this defendant -- the only way he can remain at Berks County Prison is if I make this concurrent, which then I'm saying it's okay, you can burglarize a business and do something else and commit a simple assault and I'm gonna have it all run together. Then what would be the point of having a parole violation hearing, we'd just give everybody a get-out-of-jail-free card.
N.T., 11/19/12, at 11.
Based upon the Commonwealth's evidence and the trial court's analysis, we conclude that the aggregate sentence of twenty-one months to four years of incarceration is neither grossly disparate to Appellant's conduct nor does it "viscerally appear as patently 'unreasonable.'" Mastromarino, 2 A.3d at 587–588 (quoting Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595 (Pa.Super. 2010)). Thus, Appellant has failed to raise a substantial question regarding the length of his sentence.
We conclude 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 affirm the judgment of sentence and grant counsel's petition to withdraw.
Counsel's petition for leave to withdraw representation granted. Judgment of sentence affirmed.