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[U] Commonwealth v. Gause

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MARION GAUSE Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 1, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001478-2012 CP-40-CR-0001482-2012 CP-40-CR-0003635-2012

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, Marion Gause, appeals from the April 1, 2013 aggregate judgment of sentence of 33 to 78 months' imprisonment, followed by one year probation, imposed after pleading guilty to two counts each of possession with intent to deliver and criminal conspiracy, and one count each of simple assault, resisting arrest, and possession of a controlled substance.[1] Contemporaneously with this appeal, counsel has requested leave to withdraw in accordance with Anders v. California, 386 U.S. 738 (1967), and its progeny. After careful review, we grant counsel's petition to withdraw and affirm the judgment of sentence.[2]

The trial court has summarized the relevant facts and procedural history, as follows.

On January 3, 2013[, Appellant], under Criminal Information No. 1478 of 2012 pled guilty to Possession with Intent to Deliver and Criminal Conspiracy and under Criminal No. 1482 of 2012 plead guilty to Possession with Intent to Deliver and Criminal Conspiracy.
On January 25, 2013[, Appellant], under Criminal Information No. 3635 of 2012, pled guilty to Simple Assault, Resisting Arrest and Possession of a Controlled Substance. [Appellant] was sentenced on April 1, 2013[, ] as follows:
Criminal Information No. 1482 of 2012, Count 1 Possession with Intent to Deliver twenty[-]four (24) months to fifty-four (54) months state confinement followed by twelve (12) months of Special Probation; Count 4 Criminal Conspiracy twenty[-]four (24) months to fifty-four (54) months concurrent to Count 1.
Criminal Information No. 1478 of 2012, Count 1 Possession with Intent to Deliver twenty[-]four (24) months to fifty-four (54) months state confinement followed by twelve (12) months of Special Probation; Count 3 Criminal Conspiracy twenty[-]four (24) months to fifty-four (54) months concurrent to the sentence on Count 1, No. 1482 of 2012.
Criminal Information No. 3635 of 2012, Count 1 Simple Assault nine (9) months to twenty[-]four (24) months consecutive to Count 1 No. [] 1482 of 2012; Count 2 Resisting Arrest nine (9) months to twenty[-]four (24) months concurrent to Count 1 No. 3635 of 2012; Count 4 Possession of Controlled Substance nine (9) months to twenty[-]four months concurrent to Count 1 No. 3635 of 2012;
On April 10, 2013[, Appellant] filed a [timely] Motion to Modify Sentence which was denied by Order dated April 16, 2013.

Trial Court Opinion, 6/16/13, at 1-2. On May 13, 2013, Appellant filed a timely notice of appeal.[3]

In her Anders brief, counsel raises the following issue on Appellant's behalf.

1. Whether the [t]rial [c]ourt abused its discretion in sentencing [] Appellant to consecutive sentences[?]

Anders Brief at 1.

"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. Titus, 816 A.2d 251, 254 (Pa.Super. 2003) (citation omitted). For cases where the briefing notice was issued after August 25, 2009, as is the case here, an Anders brief shall comply with the requirements set forth by our Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

[W]e hold that in 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.

Id. at 361. Additionally, counsel must furnish the appellant with a copy of the brief, advise him in writing of his right to retain new counsel or proceed pro se, and attach to the Anders petition a copy of the letter sent to appellant as required under Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (holding that, "[w]hile the Supreme Court in Santiago set forth the new requirements for an Anders brief, … the holding did not abrogate the notice requirements set forth in Millisock that remain binding legal precedent") (footnote omitted). "After counsel has satisfied these requirements, we must conduct our own review of the trial court proceedings and independently determine whether the appeal is wholly frivolous." Titus, supra at 254 (citation omitted).

In the instant matter, we conclude that counsel's Anders brief complies with the requirements of Santiago, supra. First, counsel has provided a procedural and factual summary of the case with references to the record. Second, counsel advances relevant portions of the record that arguably support Appellant's sentencing claim on appeal. Third, counsel concluded Appellant's appeal is frivolous as it "does not present a substantial question regarding the discretionary aspects of sentence." Anders Brief at 8. Lastly, counsel has complied with the requirements set forth in Millisock, supra. As a result, we proceed to conduct an independent review to ascertain if the appeal is indeed wholly frivolous.

Instantly, Appellant argues the trial court abused its discretion "in sentencing him to consecutive terms of incarceration with regard to the sentence he received on Criminal Information No. 3635 of 2012, Simple Assault." Anders Brief at 7.

Our standard of review in assessing whether a trial court has erred in fashioning a sentence is well settled. "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. Holiday, 954 A.2d 6, 9 (Pa.Super. 2008), appeal denied, 972 A.2d 520 (Pa. 2009).

In fashioning a sentence, a judge is obligated to follow the general principle that 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. A court is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005) (citations and quotation marks omitted), appeal denied, 890 A.2d 1057 (Pa. 2005).

Where an appellant challenges the discretionary aspects of his sentence, as is the case here, 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., Jr., 932 A.2d 155, 163 (Pa.Super. 2007). We will grant an appeal challenging the discretion of the sentencing court only where the appellant has advanced a colorable argument that the sentence is inconsistent with the Sentencing Code or contrary to the fundamental norms that underlie the sentencing process. Hyland, supra at 1183. In other words, an appellant must seek permission from this Court to appeal and must establish that a substantial question exists that the sentence was not appropriate under the Sentencing Code. Commonwealth v. Mouzon, 812 A.2d 617, 627-628 (Pa. 2002); 42 Pa.C.S.A. § 9781(b).

Prior to reaching the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine the following.

(1) [W]hether 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).

Commonwealth v. Prisk, 13 A.3d 526, 532 (Pa.Super. 2011).

Applying the four-factor test to the present matter, we conclude Appellant has complied with the first two requirements. However, Appellant's brief does not include a concise statement as required by Rule 2119(f). See Pa.R.A.P. 2119(f). Nevertheless, because the Commonwealth has not objected to this omission, we may examine the fourth prong to determine whether a substantial question exists. See Commonwealth v. Yeomans, 24 A.3d 1044, 1049 (Pa.Super. 2011), citing Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa.Super. 2005) (stating, "when the appellant has not included a Rule 2119(f) statement and the appellee has not objected, [we] may ignore the omission and determine if there is a substantial question that the sentence imposed was not appropriate"). Accordingly, we proceed to consider whether Appellant has presented a substantial question for our review.

"A substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the [sentencing] code or is contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.Super. 2008) (citation omitted), appeal denied, 13 A.3d 474 (Pa. 2010); see also 42 Pa.C.S.A. § 9781(b).

As noted, Appellant contends the trial court abused its discretion by sentencing him to a consecutive sentence as opposed to a concurrent sentence on the simple assault count. Anders Brief at 7. This Court has held that a trial court's discretion to sentence Appellant to a consecutive sentence does not raise a substantial question.

We have stated that the imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court. Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa.Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (citing Commonwealth v. Hoag, 445 Pa.Super. 455, 665 A.2d 1212, 1214 (1995)). Long standing precedent of this Court recognizes that 42 Pa.C.S.A. § 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (citing Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995)). A challenge to the imposition of
consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of sentence. Lloyd, 878 A.2d at 873. "We see no reason why [a defendant] should be afforded a 'volume discount' for his crimes by having all sentences run concurrently." Hoag, 665 A.2d at 1214. Also, an allegation that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate. Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa.Super. 2000). Accordingly, Appellant's assertion of abuse of discretion for imposing consecutive sentences without properly considering mitigating factors fails to present a substantial question to justify this Court's review of his claim.

Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009). Accordingly, we conclude Appellant's claim that the trial court erred in sentencing Appellant to consecutive rather than concurrent sentences fails to raise a substantial question for our review.[4]

For all the foregoing reasons, we agree with counsel that Appellant's appeal is "wholly frivolous." Titus, supra at 254. Accordingly, we grant counsel's petition to withdraw and affirm the trial court's April 1, 2013 judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted. Judge Olson Concurs in the Result.


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