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[U] Commonwealth v. Nelson

Superior Court of Pennsylvania

February 28, 2014



Appeal from the Judgment of Sentence of April 11, 2013 In the Court of Common Pleas of Chester County Criminal Division at No.: CP-15-CR-0003427-2012




Jonathan Nelson ("Nelson") appeals from his April 11, 2013 judgment of sentence. Counsel for Nelson has filed a petition to withdraw as counsel and an "Anders/Santiago" brief.[1] We grant counsel's petition to withdraw, and affirm.

The trial court provides the following factual and procedural history of the case:

Following a two day jury trial, on March 20, 2013, [Nelson] was found guilty of one count of Driving Under the Influence of Alcohol to a degree that rendered him incapable of safe driving. 75 Pa.C.S.A. § 3802(a)(1). The jury further found that [Nelson] had refused to give a sample of his blood for testing after having been advised of the consequences, as provided for in Pa. Form. DL-26. This was [Nelson's] third DUI conviction within 10 years. An individual who violates Section 3802(a)(1) where the individual refused testing of blood or breath and who has one or more prior offenses commits a misdemeanor of the first degree. 75 Pa.C.S.A. § 3803(4). An individual who violates Section 3802(a)(1) and refused testing of blood or breath and is convicted of a third or subsequent offense within a 10 year period is subject to a mandatory minimum 1 year prison sentence. 75 Pa.C.S.A. § 3804(c)(3); § 3806(b). In addition, [Nelson] was found guilty by the trial judge of two summary offenses, Driving Under Suspension/DUI Related, 75 Pa.C.S.A. § 1543(b)(1) and violation of Traffic and Control Signals, 75 Pa.C.S.A. § 3112(a)(3)(i) ([Nelson] drove through a steady red light). On April 11, 2013, following a lengthy sentencing proceeding, we sentenced [Nelson] to a term of imprisonment of 16-32 months for the DUI conviction and 60 days consecutive incarceration for the offense of driving while operating privilege is suspended. We applied the RRRI Minimum to both sentences and, as aggregated, [Nelson's] aggregate minimum sentence is 13.5 months.
[Nelson] has four prior convictions of driving under the influence, three within 10 years. At the time of the instant DUI, as a consequence of a prior DUI conviction, [Nelson's] operating privilege was under suspension through September 2014. In addition, [Nelson] has two prior convictions for driving while operating privilege is suspended DUI related and seven additional convictions for driving while his operating privilege was suspended, not DUI related. Added to this list are multiple other summary convictions under the Vehicle Code.
At sentencing, trial counsel asked the court to consider a County Intermediate Punishment sentence, which the Commonwealth opposed, and which we declined to do.

Trial Court Opinion ("T.C.O."), 6/27/2013, at 1-3 (emphasis in original; capitalization modified).

On April 16, 2013, Nelson filed a post-sentence motion that challenged his sentence. On May 20, 2013, the motion was denied. On May 30, 2013, Nelson filed a notice of appeal. On May 31, 2013, the trial court ordered Nelson to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925 (b). Nelson timely complied.

Counsel has filed an Anders/Santiago brief with this Court, in which counsel asserts that Nelson has no non-frivolous issues to pursue on appeal. Counsel also has filed a corresponding petition to withdraw as counsel. This Court first must pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by Nelson. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief 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.

Counsel is required to provide a copy of the Anders brief to Nelson. Counsel also must send Nelson a letter that advises him of his right to "(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court's attention in addition to the points raised by counsel in the Anders brief." Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).

A review of counsel's brief demonstrates that she has complied with all of Santiago's requirements. The brief includes a summary of the case's history. See Nelson's Brief at 6-7. Counsel has identified the only issue that counsel believes could be raised, and has discussed why that issue is frivolous. Id. at 10-11. Counsel also provided a letter to Nelson that advised Nelson that he could obtain new counsel, proceed pro se, or raise additional issues with this Court. Letter, 9/6/2013.

Based upon our review of the Anders/Santiago brief and counsel's motion to withdraw, we conclude that counsel has complied substantially with Santiago. Having so concluded, we now must conduct our own review of the record to determine whether the case is wholly frivolous. Santiago, 978 A.2d at 354.

The issue considered and examined by counsel is as follows:
A. Whether the Sentencing Court abused its discretion when it declined to sentence Mr. Nelson to Chester County's Restrictive Intermediate Punishment Program ("Recovery Court")?

Nelson's Brief at 5.

Initially, there appears to be some confusion about the nature of the program to which Nelson was seeking admission. As the trial court notes:

Recovery Court is a Drug and Alcohol Treatment-Based Intermediate Punishment sentencing alternative. . . . The procedures for this Program provide, inter alia, that if approved, the District Attorney's Office will offer a plea bargain consistent with the treatment recommendation. . . . As indicated, it involves the applicant's acceptance of a plea bargain.

T.C.O. at 4 (emphasis omitted). Here, Nelson did not accept a plea bargain and would not have been eligible for Recovery Court.

Alternatively, Nelson also appears to argue that he should have been considered for the county Intermediate Punishment Program ("IPP"). IPP "is a sentencing alternative." T.C.O. at 3. This program is what was discussed at the sentencing hearing. Notes of Testimony ("N.T."), 4/11/2013, at 30-31, 33-34. Ultimately, we need not determine into which program Nelson sought admission, because, in its disposition of Nelson's post-trial motion, the trial court addressed both and discussed why it did not find either to be an appropriate sentence for Nelson. Order, 5/20/2013, at 1 n.1.

Nelson raises a challenge to the discretionary aspects of his sentence. There is no absolute right to review of a challenge to the discretionary aspects of a sentence and the appellant must raise a substantial question in order to obtain review of the merits of such a challenge. Commonwealth v. Titus, 816 A.2d 251, 254-55 (Pa. Super. 2003).

An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We 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. § 9781(b).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists 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.
As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. An appellant must articulate the reasons the sentencing court's actions violated the sentencing code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal quotation marks and modifications omitted; citations modified). We have held that an appellant must meet these requirements even in the context of Anders/Santiago. Titus, 816 A.2d at 256. Nelson filed a timely appeal and preserved the sentencing issue in his post-sentence motion. Nelson included in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence, as is required by Pa.R.A.P. 2119(f). Having complied with the first three requirements, we must next determine if Nelson's claim raises a substantial question.

The decision to sentence a defendant to IPP is within the court's discretion.

[T]he Legislature's intent was to give judges another sentencing option which would lie between probation and incarceration with respect to sentencing severity; to provide a more appropriate form of punishment/treatment for certain types of non-violent offenders; to make the offender more accountable to the community; and to help reduce the county jail overcrowding problem while maintaining public safety. Thus, the grant or denial of a defendant's request for IPP is largely within the sound discretion of the trial court.

Commonwealth v. Williams, 941 A.2d 14, 24 (Pa. Super. 2008).

To raise a substantial question, Nelson must explain why the court's exercise of discretion was inconsistent with the sentencing guidelines or contrary to the fundamental norms of sentencing. Nelson fails to articulate any such reasons, and, instead, merely asserts that his sentence was inconsistent with the guidelines. On the contrary, given his prior record score and the offense gravity score, Nelson's sentence was within the standard guideline range. We find that Nelson has not raised a substantial question regarding the discretionary aspects of his sentence. Therefore, this issue is frivolous.

Additionally, we have conducted an independent review of the record. We find no additional non-frivolous issues that could have been raised on appeal. Consequently, we grant counsel's petition to withdraw. Further, we affirm the judgment of sentence.

Judgment of sentence affirmed. Motion to withdraw granted.

Judgment Entered.

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