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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RICHARD SMITH, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RICHARD SMITH, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 7, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005408-2009

Appeal from the Judgment of Sentence March 7, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004818-2007

BEFORE: BENDER, P.J.E., WECHT and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

Richard Smith (Appellant) appeals from his March 7, 2013 judgment of sentence, which the trial court imposed after revoking Appellant's probation. In addition, Appellant's counsel has filed a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant the petition to withdraw.

In 2007, at trial court docket number CP-23-CR-0004818-2007, Appellant pled guilty to his second driving under the influence (DUI) violation pursuant to 75 Pa.C.S. § 3802(d). For that conviction, Appellant received a prison sentence of 90 days to 23 months, plus a consecutive sentence of three years of probation.

In 2009, Appellant again was arrested for DUI. That arrest violated the terms of his probation. In addition, following that arrest, Appellant pled guilty to violating, inter alia, 75 Pa.C.S. § 3802(c), at trial court docket number CP-23-CR-0005408-2009. For that conviction, Appellant received a prison sentence of 90 days to 23 months and a consecutive sentence of three years of probation.

In November of 2012, Appellant was convicted and sentenced for possessing crack cocaine and another DUI. On March 7, 2013, the trial court held a Gagnon II[1] hearing to address whether these convictions constituted violations of the terms of Appellant's probation.[2] The trial court found that Appellant violated his probation; thus, the court revoked his probation. The court sentenced Appellant to 18 to 36 months in prison at both docket number CP-23-CR-0004818-2007 and docket number CP-23-CR-0005408-2009. The court ordered these sentences to be served concurrently to one another but consecutively to Appellant's new sentences. The court also determined that Appellant is eligible for the Recidivism Risk Reduction Incentive program.[3]

Appellant timely filed a motion to reconsider his sentence. The trial court denied the motion, and Appellant timely filed a notice of appeal. The court ordered Appellant to comply with Pa.R.A.P. 1925(b). Appellant's counsel subsequently filed a statement pursuant to Pa.R.A.P. 1925(c)(4), indicating that he intended to file an Anders brief in this Court. The trial court issued an opinion, and counsel then sought to withdraw his representation of Appellant in this Court.

The following principles guide our review of this matter:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof….
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention.
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007) (citations omitted).

Our Supreme Court has clarified portions of the Anders procedure:

Accordingly, we 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.

Santiago, 978 A.2d at 361.

We find that counsel has substantially complied with the requirements of Anders and Santiago. Therefore, we will undertake a review of the appeal to determine if it is wholly frivolous.

According to counsel, Appellant wishes to challenge the discretionary aspects of his sentence.

It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.... [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013) (citations omitted).

Appellant timely filed a notice of appeal and the Anders brief contains an adequate concise statement of the reasons relied upon for allowance of appeal. As to whether Appellant preserved the issue he wishes to raise on appeal, he timely filed a motion to reconsider his sentence. In that motion, Appellant claimed his sentence was harsh and excessive "under the circumstances." Motion to Reconsider Sentence, 3/11/2013, at ¶ 7. The only "circumstances" Appellant mentions in the motion are that: (1) he was gainfully employed as an electrician at the time of his incarceration; (2) he has a nineteen year old son who attends Williamson Trade School; (3) he never has been convicted of a felony; (4) he was attending AA in prison to address his substance abuse issues; and (5) he completed a program called "Therapeutic Community, " which is a class aimed at anger management and life skills. Id. at ¶¶ 2-6.

These circumstances can be described as mitigating factors. Appellant made the trial court aware of these factors at the revocation/sentencing hearing. N.T., 3/7/2013, at 17-18. We, therefore, conclude that the crux of the claim Appellant presented in his motion for reconsideration was that his sentence was excessive because the trial court failed to consider adequately mitigating factors. Giving Appellant the benefit of the doubt, it appears that he wants to present the same challenge to the discretionary aspects of his sentence on appeal. Thus, we conclude that Appellant preserved his issue for purposes of appeal. See Commonwealth v. Dunphy, 20 A.3d 1215, 1221 (Pa.Super. 2011) (finding that Dunphy preserved his challenge to the discretionary aspects of his sentence by timely filing a post-sentence motion).

Accordingly, we must determine whether Appellant is attempting to raise a substantial question worthy of appellate review.

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. …

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005) (citations omitted).

As we already have noted, Appellant wishes to claim that his sentence is excessive because the trial court failed to consider adequately the mitigating factors that Appellant presented to the court. "[T]his 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) (citation and quotation marks omitted).

After a review of the record, we conclude that the issue Appellant wishes to raise regarding the discretionary aspects of his sentence fails to raise a substantial question. Consequently, we agree with counsel that this appeal is wholly frivolous. For these reasons, we affirm the judgment of sentence and grant counsel's petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.


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