Com. v. Hartleb, R.

J-S44022-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RICHARD ADAM HARTLEB Appellant No. 1966 WDA 2013 Appeal from the Judgment of Sentence November 14, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000856-2013, CP-25-CR-0001217-2013 BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J. MEMORANDUM BY LAZARUS, J.: FILED AUGUST 22, 2014 Richard Adam Hartleb appeals from the judgment of sentence imposed by the Court of Common Pleas of Erie County, after his conviction for several offens to withdraw pursuant to the dictates of Anders v. California, 386 U.S. 738 (1967), Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Upon review, sentence. On September 23, 2013, a jury convicted Hartleb of four counts of terroristic threats.1 four counts of simple assault,2 and one count each of ____________________________________________ 1 18 Pa.C.S. § 2706(a)(1). (Footnote Continued Next Page) J-S44022-14 possessing an instrument of crime (PIC)3 and carrying a firearm without a license.4 These convictions stemmed from an incident that occurred on February 8, 2013, in which Hartleb pointed a handgun at several individuals On November 5, 2013, Hartleb pled guilty to recklessly endangering another person5 and carrying a firearm without a license.6 These guilty pleas arose out of an incident on January 13, 2013, when Hartleb fired a handgun near the victim and toward a vehicle on the 1100 block of Wallace Street in Erie. On November 14, 2013, the trial court imposed an aggregate sentence of six to modification of sentence, which the court denied. This appeal followed. Anders faced with a purported Anders brief, this Court may not review the merits of Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super. 2005). _______________________ (Footnote Continued) 2 18 Pa.C.S. § 2701(a)(3). 3 18 Pa.C.S. § 907(a). 4 18 Pa.C.S. § 6106(a)(1). 5 18 Pa.C.S. § 2705. 6 See n.4, supra. -2- J-S44022-14 Furthermore, counsel must comply with certain mandates when seeking to withdraw pursuant to Anders, Santiago, and McClendon. These mandates are not overly burdensome and have been summarized as follows: 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 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 Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations omitted). Moreover, the Anders withdraw 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; 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. -3- J-S44022-14 Here, counsel has filed a petition averring that, after a thorough review of the record, he finds the appeal to be wholly frivolous, and states his reasons for so concluding. Santiago, supra. Counsel provided a copy of the petition and Anders brief to Hartleb, advised him of the right to retain new counsel, proceed pro se, and raise any additional points he deems wort met the requirements of Anders, McClendon, and Santiago. Once counsel has satisfied the above requirements, this Court conducts its own review of the proceedings and renders an independent judgment as to whether the appeal is, in fact, wholly frivolous. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). In his Anders brief, counsel discusses the following issues of arguable merit: (1) Did the trial court manifestly abuse its discretion when consecutively to one another, rather than concurrently? (2) Did the Commonwealth present evidence sufficient for the jury to conclude beyond a reasonable doubt that [Hartleb] carried a firearm without a license? Anders Brief, at 7. the discretionary aspect of his sentence. Judicial review of the discretionary aspects of a sentence is granted only upon a showing that there is a substantial question that the sentence was inappropriate and contrary to the fundamental norms underlying the Sentencing Code. Commonwealth v. -4- J-S44022-14 Tuladziecki when the appellant advances a colorable argument that the sentencing Sentencing Code; or (2) contrary to the fundamental norms which underlie Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en banc). [A] defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question. Commonwealth v. Dodge, 77 A.2d 1263, 1270 (Pa. Super. 2013). guilty of four counts of terroristic threats, for each of which the court imposed a se found Hartleb guilty of four counts of simple assault, for each of which the court imposed a sentence of nine to twenty- the PIC conviction, the court imposed a s incarceration. The court ordered all nine sentences to be served concurrently with a sentence of thirty to eighty- for carrying a firearm without a license. With respect to the offenses arising out of Hartleb firing gunshots on Wallace Street, the court imposed a endangerment to be served concurrently with a sentence of forty-two to -5- J-S44022-14 eighty- irearm without a license. Hartleb argues that the court abused its discretion by imposing consecutive sentences for the two firearms violations. The decision to impose consecutive or concurrent sentences is left to the sound discretion of the trial court. Commonwealth v. Prisk, 13 A.3d impose consecutive sentences does not generally establish a substantial question. Id. Whether a claim alleging that a consecutive sentence is excessive raises a substantial question depends upon a determination sentence to, what appears on its face to be, an excessive level in light of the Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010). In the course of two separate criminal incidents, Hartleb used firearms that he was precluded from carrying. As a result, the lives of his victims were threatened or endangered. We are also mindful of the fact that the and reckless endangerment concurrently with his sentences for firearms not to be carried without a license. In light of the number and nature that the sentence was not excessive on its face. Accordingly, Hartleb has not presented a substantial question that would permit us to review his discretionary aspect of sentence claim. -6- J-S44022-14 Hartleb next challenges the sufficiency of the evidence to support his conviction for carrying a firearm without a license, which provides in relevant . without a valid and lawfully issued license . . . commits a felony of the third degree. 18 Pa.C.S. § 6105.1. When reviewing the sufficiency of the evidence, we determine derived from the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to establish all of the Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013). Here, the jury heard testimony from four witnesses that Hartleb had a incident. N.T. Trial, 9/20/13, at 23, 26, 27-32, 37-41, 57-58, 60-63, and evidence to the effect that [Hartleb] did not have a lic 9/20/30, at 37. Based on the evidence adduced at trial, and the stipulation, it is clear that sufficient evidence existed to convict Hartleb of carrying a firearm without a license. withdraw. Judgment of sentence affirmed. Petition to withdraw as counsel granted. -7- J-S44022-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/22/2014 -8-