J-S08032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN MATTHEW POLEGA
Appellant No. 2244 EDA 2014
Appeal from the Judgment of Sentence June 26, 2014
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000011-2014
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 26, 2015
Appellant John Matthew Polega appeals from the judgment of sentence
entered in the Pike County Court of Common Pleas following his negotiated
guilty plea to delivery of a controlled substance and criminal conspiracy to
commit delivery of a controlled substance.1 After careful review, we affirm
and grant counsel’s petition to withdraw.
The trial court sets forth the relevant facts of this appeal as follows:
Appellant was charged with eight (8) offenses, including
[m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent
to [m]anufacture or [d]eliver; [c]riminal attempt -
[m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent
to [m]anufacture or [d]eliver; [c]onspiracy –
[m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent
to [m]anufacture or [d]eliver; [m]anufacture, [d]elivery,
____________________________________________
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(c), respectively.
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or [p]ossession [w]ith [i]ntent to [m]anufacture or
[d]eliver; [c]riminal [u]se of a [c]ommunication [f]acility;
[t]heft by [u]nlawful [t]aking – [m]ovable [p]roperty;
[i]ntentional [p]ossession of a [c]ontrolled [s]ubstance by
[p]erson [n]ot [r]egistered; and [u]se/[p]ossession of
[d]rug [p]araphernalia.1 On June 26, 2014, Appellant
entered a negotiated plea of guilty to Count I (1),
[d]elivery of a [c]ontrolled [s]ubstance, and Count III (3),
[c]riminal [c]onspiracy to [c]ommit [d]elivery of a
[c]ontrolled [s]ubstance. All remaining [c]ounts contained
in Criminal Information Number 11-2014 were dismissed.
Appellant was sentenced in accordance with the agreement
to a term of incarceration of not less than eighteen (18)
months but not more than thirty-six (36) months to be
served in a State Correctional Facility, was credited with
108 days time served between December 16, 2013 and
April 3, 2014, and was approved for RRRI minimum
sentence of thirteen and one-half (13.5) months.
1
35 [P.]S. [§] 780-113([a])(30), 18 Pa.C.S. [§§]
901([a]), [903(c)], 35 Pa.C.S. [§] 780-113([a])(30),
18 Pa.C.S. [§§] 7512[(a),] 3921([a]), 35 [P.]S. [§§]
780-113([a])(16)[, (32),] respectively.
Trial Court Opinion, filed September 19, 2014, at 1-2 (some footnotes
omitted).
On July 1, 2014, Appellant timely filed a post sentence motion for
modification of sentence, which the court denied the next day. On July 29,
2014, Appellant filed a notice of appeal. On July 30, 2014, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and he timely complied on August 19, 2014.
On October 29, 2014, Appellant’s counsel filed a petition for leave to
withdraw along with an Anders brief.
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As a preliminary matter, appellate counsel seeks to withdraw her
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago, 978 A.2d
349 (Pa.2009). 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 must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
appellant of his or her 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), appeal denied, 936 A.2d 40 (Pa.2007). Substantial
compliance with these requirements is sufficient. Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the
antecedent requirements have been met, this Court must then make an
independent evaluation of the record to determine whether the appeal is, in
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fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246
(Pa.Super.2006).
Here, counsel filed a petition for leave to withdraw as counsel. The
petition states counsel made a “conscientious examination of the record and
determined that the appeal would be wholly frivolous.” Petition to Withdraw
as Counsel, filed October 29, 2014, p. 1. The petition explains counsel
notified Appellant of the withdrawal request, supplied him with a copy of the
Anders brief, and sent Appellant a letter explaining his right to proceed pro
se or with new, privately-retained counsel to raise any additional points or
arguments that Appellant believed had merit. Id. In the Anders brief,
counsel provides a summary of the facts and procedural history of the case
with citations to the record, refers to evidence of record that might arguably
support the issue raised on appeal, provides citations to relevant case law,
and states her conclusion that the appeal is wholly frivolous and her reasons
therefor. See Anders Brief, pp. 5-10. Accordingly, counsel has
substantially complied with the requirements of Anders and Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issues raised
in the Anders brief:
WHETHER THE TRIAL COURT ERRED IN DENYING
[APPELLANT’S] POST-SENTENCE MOTION ALLEGING THAT
[APPELLANT] RECEIVED A SENTENCE NOT APPROPRIATE
UNDER THE APPLICABLE GUIDELINES, THAT HIS
SENTENCE SHOULD HAVE TAKEN INTO CONSIDERATION
MITIGATING FACTORS AND [APPELLANT] WAS UNDULY
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PREJUDICED BY UNVERIFIED INFORMATION RECEIVED BY
HIS PROBATION OFFICER AND/OR CONTAINED IN THE
PRE-SENTENCE REPORT[?]
WHETHER THE TRIAL COURT IMPROPERLY DENIED
[APPELLANT’S] MOTION TO MODIFY SENTENCE WITHOUT
HOLDING A HEARING THEREON[?]
Anders Brief at 4.2
In his first issue, Appellant challenges the discretionary aspects of his
sentence. Appellant claims his aggregate sentence was too harsh, the trial
court failed to consider mitigating factors, and the court considered
unverified information about his involvement in current drug sales. In the
Anders brief, counsel states she found nothing that arguably supports this
challenge. We agree.
When reviewing a challenge to the discretionary aspects of sentencing,
we determine whether the trial court has abused its discretion.
Commonwealth v. Seagraves, ___ A.3d ___, 2014 PA Super 252, *3
(Nov. 6, 2014). “Challenges to the discretionary aspects of sentencing do
not entitle a petitioner to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
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2
In the Anders Brief, the first question listed is: “Whether there are any
non-frivolous issues preserved on appeal.” We will address this issue as we
discuss Appellant’s other claims.
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An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.
Id.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
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.
Id. (internal citations omitted). A court’s exercise of discretion in imposing
a sentence concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d 581, 587
(Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011). In fact, the
imposition of consecutive rather than concurrent sentences will only present
a substantial question in “the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d
365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).
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Presently, Appellant filed a timely notice of appeal and preserved his
issues in a post sentence motion. Appellant’s brief, however, does not
include a concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f). Nevertheless, in light of Counsel’s
petition to withdraw, we will proceed to address whether Appellant raises a
substantial question. See Commonwealth v. Lilley, 978 A.2d 995, 998
(Pa.Super.2009) (observing that Anders requires review of issues otherwise
waived on appeal).
After Appellant pled guilty pursuant to a negotiated plea agreement,
the trial court sentenced Appellant to 18-36 months’ incarceration.3 The
plea agreement provided that Appelant’s sentences would be within the
standard range of the guidelines, and that the trial court would have
discretion to run the sentences consecutively or concurrently. Thus,
Appellant’s sentence is not “inconsistent with a specific provision of the
sentencing code” or “contrary to the fundamental norms which underlie the
sentencing process.” See Prisk, supra. Further, the imposition of
consecutive rather than concurrent sentences is not unduly harsh,
considering the nature of the crimes and the length of imprisonment. See
Lamonda, supra.
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3
The court imposed consecutive sentences of 9-18 months’ incarceration for
delivery of a controlled substance and 9-18 months’ incarceration for
criminal conspiracy to commit delivery of a controlled substance, namely
heroin, for an aggregate sentence of 18-36 months’ incarceration.
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Regarding Appellant’s claim that the court failed to consider mitigating
factors, “this 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) (internal citation omitted). However, “prior decisions from
this Court involving whether a substantial question has been raised by
claims that the sentencing court ‘failed to consider’ or ‘failed to adequately
consider’ sentencing factors has been less than a model of clarity and
consistency.” Seagraves, supra, at *3 (internal citations omitted).
“Further, reliance on impermissible sentencing factors can raise a substantial
question.” Commonwealth v. Dodge, 77 A.3d 1263, 1273
(Pa.Super.2013), reargument denied (Nov. 21, 2013), appeal denied, 91
A.3d 161 (Pa. 2014).
Thus, Appellant has presented a substantial question, and we shall
address the merits of his claim.
When the trial court has the benefit of a pre-sentence report, “we
presume that the court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with any
mitigating factors.” Seagraves, supra, at *3. Regarding this issue, the
trial court reasoned:
While [Appellant] claims that this [c]out failed to consider
mitigating factors of record in assessing the sentence, the
[c]ourt notes that the [c]ourt took into consideration all
matters contained in the [pre-sentence report (]PSI[)] and
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the information presented in [c]ourt at the sentencing
proceeding. That information was evaluated fairly and
completely in contemplation of the sentence imposed. In
review of the PSI, there is no reference to [Appellant] still
being involved in drug sales or drug use. In fact, the
report indicates [Appellant] tested negative for drugs at
the PSI interview. Further, [Appellant] claims he was
prejudiced by unverified information received by the
Probation Officer or contained in the PSI report. However,
Appellant fails to indicate [the] nature of that information
other than a claim that the Probation Officer heard that the
Appellant was still involved in drug sales. As previously
indicated, such information was not included in the PSI
report.
Trial Court Opinion, at 5.
After considering mitigating factors and abstaining from relying upon
impermissible information, the trial court sentenced Appellant well within the
sentencing guidelines. Thus, the trial court did not abuse its discretion in
imposing Appellant’s sentence.
In his second issue, Appellant argues the court should have conducted
a hearing before denying his post sentence motion. In the Anders brief,
counsel concludes that this issue is also frivolous because “no case law
indicates that a trial court must hold a hearing regarding a post-sentence
motion.” We agree.
The Rules of Criminal Procedure provide, in relevant part:
Rule 720. Post-Sentence Procedures; Appeal
* * *
(B) Optional Post-Sentence Motion.
* * *
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(2) Trial Court Action.
* * *
(b) Hearing; Argument. The judge shall also determine
whether a hearing or argument on the motion is required,
and if so, shall schedule a date or dates certain for one or
both.
Pa.R.Crim.P. 720(B)(2)(b).
The Comment to Rule 720 explains, in pertinent part:
Paragraph (B)(1)(b) permits the trial judge to entertain a
supplemental post-sentence motion at his or her
discretion, as long as the decision on the supplemental
issue(s) is made within the time limits[.]
* * *
There is no requirement that oral argument be heard on
every post-sentence motion.
Pa.R.Crim.R. 720, Comment.
In this case, the judge determined that a hearing on Appellant’s
motion was not required. We find no abuse of discretion in this
determination. Thus, Appellant’s claim is without merit.
We agree with counsel that Appellant’s claim is wholly frivolous.
Moreover, our independent review of the record has revealed no other
preserved issues of arguable merit. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2015
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