J-S77041-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JONATHAN DANIEL INGRAM, :
:
Appellant : No. 2000 EDA 2014
Appeal from the Judgment of Sentence Entered June 10, 2014,
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001698-2012
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 06, 2015
Jonathan Daniel Ingram (Appellant) appeals from the judgment of
sentence entered after a jury found him guilty of two counts each of
aggravated assault, burglary, and possessing an instrument of crime. In
addition, Appellant’s counsel seeks to withdraw from representation
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
affirm the judgment of sentence and grant counsel’s application to withdraw.
The trial court summarized the facts of this case as follows.
The charges arose from a December 24, 2011 home
invasion that occurred at about 2:00 a.m. in Upper Darby,
Delaware County. [Appellant] entered a home occupied by
Jennifer Hoban, John Miller, and Ms. Hoban’s children. Ms.
Hoban awoke to noise and when she went from her bedroom
into the upstairs hall she saw [Appellant], a man she did not
know, holding two knives. [Appellant] attacked Ms. Hoban and
* Retired Senior Judge assigned to the Superior Court.
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stabbed her several times before she chased him from the
house. She suffered, inter alia, serious wounds to her abdomen
and emergency surgery was undertaken after she was
transported to the University of Pennsylvania Hospital.
Trial Court Opinion, 8/4/2014, at 1-2.
Appellant was charged with numerous crimes related to this incident,
and on February 7, 2013, a jury found Appellant guilty of the
aforementioned crimes. Appellant was subsequently sentenced on March
26, 2013 to an aggregate term of 14 to 28 years’ incarceration to be
followed by 14 years of probation.1 Appellant timely appealed, challenging
the sufficiency of the evidence to support his convictions.
While that appeal was pending, the trial court sua sponte vacated
Appellant’s original sentence without holding a hearing or providing notice to
Appellant. On September 6, 2013, Appellant was re-sentenced to an
aggregate term of 15 ¼ to 30 ½ years’ incarceration to be followed by 14
years of probation.2 Appellant timely appealed challenging the legality of his
new sentence. The appeals were consolidated, and on April 1, 2014, a panel
of this Court affirmed Appellant’s convictions with respect to the sufficiency
of the evidence, but vacated his sentence because the trial “court erred in
1
Notably, that sentence included a term of 10 to 20 years’ incarceration,
followed by 8 years’ probation, for one of the counts of aggravated assault.
2
The statutory maximum sentence for aggravated assault is 20 years’
incarceration. Thus, Appellant’s original sentence for aggravated assault
exceeded the statutory maximum, and was therefore an illegal sentence.
The amended sentence included 10 to 20 years’ incarceration for aggravated
assault, and no probation tail for that conviction.
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modifying the sentence without holding a hearing or providing notice to
[Appellant] or his attorney.” Commonwealth v. Ingram, 100 A.3d 518
(Pa. Super. 2014) (unpublished memorandum at 15), consolidated with
Commonwealth v. Ingram 102 A.3d 518 (Pa. Super. 2014) (unpublished
memorandum). Thus, this Court remanded the case for re-sentencing.
On June 10, 2014, the trial court sentenced Appellant to an aggregate
term of 15¼ to 30½ years’ incarceration to be followed by 14 years of
probation. That sentence included 10 to 20 years’ incarceration for one
count of aggravated assault, and a consecutive 4 to 8 years’ incarceration
for the other count of aggravated assault. The sentence also included a
consecutive term of 15 to 30 months’ incarceration for one of the burglary
convictions, as well as a 14-year probationary tail.
Appellant timely filed a notice of appeal. On July 31, 2014, counsel
filed a statement, pursuant to Pa.R.A.P. 1925(c)(4), of his intent to withdraw
his representation of Appellant. The trial court then filed a Pa.R.A.P.
1925(a) opinion.
As a preliminary matter, we address counsel’s application to withdraw
before reaching the merits of the issues raised in the brief. Commonwealth
v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth
v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a
purported Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw.”).
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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 expounded further upon the
requirements of Anders:
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.
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Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has satisfied the above
requirements.3 “We, therefore, turn to the issue presented in counsel’s
Anders brief to make an independent judgment as to whether the appeal is,
in fact, wholly frivolous.” Commonwealth v. Martuscelli, 54 A.3d 940,
947 (Pa. Super. 2012).
In his brief, Appellant’s counsel states one issue that might arguably
support an appeal: “Whether the sentence imposed upon [Appellant] was
harsh and excessive under the circumstances?” Anders Brief at 3.
Appellant’s claim challenges the discretionary aspects of his sentence.
It is well-established that
[s]entencing 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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005)
(quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)).
Where an appellant challenges the discretionary aspects of a sentence
there is no automatic right to appeal, and an appellant’s appeal should be
considered to be a petition for allowance of appeal. Commonwealth v.
3
Appellant has not responded to counsel’s application to withdraw.
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W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007). As we observed in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e 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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)).
“The determination of whether a substantial question exists must be
determined on a case-by-case basis.” Commonwealth v. Hartman, 908
A.2d 316, 320 (Pa. Super. 2006) (citation omitted). This Court has explained
that: “[a] substantial question exists where an 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.
(quoting Commonwealth v. Koren, 646 A.2d 1205, 1208 (Pa. Super.
1994)).
Instantly, Appellant has met the first prong of this test by timely filing
a notice of appeal. However, Appellant has failed to preserve properly his
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discretionary aspects of sentencing issue at sentencing or in a timely-filed
motion to reconsider sentence pursuant to Pa.R.Crim.P. 720. Moreover, the
Anders brief does not contain a Rule 2119(f) statement, and the
Commonwealth has objected to its absence. Thus, Appellant’s claim is
waived. See Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa.
Super. 2004) (“Where an appellant fails to comply with Pa.R.A.P. 2119(f)
and the Commonwealth objects, the issue is waived for purposes of
review.”).
Even if Appellant had preserved the issue,4 he would still not be
entitled to relief. In support of his claim, Appellant cites several so-called
mitigating factors present in this case: 1) that the victim has made a
complete recovery; 2) that Appellant was 24 years old at the time of his
arrest and had not committed any crimes as an adult; and 3) that Appellant
had a difficult childhood and 4) that Appellant is the father of three children
and was concerned about his responsibilities to them. Anders Brief at 7-8.
However, an argument that the trial court did not consider adequately
mitigating sentencing factors does not raise a substantial question. See
Commonwealth v. Marts, 889 A.2d 608, 615 (Pa. Super. 2005)
4
See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(citing Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super.
2001) (explaining that despite waiver, Anders requires examination of the
merits of the issue appellant seeks to raise)).
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(explaining that a claim that the trial court did not consider adequately
mitigating factors does not raise a substantial question).
For the above reasons, we agree with counsel that this appeal is
wholly frivolous. Thus, we affirm the judgment of sentence and grant
counsel’s application to withdraw.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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