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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH C. CORBETT, III
Appellant No. 1155 MDA 2014
Appeal from the Judgment of Sentence May 20, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000892-2010
CP-40-CR-0000893-2010
CP-40-CR-0002655-2010
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MARCH 09, 2015
Appellant Joseph C. Corbett, III (“Appellant”) appeals from the May
20, 2014 judgment of sentence in the Luzerne County Court of Common
Pleas following his guilty plea convictions for firearms not to be carried
without a license1 and possession of a controlled substance with intent to
deliver (“PWID”)2 on Docket No. CP-40-CR-0002655-2010, one count of
resisting arrest3 on Docket No. CP-40-CR-0000892-2010, and one count of
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1
18 Pa.C.S. § 6106.
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 5104.
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resisting arrest on Docket No. CP-40-CR-0000893-2010. Appellant’s counsel
has filed an Anders4 brief, together with a petition to withdraw as counsel.
We affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Appellant’s convictions arise from three separate incidents: (1) on
March 5, 2010, Appellant resisted police after receiving notification that he
was under arrest on a South Carolina warrant; (2) on March 9, 2010,
Appellant fled police on foot during an automobile stop; and (3) on July 23,
2010, upon observing a firearm protruding from his pants, police detained
Appellant and discovered an unlicensed firearm and marijuana. See N.T.
5/20/2014, pp. 8-9.
Appellant pleaded guilty to the aforementioned charges stemming
from these incidents on May 20, 2014. The trial court sentenced Appellant
to 15 to 36 months’ incarceration on the firearms not to be carried without a
license conviction, 2 years’ consecutive probation on the PWID conviction,
and one year of probation for each of the resisting arrest convictions to be
served concurrently to the PWID probation. On May 28, 2014, Appellant
filed a post-trial motion to modify sentence that the trial court denied on
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4
Anders v. California, 386 U.S. 738 (1967).
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June 10, 2014. Appellant filed a notice of appeal on July 7, 2014. Appellant
complied with Pa.R.A.P. 1925,5 as did the trial court.6
As previously noted, Appellant’s counsel has filed an application
seeking to withdraw from representation pursuant to Anders v. California
and its Pennsylvania counterpart, Commonwealth v. Santiago.7 Before
addressing the merits of Appellant’s underlying issue presented, we must
first pass on counsel’s petition to withdraw. 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
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5
Although styled as a Pa.R.A.P. 1925(b) statement of matters complained of
on appeal, Appellant’s filing indicated that counsel intended to file an
Anders brief in this matter. It was therefore technically a Pa.R.A.P.
1925(c)(4) statement.
6
In light of Appellant’s Pa.R.A.P. 1925(b) filing, the trial court’s 1925(a)
filing determined Appellant had failed to preserve any issues for review.
See Trial Court’s July 22, 2014 filing pursuant to Pa.R.A.P. 1925(a). The
trial court further explained that the sentencing hearing transcript contains
the court’s reasons for the sentence imposed. Id.
7
978 A.2d 349 (Pa.2009).
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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 the appellant with a
copy of the Anders brief, 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).
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 fact, wholly frivolous.” Commonwealth v. Palm,
903 A.2d 1244, 1246 (Pa.Super.2006).
Instantly, counsel contemporaneously filed a petition to withdraw as
counsel with the Anders brief. The petition states counsel’s determination
that no non-frivolous issues exist to be raised on appeal. See Petition to
Withdraw As Counsel, ¶ 3. The petition further explains that counsel notified
Appellant of the withdrawal request 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. 8 See id.
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8
The letter further makes clear that counsel supplied Appellant with a copy
of the Anders brief. See Letter to Appellant, December 3, 2014.
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at ¶ 4; see also Letter to Appellant, December 3, 2014. 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 his conclusion that the appeal is wholly frivolous and his
reasons therefor. See Anders Brief, pp. 4-8. 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 issue of
arguable merit raised in the Anders brief:
1. Whether the Trial Court abused its discretion in sentencing
Appellant[?]
Anders Brief, p. 7.
This claim raises a challenge to the discretionary aspects of Appellant’s
sentence. “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:
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)
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whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Allen, 24 A.3d at 1064. “The determination of whether a particular issue
raises a substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005).
“Generally, however, in order to establish a substantial question, the
appellant must show actions by the sentencing court inconsistent with the
Sentencing Code or contrary to the fundamental norms underlying the
sentencing process.” Commonwealth v. Titus, 816 A.2d 251, 255
(Pa.Super.2003).
Here, Appellant filed a timely notice of appeal and preserved his issues
in a motion for reconsideration of sentence. Further, Appellant’s brief
includes a concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f).9 See Appellant’s Brief, p. 3.
Accordingly, we now determine whether Appellant has raised a substantial
question for review and, if so, proceed to a discussion of the merits of the
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9
Appellant’s Rule 2119(f) statement states:
The trial court abused its discretion in failing to sentence the
Appellant to time served. The court failed to consider that
Appellant had already served substantial time, and that he
intended to relocate to North Carolina, and that said sentence
will cause him expense and great inconvenience. Appellant
alleges that these issues constitute a substantial question.
Appellant’s Brief, p. 3.
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claim. See Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d
17 (Pa.1987).
“A substantial question will be found where the defendant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the [sentencing] code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v.
Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see
also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a
substantial question on a case-by-case basis.” Id. A bald or generic
assertion that a sentence is excessive does not, by itself, raise a substantial
question justifying this Court’s review of the merits of the underlying claim.
Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 701
(Pa.Super.2013). Additionally, “[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); see also Commonwealth v. Ratushny,
17 A.3d 1269, 1273 (Pa.Super.2011) (“argument that the sentencing court
failed to adequately consider mitigating factors in favor of a lesser sentence
does not present a substantial question appropriate for our review.”);
Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa.Super.2006)
(“[A]ppellant’s contention that the trial court did not adequately consider a
mitigating circumstance when imposing sentence does not raise a
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substantial question sufficient to justify appellate review of the merits of
such claim.”).
In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial
court abused its discretion in failing to sentence him to time served because
he (1) had already served substantial time, and (2) probationary
requirements would hinder his intended relocation to North Carolina. See
Appellant’s Brief, p. 3. Appellant’s claim effectively requests this Court to
substitute our judgment for that of the sentencing court and to determine
whether the alleged mitigating factors warrant an alteration of sentence.
Therefore, this claim does not present a substantial question for this Court’s
review.
Even had Appellant stated a substantial question for review, we would
affirm on the merits. We review discretionary aspects of sentence claims
under the following standard of review:
If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion
involves a sentence which was manifestly unreasonable, or
which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Our review of the sentencing transcript reveals that the lower court did
not abuse its discretion. Instead, the trial court imposed a sentence that
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was consistent with the protection of the public, took into account the
gravity of the offense as it related to the impact on the life of the victim and
on the community, and considered the Appellant’s rehabilitative needs, as
required by 42 Pa.C.S. § 9721(b).
In imposing sentence, the trial court considered the sentencing
guidelines, the pre-sentence investigation report,10 the arguments of
counsel, Appellant’s testimony, the testimony of Appellant’s mother,
Appellant’s age, his criminal history, his rehabilitative needs, and his
acceptance of responsibility. N.T. 5/20/2014, pp. 10-37. The trial court
then sentenced Appellant to a standard range sentence11 with a reporting
date 20 days in the future to allow him to aid his grandmother in a real
estate transaction in North Carolina on June 2, 2014. See N.T. 5/20/2014,
pp. 22-25, 32-34.12 We find no abuse of discretion in the trial court’s
sentencing.
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10
We note that where a sentencing court had the benefit of a presentence
investigation report, we can assume the sentencing court was aware of
relevant information contained therein and weighed that information along
with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).
11
See Moury, 992 A.2d at 171 (“[W]here a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.”).
12
We further note the trial court stated it had no objection to transferring
Appellant’s probationary supervision to another jurisdiction in the event
Appellant relocates. See N.T. 5/20/2014, p. 24.
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Given the foregoing, Appellant has not raised a substantial question
regarding the appropriateness of his sentence. Further, even if he had
raised a substantial question for review, his claim would fail on the merits.
Accordingly, 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. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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