Com. v. Baker, T.

J-S44023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

TROY D. BAKER

Appellant No. 2034 WDA 2014

Appeal from the Judgment of Sentence entered October 27, 2014
In the Court of Common Pleas of Indiana County
Criminal Division at No: CP-32-CR-0001356-2012

BEFORE: LAZARUS, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2015

Appellant Troy D. Baker appeals from the October 27, 2014 judgment

of sentence entered by the Court of Common Pleas of Indiana County (“trial

court”), following a jury trial that resulted in Appellant being found guilty of

conspiracy to deliver a controlled substance, possession of a controlled

substance (“simple possession”), delivery of a controlled substance and

possession with intent to deliver a controlled substance (“PWID”).1

Appellant’s counsel has filed a petition to withdraw, alleging that this appeal

is wholly frivolous, and has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

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18 Pa.C.S.A. § 903(c) and 35 P.S. §§ 780-113(a)(16), (30).
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2009). For the reasons set forth below, we affirm the judgment of sentence

and grant the petition to withdraw.

On August 20, 2012, Appellant was charged with the foregoing crimes

because he sold 1.2 grams of heroin to a confidential informant. A jury

found Appellant guilty of conspiracy to deliver a controlled substance, simple

possession, delivery of a controlled substance and PWID. Appellant was

sentenced to 3 to 15 years’ imprisonment. Ultimately, Appellant appealed to

this Court and a prior panel of this Court affirmed the convictions. The

panel, however, vacated the sentence and remanded to the trial court

because the trial court failed to merge simple possession, delivery of a

controlled substance and PWID. See Commonwealth v. Baker, No. 1850

WDA 2013, unpublished memorandum at 11 (Pa. Super. filed Aug. 5, 2014).

On remand, the trial court resentenced Appellant to an aggregate of 2½ to

15 years’ imprisonment. Appellant filed a post-sentence motion, challenging

the discretionary aspects of sentencing. The trial court denied the motion on

November 6, 2014. Appellant timely appealed to this Court.

Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal, raising the following assertions of error:

[1.] [Appellant] contends that the trial court gave a co-
defendant a disparate sentence which consisted of a sentence of
probation while [Appellant] received a sentence of not less than
thirty months incarceration nor more than fifteen years
incarceration.
[2.] [Appellant] contends that the trial court abused its
discretion when the court sentenced [Appellant] to a term of
incarceration of not less than thirty months incarceration nor
more than fifteen years incarceration, an excessive sentence,
because [Appellant] does not have a violent criminal record, he

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has demonstrated an ability to be rehabilitated, and the amount
of drugs that were delivered were small in quantity.

[3.] [Appellant] contends that an ungraded felony conviction can
be tantamount to a felony of the third degree, causing the trial
court’s sentence to be excessive.
[4.] [Appellant] contends that the sentencing scheme under Title
35 for maximum sentences is unreasonable; and therefore, an
unconstitutional sentence, because the legislative intent of the
statute was never to provide a maximum sentence of
incarceration of fifteen years for the delivery of small quantities
of heroin.

Appellant’s Rule 1925(b) Statement. In response, the trial court issued a

Pa.R.A.P. 1925(a) opinion, concluding that no relief was due on Appellant’s

assertions of error. On April 30, 2015, Appellant’s counsel filed a motion to

withdraw as counsel and filed an Anders brief, wherein counsel repeats the

four assertions of error.

When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 1) petition the

court for leave to withdraw stating that, after making a conscientious

examination of the record, counsel has determined that the appeal would be

frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

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Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention. Accordingly, we conclude that counsel has satisfied

the procedural requirements of Anders.

We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court

held:

[I]n 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. Here, our review of counsel’s brief indicates

that he has complied with the briefing requirements of Santiago. We,

therefore, conclude that counsel has satisfied the minimum requirements of

Anders/Santiago.

Once counsel has met his obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

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appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of Appellant’s appeal.

We address Appellant’s first two assertions of error together. It is

well-settled that “[t]he right to appeal a discretionary aspect of sentence is

not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.

Super. 2011). Rather, where an appellant challenges the discretionary

aspects of a sentence, an appellant’s appeal should be considered as a

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d

155, 162 (Pa. Super. 2007). As we stated 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 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

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Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his brief.2 We, therefore, must determine only if

Appellant’s sentencing issue raises a substantial question.

We have found that a substantial question exists “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. Phillips, 946 A.2d 103, 112 (Pa. Super.

2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). This

Court does not accept bald assertions of sentencing errors. See

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).

When we examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists, “[o]ur inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying

the appeal, which are necessary only to decide the appeal on the merits.”

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
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2
Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

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A Rule 2119(f) statement is inadequate when it “contains incantations of

statutory provisions and pronouncements of conclusions of law[.]”

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation

omitted).

Here, Appellant’s Rule 2119(f) statement asserts that Appellant’s

sentence of 2½ to 15 years’ imprisonment is disparate “because a co-

defendant received a sentence of probation,” and therefore, his sentence is

excessive. Anders/Santiago Brief at 12. Moreover, Appellant asserts that

the trial court abused its discretion in failing to consider Appellant’s

“propensity to be rehabilitated.” Id.

Based on Appellant’s Rule 2119(f) statement, we conclude a

substantial question exists with respect to Appellant’s claim that he received

a harsher sentence than his co-defendant. See Commonwealth v.

Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010) (concluding that

disparate sentence claim raised a substantial question) (citation omitted),

appeal denied, 14 A.3d 825 (Pa. 2011); see also Commonwealth v.

Krysiak, 535 A.2d 165, 167 (Pa. Super. 1987) (“[D]isparate sentences

between two or more co-defendants constitute a substantial question,

necessitating our exercise of jurisdiction to review.”). With respect to

Appellant’s claim that the trial court abused its sentencing discretion in

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failing to consider his rehabilitative needs, no substantial question exists.3

See Commonwealth v. Caldwell, 2015 PA Super 128, __ A.3d __, 2015

WL 3444594 at *3 (filed May 29, 2015) (en banc) (citing a plethora of cases

supporting the proposition that a claim that the trial court failed to consider

an appellant’s rehabilitative needs fails to raise a substantial question)

(citation omitted). Accordingly, we grant Appellant’s petition for allowance

of appeal only in connection with the disparate sentencing claim.

As noted earlier, we review any challenge to the trial court’s

discretionary aspects of sentencing under an abuse of discretion standard.

See Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013),

appeal denied, 91 A.3d 161 (Pa. 2014). It is established that co-

defendants are not required to receive identical sentences. Mastromarino,

A.3d at 589. Thus, a trial court must only indicate the reasons for

differences in sentences between co-defendants. Id. (citation omitted).

“This is not to say, however, that the court must specifically refer to the

sentence of a co-defendant. Rather, it requires that when there is a

disparity between co-defendants’ sentences, a [trial] court must give

reasons particular to each defendant explaining why they received their

individual sentences.” Id. (citation omitted).

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3
Nonetheless, contrary to Appellant’s claim, as our review of the record
indicates infra, the trial court considered Appellant’s rehabilitative needs.

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Here, our review of the sentencing transcript reveals that the trial

court articulated ample reasons to justify the disparity between Appellant’s

and his co-defendant’s sentence. The trial court remarked:

Again, a review of your record shows that at the age of 33 you
have never been gainfully employed. You have 16 prior
convictions in Pennsylvania and Ohio, the majority of which are
drug and/or drug related offenses. And [the court does]
consider you to be a career criminal and a danger to society.
You were on parole at the time that you committed this offense
and [the court] therefore, consider[s] you to be a poor candidate
for rehabilitation.

N.T. Resentencing, 10/27/14, at 8. Accordingly, we discern no basis upon

which to conclude that the trial court abused its discretion in imposing upon

Appellant a sentence of 2½ to 15 year term of imprisonment.

Turning now to Appellant’s third and fourth assertion of error, we find

they are waived, because Appellant raised them for the first time in his Rule

1925(b) statement. See Commonwealth. v. Tejada, 107 A.3d 788, 790

(Pa. Super. 2015) (explaining that an issue may not be raised for the first

time in a Rule 1925(b) statement); see Pa.R.A.P. 302(a) (“Issues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.”). Even if they were properly preserved for appeal, we still would

consider the arguments waived because Appellant fails to develop them with

any legal authority. See Pa.R.A.P. 2119(a); see also Commonwealth v.

B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (“When an appellant fails

to develop his issue in an argument and fails to cite any legal authority, the

issue is waived.”).

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Finally, we have conducted an independent review of the record and

addressed Appellant’s arguments pertaining to the discretionary aspects of

sentencing. Based on our conclusions above, we agree with counsel that the

issues Appellant seeks to litigate in this appeal are wholly frivolous. Also, we

do not discern any non-frivolous issues that Appellant could have raised.

We, therefore, grant counsel’s petition to withdraw and affirm the judgment

of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015

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