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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALAN L. BARKMAN
Appellant No. 111 WDA 2015
Appeal from the Judgment of Sentence December 3, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001016-2014
CP-25-CR-0001850-2014
BEFORE: SHOGAN, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 15, 2015
Appellant, Alan L. Barkman, appeals from the judgment of sentence
entered on December 3, 2014, following his guilty plea to driving under the
influence of alcohol (DUI) – high rate of alcohol and DUI – highest rate of
alcohol.1 Because of the new convictions, the trial court also revoked a
probationary sentence that Appellant was serving on an underlying DUI
offense. The trial court resentenced Appellant on that crime as well. In this
direct appeal, Appellant’s court-appointed counsel filed both a petition to
withdraw as counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel complied with
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1
75 Pa.C.S.A. §§ 3802(b) and 3802(c), respectively.
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the procedural requirements necessary for withdrawal. Moreover, after
independently reviewing the record, we conclude that the instant appeal is
wholly frivolous. We therefore grant counsel’s petition to withdraw and
affirm Appellant’s judgment of sentence.
We summarize the factual and procedural history of this case as
follows. On October 7, 2014, Appellant pled guilty to the two
aforementioned DUI charges. Those charges were the result of two separate
DUI arrests occurring within two months of each other. At the time of the
plea, Appellant was on probation for a prior DUI. N.T., 12/3/2014, at 9. On
December 3, 2014, the trial court found Appellant in violation of his
probation and resentenced him on his prior DUI and also imposed a sentence
for the new convictions. In sum, the trial court sentenced Appellant to an
aggregate term of 56 to 180 months of incarceration with credit for time
served. The trial court also found Appellant was eligible for the Recidivism
Risk Reduction Incentive (RRRI) program and reduced his aggregate
minimum sentence from 56 to 42 months of incarceration. This timely
appeal followed.2
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2
Appellant filed a motion to reconsider his sentence on December 10, 2014.
The trial court denied relief by an order filed on December 15, 2014. On
January 14, 2015, Appellant filed a notice of appeal. On January 26, 2015,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on January 29, 2015. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on February 12, 2015, stating Appellant’s sentence “was
appropriate in light of all the factors [the trial court] considered (pre-
(Footnote Continued Next Page)
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On appeal, Appellant’s counsel included one issue in his Anders brief:
Whether [] [Appellant’s] sentence is manifestly excessive,
clearly unreasonable and inconsistent with the objectives of
the Sentencing Code?
Anders Brief at 3.
Before reviewing the merits of this appeal, however, this Court must
first determine whether counsel fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v.
Washington, 63 A.3d 797, 800 (Pa. Super. 2013). To withdraw under
Anders, court-appointed counsel must satisfy certain technical
requirements. First, counsel must “petition the court for leave to withdraw
and state that after making a conscientious examination of the record, he
has determined that the appeal is frivolous.” Commonwealth v.
Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an
Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and
facts, with citations to the record;
(2) refer[s] to anything in the record that counsel believes
arguably supports the appeal;
_______________________
(Footnote Continued)
sentence report, revocation summary, etc.) and the facts and circumstances
of the crimes committed, as well as [Appellant’s] performance while under
supervision.” Trial Court Opinion, 2/12/2015, at 1.
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(3) set[s] forth counsel’s conclusion that the appeal is
frivolous; and
(4) state[s] 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.
Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and “advise[] him of his right to retain new counsel, proceed pro se or raise
any additional points that he deems worthy of the court’s attention, and
attach[] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation
omitted).
If counsel meets all of the above 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
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5 (citation
omitted). It is only when both the procedural and substantive requirements
are satisfied that counsel will be permitted to withdraw. In the case at bar,
counsel has met all of the above procedural obligations.3 We now turn to
the issue raised in the Anders brief.
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3
Appellant has not filed a response to counsel’s Anders brief.
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The Anders brief contends that the trial court abused its discretion in
imposing an excessive sentence. This claim does not challenge the
revocation of Appellant’s probation or the fact that the trial court imposed a
sentence of total confinement upon Appellant. Rather, Appellant’s claim
challenges the discretionary aspects of his sentence. Commonwealth v.
Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), appeal denied, 25 A.3d 328
(Pa. 2011).
“Sentencing 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.” Commonwealth v. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, Pa.R.Crim.P. [708]; (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).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when
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a court revokes probation and imposes a new sentence, a criminal defendant
needs to preserve challenges to the discretionary aspects of that sentence
either by objecting during the revocation sentencing or by filing a post-
sentence motion”). As previously noted, Appellant filed a timely notice of
appeal and the issue was properly preserved in a post-sentence motion.
Counsel’s Anders brief also has a statement pursuant to Pa.R.A.P. 2119(f).
Thus, we turn to whether the appeal presents a substantial question.
As we have explained:
The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case
basis. Generally, however, in order to establish that there
is 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. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted).
Appellant's position is that the imposition of multiple consecutive
sentences is disproportionate to his crimes. “This Court has [] determined
that such an assertion, in combination with allegations that a sentencing
court did not consider the nature of the offenses or provide adequate
reasons for its sentence, presents a plausible argument that the length of
the sentence violates fundamental sentencing norms.” Commonwealth v.
Dodge, 77 A.3d 1263, 1271-1272 (Pa. Super. 2013).
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In sentencing Appellant, the trial court was required to “consider the
general principles and standards of the Sentencing Code.” Commonwealth
v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses
these general principles in the following manner:
the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs
of the defendant.
42 Pa.C.S.A. § 9721(b).
We also note that when the trial court has the benefit of a presentence
investigation (PSI) report, “we presume the court was aware of and weighed
information concerning Appellant's character when making its sentencing
decision.” Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super.
2010).
Here, before imposing Appellant’s sentence, the trial court:
[C]onsidered the Pennsylvania Sentencing Code, the [PSI],
and the Pennsylvania Guidelines on Sentencing as they
appl[ied] to the new charges. The [c]ourt [] also
considered the revocation summary, the statements of
defense counsel, [Appellant], and the attorney for the
Commonwealth. The [trial c]ourt [] considered
[Appellant’s] age, background, character, and rehabilitative
needs, the nature, circumstances, and seriousness of the
offenses, the protection of the community, and [Appellant’s]
performance while under supervision.
N.T., 12/3/2014, at 13.
Because the trial court had the benefit of a PSI report, we presume it
considered Appellant’s character in rendering its decision. Moury, 992 A.2d
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at 175. Moreover, the trial court specifically examined the factors under
Section 9721. The trial court determined that Appellant presented “a danger
to other people” because in the two recent DUI offenses, Appellant’s blood
alcohol level was “in the one case, [] over three times the legal limit, and
[in] the other case just slightly less [than] twice the legal limit.” N.T.,
12/3/2014, at 13. In the first instance, Appellant was “found slumped over
the wheel of a vehicle with [his] foot pressed on the accelerator in the
McDonald’s parking lot in Edinboro.” Id. at 14. In the other incident,
Appellant was “driving on busy Route 19 crossing over the double line and
fog lines on several occasions [with] a blood alcohol level of .284 [%].” Id.
The trial court noted that “on each of those occasions, [it was] indeed
fortunate [Appellant] or someone else wasn’t seriously injured.” Id. The
trial court also considered letters written on Appellant’s behalf from seven
members of the community, as well as the fact that a number of people
were present to support Appellant at sentencing. Id. at 8, 15-16.
Ultimately, the trial court determined Appellant was not amenable to
rehabilitation, because he had six previous DUIs since 1979 and was on
probation following intermediate punishment at the time of his seventh
infraction. Id. at 14-17. The trial court concluded that Appellant was jailed
multiple times and given opportunities for rehabilitation, but “[n]one of that
deters” him. Id. at 17.
Based upon the foregoing, we discern the trial court did not abuse its
discretion in imposing Appellant’s sentence. The trial court had the benefit
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of a PSI report, so we presume the trial court was aware of Appellant’s
individual circumstances. The trial court went further, however, and, on the
record, carefully considered the protection of the public, the gravity of the
offenses as they related to the impact on the community, and the
rehabilitative needs of Appellant before imposing a sentence of total
confinement. Ultimately, the trial court concluded that Appellant is a danger
to himself and the community and that prior incarceration did not deter him
for well over 30 years.
Moreover, after an independent review of the entire record, we see
nothing that might arguably support this appeal. The appeal is, therefore,
wholly frivolous. Accordingly, we affirm Appellant’s judgment of sentence
and grant counsel’s petition for leave to withdraw appearance.
Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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