J-S58045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOE DAVID BARCLAY
Appellant No. 761 MDA 2015
Appeal from the Judgment of Sentence March 5, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000550-2014
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 16, 2015
Appellant, Joe David Barclay, appeals from the judgment of sentence
entered in the Franklin County Court of Common pleas, following his open
guilty plea to possession of child pornography and criminal use of
communication facility.1 We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this appeal are as follows.
Between December 10, 2013 and March 6, 2014, Appellant used a computer
to access videos of minors performing sex acts. On November 3, 2014,
Appellant pled guilty to seven (7) counts of possession of child pornography
and one (1) count of criminal use of communication facility. The court
____________________________________________
1
18 Pa.C.S.A. §§ 6312(d), 7512(a).
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58045-15
sentenced Appellant on March 5, 2015, to concurrent terms of thirty (30) to
eighty-four (84) months’ incarceration for each count of possession of child
pornography. The court imposed a consecutive term of twelve (12) to
eighty-four (84) months’ incarceration for the criminal use of communication
facility conviction. Thus, Appellant received an aggregate sentence of forty-
two (42) to one hundred sixty-eight (168) months’ incarceration. On March
10, 2015, Appellant filed a timely post-sentence motion, which the court
denied on April 9, 2015. Appellant filed a timely notice of appeal on April
30, 2015. On that same date, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant filed a Rule 1925(b) statement on June 8, 2015.2 On July 15,
2015, counsel filed with this Court a petition to withdraw representation. On
August 6, 2015, Appellant filed a pro se response to counsel’s request to
withdraw.
As a preliminary matter, appellate counsel seeks to withdraw her
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
____________________________________________
2
Appellant’s Rule 1925(b) statement was untimely. Nevertheless, this Court
may address the merits of a criminal appeal where a defendant files an
untimely Rule 1925(b) statement, if the trial court had adequate opportunity
and chose to prepare an opinion addressing the issue(s) raised on appeal.
See Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en banc).
Here, the trial court filed a Rule 1925(a) opinion that addresses the sole
issue raised on appeal. Moreover, counsel seeks to withdraw representation,
so she had only to file a Rule 1925(c)(4) statement of intent to file an
Anders brief, which would make a trial court opinion discretionary. See
Commonwealth v. McBride, 957 A.2d 752 (Pa.Super. 2008).
-2-
J-S58045-15
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. 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) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where appellate counsel seeks to withdraw representation:
Neither Anders nor McClendon[3] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
____________________________________________
3
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
-3-
J-S58045-15
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, counsel’s petition to withdraw states that counsel reviewed
the facts, relevant law, and potential issues for appeal, and determined the
appeal is wholly frivolous. Counsel notified Appellant of counsel’s request to
withdraw. Counsel also supplied Appellant with a copy of the Anders brief
and a letter explaining Appellant’s right to retain new counsel or to proceed
pro se to raise any additional issues Appellant believes this Court should
consider. In the Anders brief, counsel provides a summary of the facts and
procedural history of this case. Counsel’s argument section refers to
relevant law that might arguably support Appellant’s discretionary aspects of
sentencing claims raised on appeal. Counsel further states the reasons for
-4-
J-S58045-15
her conclusion that the appeal is wholly frivolous. Therefore, counsel has
substantially complied with the requirements of Anders and Santiago.
We proceed to review the sentencing issue raised in the Anders brief:
WHETHER THE SENTENCING COURT ERRED AS A MATTER
OF LAW WHEN IT DENIED [APPELLANT’S] POST-SENTENCE
MOTION TO MODIFY SENTENCE?
(Anders Brief at 4).4
In his single issue, Appellant argues the court failed to articulate on
the record its reasons for the sentence imposed. Appellant asserts the court
neglected to take into account Appellant’s lengthy allocution, counsel’s
arguments, Appellant’s rehabilitative needs, and various mitigating factors.
Appellant contends the court abused its discretion when it imposed
consecutive sentences, which resulted in a maximum aggregate term that is
excessive and might effectively constitute a life sentence. Appellant
concludes this Court should vacate his judgment of sentence and remand for
resentencing. As presented, Appellant challenges the discretionary aspects
of his sentence. See Commonwealth v. Dunphy, 20 A.3d 1215
____________________________________________
4
In Appellant’s pro se response to counsel’s petition to withdraw, Appellant
reiterates the claim that his sentence is excessive. Appellant also asserts
that counsel provided inadequate representation and should not have
advised Appellant to take a plea. Appellant, however, fails to expand on this
argument or to cite any relevant law. Moreover, this Court cannot review
Appellant’s challenge to counsel’s effectiveness on direct appeal. See
Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (2013) (stating
ineffective assistance of counsel claims generally are to be deferred to
collateral review).
-5-
J-S58045-15
(Pa.Super. 2011) (stating claim that sentencing court failed to offer
adequate reasons to support sentence challenges discretionary aspects of
sentencing); Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595
(Pa.Super. 2010) (explaining challenge to imposition of consecutive
sentences implicates discretionary aspects of sentencing); Commonwealth
v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is
manifestly excessive challenges discretionary aspects of sentencing);
Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal
denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing
court failed to consider or did not adequately consider certain factors
challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
-6-
J-S58045-15
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 912-13 (quoting
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),
appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a
sentence is manifestly excessive might raise a substantial question if the
appellant’s Rule 2119(f) statement sufficiently articulates the manner in
which the sentence imposed violates a specific provision of the Sentencing
Code or the norms underlying the sentencing process. Mouzon, supra at
435, 812 A.2d at 627. Generally, “[a]n allegation that a sentencing court
failed to consider or did not adequately consider certain factors does not
raise a substantial question that the sentence was inappropriate.” Cruz-
Centeno, supra at 545. A challenge to the trial court’s exercise of
-7-
J-S58045-15
discretion in imposing sentences consecutively also generally fails to raise a
substantial question. Commonwealth v. Pass, 914 A.2d 442, 446
(Pa.Super. 2006). Nevertheless, “[a]n allegation that a judge ‘failed to offer
specific reasons for [a] sentence does raise a substantial question.’”
Dunphy, supra at 1222 (quoting Commonwealth v. Reynolds, 835 A.2d
720, 734 (Pa.Super. 2003)).
“In every case in which the court imposes a sentence for a felony or
misdemeanor…the court shall make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.” 42 Pa.C.S.A. § 9721(b). “Nevertheless, a
lengthy discourse on the trial court’s sentencing philosophy is not required.
Rather, the record as a whole must reflect the court’s reasons and its
meaningful consideration of the facts of the crime and the character of the
offender.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super.
2006). See also Commonwealth v. Brown, 741 A.2d 726 (Pa.Super.
1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001) (stating
court meets requirement that it state on record reasons for sentence
imposed if court states that it has consulted presentence investigation
(“PSI”) report).
Instantly, Appellant preserved his discretionary aspects of sentencing
claims in a timely filed post-sentence motion. Nevertheless, Appellant fails
to raise a substantial question with respect to his claims regarding the
-8-
J-S58045-15
excessiveness of his sentence, the court’s decision to run counts
consecutively, and the court’s alleged failure to consider certain mitigating
factors. See Mouzon, supra; Pass, supra; Cruz-Centeno, supra.
Moreover, the court reasoned as follows in its Rule 1925(a) opinion:
Here, this [c]ourt carefully considered all relevant
sentencing factors, pursuant to 42 Pa.C.S.[A.] § 9721(b).
As a result, this [c]ourt imposed a standard range
sentence. First, this [c]ourt wholly disagrees with
[Appellant’s] claim that he has not been demonstrated to
be a danger to the public. [Appellant] was convicted of
seven counts of possessing child pornography. The
Pennsylvania Supreme Court has clearly stated that even
the mere possession and downloading of child pornography
is harmful to children as “each image of child pornography
creates a permanent record of a child’s abuse, which
results in continuing exploitation of a child when the image
is subsequently viewed.” Com[monwealth] v. Baker, 24
A.3d 1006, 1036 [Pa.Super. 2011]. Indeed, “[t]he
purpose of Section 6312 is plainly to protect children, end
the abuse and exploitation of children, and eradicate the
production and supply of child pornography.” Id. This
[c]ourt noted that [Appellant] had a prior record score of
5. This [c]ourt considered that [Appellant] was remorseful
at sentencing and he stated that he would seek treatment
along with the fact that [Appellant] has a criminal history.
While [Appellant’s] criminal history does not include
offenses that are similar to the instant offense, he does
have a somewhat lengthy criminal history, a majority of
which dates back as far as to the 1980’s. Therefore, this
[c]ourt decided to run the seven counts of Possession of
Child Pornography concurrently. The [c]ourt imposed a
sentence on Criminal Use of a Communication Facility that
ran consecutively to the Possession of Child Pornography
counts. Thus, this [c]ourt considered factors one (the
protection of the public) and two (the gravity of the
offense as it relates to the victim and on the community)
when imposing [Appellant’s] sentence.
As to rehabilitation, [Appellant] is correct that this [c]ourt
did not specifically mention the rehabilitation factor at
-9-
J-S58045-15
sentencing[,] however[,] this court did consider
[Appellant’s] rehabilitation when imposing sentence. …
When imposing sentence, this [c]ourt considered the fact
that [Appellant] observed/possessed child pornography on
at least seven different occasions over the course of four
months. This [court] found that a fourteen year aggregate
maximum sentence was necessary in order to attempt to
rehabilitate [Appellant] so he does not continue to aid an
online industry that revolves around the exploitation of
children.
Appellant cites [Commonwealth v. Coulverson, 34 A.3d
135 (Pa.Super. 2011),] for the proposition that “[a]
sentence may still be excessive regardless of the
commencement of terms of imprisonment in the standard
guidelines range if the upper end of the sentence imposes
a term unlikely to end during the defendant’s natural life
span or…perpetually subject to the discretion of the Board
of Probation and Parole.” [Id. at 148.] This [c]ourt finds
that Coulverson is distinguishable from [Appellant’s]
case. The Coulverson [C]ourt noted that the trial court
mainly took into account the crime’s impact on the victims
and the severity of the crime when imposing sentence.
Id. at 149-50. The trial court did not consider
“dysfunction” in Coulverson’s own life, his remorse, his
cooperation, his attempts at becoming a productive
member of society, and the possibility that he may
succeed at rehabilitation after serving a substantial term of
18 years of incarceration. Id. at 150. On the other hand,
this [c]ourt in the instant matter considered all [Section]
9721(b) factors when it imposed sentence. In addition,
Coulverson was sentenced to a hefty 90 year period of
confinement (80 years if legally sentenced) despite the
tragedy in Coulverson’s life. Id. at 148. However, here,
[Appellant] was merely sentenced to a maximum of 14
years of incarceration.
(Trial Court Opinion, filed June 4, 2015, at 6-8). The record shows the court
appropriately considered all relevant sentencing factors, and belies
Appellant’s claim that the court imposed an excessive aggregate sentence.
- 10 -
J-S58045-15
Additionally, the court had the benefit of a PSI report. See
Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super 2005) (stating where
sentencing court had benefit of PSI, law presumes court was aware of and
weighed relevant information regarding defendant’s character and mitigating
factors); Cruz-Centeno, supra (explaining that, absent more, standard
range sentence cannot be considered excessive or unreasonable where court
had benefit of PSI).
Appellant’s allegation that the court failed to state on the record its
reasons for the sentence does present a substantial question. See Dunphy,
supra. Nevertheless, at sentencing, the court explicitly stated that it took
into account the PSI report, which included various affidavits and Appellant’s
criminal history. The court also stated it considered Appellant’s age and the
nature of his offenses, and reviewed the Sentencing Guidelines before it
imposed standard range sentences for each of Appellant’s convictions.
Accordingly, the court adequately stated its reasons for the sentence at the
time of imposition. See Brown, supra; Malovich, supra. Following our
independent examination of the record, we affirm and grant counsel’s
petition to withdraw.
- 11 -
J-S58045-15
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2015
- 12 -