J-S56045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT MONACO,
Appellant No. 44 MDA 2015
Appeal from the Judgment of Sentence December 11, 2014
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0000488-2014
CP-40-CR-0000879-2014
CP-40-CR-0002745-2014
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 06, 2015
In these consolidated cases, Appellant, Robert Monaco, appeals from
the judgment of sentence imposed following his entry of guilty pleas at three
criminal docket numbers. Counsel for Appellant has petitioned to withdraw
on the ground that his issue on appeal is wholly frivolous.1 We grant
counsel’s petition to withdraw and affirm the judgment of sentence.
The relevant facts and procedural history of this matter are as follows.
On July 2, 2014, Appellant pleaded guilty to one count each of resisting
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-S56045-15
arrest and corruption of minors2 at Docket No. CP-40-CR-0000879-2014.
While he was on bail pending sentencing, he was arrested for robbery.3
Appellant pleaded guilty to that offense on October 23, 2014, at Docket No.
CP-40-CR-0002745-2014. On that same date, he pleaded guilty to one
count of insurance fraud4 at Docket No. CP-40-CR-0000488-2014. The court
ordered preparation of a pre-sentence investigation report (PSI),5 and the
cases were consolidated for sentencing purposes.
On December 11, 2014, the trial court held a sentencing hearing, at
which defense counsel requested that the court impose a county sentence so
that Appellant could obtain treatment for his drug addiction in prison. (See
N.T. Sentencing, 12/11/14, at 3-4). The Commonwealth did not oppose
imposition of a county sentence. (See id. at 5-6). The court stated:
Again note that [Appellant] was on bail pending sentencing
when the robbery offense occurred. We have considered all the
submissions made at today’s sentencing hearing. Based on
everything before the [c]ourt, the [c]ourt believes a term of
incarceration is appropriate. I do not find [Appellant] to be
amenable to supervision at this time, and we have concluded
____________________________________________
2
18 Pa.C.S.A. §§ 5104 and 6301(a)(1)(i), respectively.
3
18 Pa.C.S.A. § 3701(a)(1)(v).
4
18 Pa.C.S.A. § 4117(a)(3).
5
The PSI outlined Appellant’s prior convictions resulting in terms of county
incarceration for offenses including simple assault, reckless endangerment,
escape, and retaliation against a witness/victim. (See Trial Court Opinion,
3/26/15, at 2 n.3).
-2-
J-S56045-15
that rehabilitation at this point would be best achieved at the
state level.
(Id. at 7).
The court then sentenced Appellant to an aggregate term of not less
than twenty-one nor more than forty-eight months’ incarceration in a state
correctional institution. On December 31, 2014, Appellant, acting pro se,
filed timely notices of appeal.
On January 9, 2015, this Court entered a per curiam order directing
the trial court to hold a hearing pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998), to determine whether Appellant desired counsel on
appeal. The trial court held a Grazier hearing on January 20, 2015, and it
appointed counsel in accordance with Appellant’s request. On February 20,
2015, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant timely complied on March 12, 2015, alleging trial court abuse of
discretion in refusing to permit him to serve his sentence in the county
correctional facility. (See Rule 1925(b) Statement, 3/12/15, at unnumbered
page 1). The Commonwealth filed a response on March 19, 2015, stating
that the court was correct in its sentencing decision. (See Commonwealth’s
Response, 3/19/15, at unnumbered page 2). The trial court entered an
opinion on March 26, 2015. See Pa.R.A.P. 1925(a).
On June 15, 2015, counsel for Appellant filed an Anders brief and a
petition to withdraw as counsel stating his belief that this appeal is wholly
frivolous. (See Petition to Withdraw as Counsel, 6/15/15, at unnumbered
-3-
J-S56045-15
page 1). Counsel has submitted to this Court a copy of his letter to
Appellant, enclosing a copy of the Anders brief, informing him of the
petition to withdraw, and advising him of his right to retain new counsel or
proceed with the appeal pro se. (See Letter from Matthew P. Kelly, Esq. to
Appellant, 6/15/15, at unnumbered page 1). Appellant has not responded.
[I]n the Anders brief that accompanies . . . 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, supra at 361.
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 to either 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. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)
(citations omitted).
-4-
J-S56045-15
In the instant case, counsel has complied with the Anders and
Santiago requirements. He has submitted a brief that summarizes the
case, (see Anders Brief, at 4, 6); referred to anything that might arguably
support the appeal, (see id. at 5, 7); and set forth his reasoning and
conclusion that the appeal is frivolous, (see id. at 7-8). See Santiago,
supra at 361. Counsel has filed a petition to withdraw, sent Appellant a
letter advising that he concluded that there are no non-frivolous issues,
provided him with a copy of the Anders brief, and notified him of his right to
retain new counsel or proceed pro se. Because counsel’s petition and brief
satisfy the requirements of Anders and Santiago, we will undertake our
own review of the appeal to determine if it is wholly frivolous. See
O’Malley, supra at 1266.
The Anders Brief raises the following issue for our review:
1. Whether the trial court abused its discretion in sentencing
Appellant by not permitting him to serve his sentence in Luzerne
County Correctional Facility when the Commonwealth did not
oppose that request[?]
(Anders Brief, at 1).6
Appellant’s issue challenges the discretionary aspects of his sentence.
Our standard of review is as follows:
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. An abuse of
____________________________________________
6
The Commonwealth submitted a letter to this Court advising that it is not
filing a brief and that it relies on the trial court’s opinion.
-5-
J-S56045-15
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal
denied, 85 A.3d 481 (Pa. 2014) (citation omitted).
However, “[t]he right to appeal the discretionary aspects of a sentence
is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.
Super. 2011) (citation omitted).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence [, see Pa.R.A.P. 2119(f)]; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code. . . .
[I]f the appeal satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),
appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
In the instant case, Appellant timely appealed and preserved his claim
in the trial court, and counsel has included a Rule 2119(f) statement in the
Anders brief. See id. With respect to the substantial question
requirement:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exits only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
-6-
J-S56045-15
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).
This Court has found an appellant’s claim that the trial court abused its
discretion by ordering him to serve his sentence in a state correctional
institution rather than in a county facility raises a substantial question. See
Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super. 2006).
Therefore, we will review Appellant’s claim on the merits.
Section 9762 of the Sentencing Code addresses where a convicted
defendant will serve a sentence of imprisonment. See 42 Pa.C.S.A. § 9762.
Subsection (b) states, in relevant part:
(1) Maximum terms of five or more years shall be committed to
the Department of Corrections for confinement.
(2) Maximum terms of two years or more but less than five
years shall be committed to the Department of Corrections for
confinement, except upon a finding of all of the following:
(i) The chief administrator of the county prison, or the
administrator’s designee, has certified that the county
prison is available for the commitment of persons
sentenced to maximum terms of two or more years but
less than five years.
(ii) The attorney for the Commonwealth has consented
to the confinement of the person in the county prison.
(iii) The sentencing court has approved the confinement
of the person in the county prison within the jurisdiction of
the court.
-7-
J-S56045-15
(3) Maximum terms of less than two years shall be committed
to a county prison within the jurisdiction of the court.
42 Pa.C.S.A. § 9762(b)(1)-(3)(emphases added).
Here, the length of Appellant’s maximum sentence is four years.
Thus, he is required to serve his sentence in a state correctional facility
unless all of the criteria set forth in section 9762(b)(2) are met. See id.
Although the Commonwealth consented to Appellant’s confinement in the
county prison, the trial court declined to approve the request for county
confinement, finding that a state sentence is appropriate. Prior to imposing
sentence, the court stated that it had considered the PSI report, 7 the
applicable sentencing guidelines, and a letter authored by Appellant’s drug
and alcohol therapist. (See N.T. Sentencing, 12/11/14, at 2, 4, 6). The
court emphasized the fact that Appellant was on bail awaiting sentencing on
the resisting arrest and corruption of minors convictions at the time he
committed the robbery offense. (See id. at 7). It determined, after
considering everything in the record before it, that a term of incarceration
was appropriate and that Appellant’s rehabilitative needs would best be met
at the state level. (See id.).
____________________________________________
7
“Our Supreme Court has determined that where the trial court is informed
by a pre-sentence report, it is presumed that the court is aware of all
appropriate sentencing factors and considerations[.]” Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009), appeal denied, 987 A.2d
161 (Pa. 2009) (citation omitted).
-8-
J-S56045-15
Upon review, we conclude that the trial court’s decision to commit
appellant to a state correctional institution, rather than a county facility, did
not constitute an abuse of discretion. See Clarke, supra at 1287. Our
review of the sentencing proceeding reveals that the trial court thoroughly
considered Appellant’s background and rehabilitative needs in deciding the
appropriate place of confinement. Furthermore, after independent review,
we determine that there are no other non-frivolous bases for appeal, and
this appeal is “wholly frivolous.” O’Malley, supra at 1266.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
-9-