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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
KEITH BEAVER, :
:
Appellant : No. 1163 EDA 2015
Appeal from the Judgment of Sentence March 18, 2015,
Court of Common Pleas, Delaware County,
Criminal Division at No. CP-23-CR-0003379-2010
BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 08, 2015
Keith Beaver (“Beaver”) appeals from the judgment of sentence
entered following the revocation of his probation and parole. His court-
appointed counsel (“Counsel”) has filed a petition seeking permission to
withdraw and a brief in support thereof pursuant to Anders v. California,
386 U.S. (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). For the following reasons, we deny Counsel’s petition and remand
for further action in conformance with our decision.
Counsel seeking to withdraw pursuant to Anders must fulfill certain
requirements. These requirements and the significant protection they
provide to an Anders appellant arise because a criminal defendant has a
constitutional right to a direct appeal and to counsel on that appeal.
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). We
have summarized these requirements as follows:
Direct appeal counsel seeking to withdraw under
Anders must file a petition averring that, after a
conscientious examination of the record, counsel
finds the appeal to be wholly frivolous. Counsel must
also file an Anders brief setting forth issues that
might arguably support the appeal along with any
other issues necessary for the effective appellate
presentation thereof.
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.
Id. (citations omitted).
Moreover, there are requirements as to precisely what an Anders
brief must contain:
[T]he Anders brief that accompanies court-appointed
counsel’s petition to withdraw … 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. If appointed counsel has met these obligations,
it is this Court’s responsibility “to make a full examination of the proceedings
and make an independent judgment to decide whether the appeal is in fact
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wholly frivolous.” Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa.
Super. 2015). “In so doing, we review not only the issues identified by
appointed counsel in the Anders brief, but examine all of the proceedings to
make certain that appointed counsel has not overlooked the existence of
potentially non-frivolous issues.” Id. (citation omitted).
We conclude that Counsel has adequately complied with these
requirements. He has filed an application with this Court stating that after
reviewing the record, he finds this appeal to be frivolous and without merit.
In conformance with Santiago, the brief filed by Counsel includes a
summary of the procedural history and sets forth one issue that could
arguably support an appeal. Counsel explains why it would be frivolous to
raise this issue on appeal and states his conclusions to that effect. Finally,
Counsel has appended to his application the letter that he sent to Beaver,
which enclosed his application to withdraw and Anders brief, and advised
Beaver that he may proceed pro se or with private counsel.1 Accordingly, we
undertake our independent review to determine whether this appeal is wholly
frivolous.
We summarize the relevant factual and procedural histories as follows.
In 2011, Beaver pled nolo contendere to statutory sexual assault, indecent
assault and endangering the welfare of a child. He was sentenced to a total
of seventeen years of sex offender probation. In 2014, Beaver was found to
1
Notably, Beaver has filed a pro se advocate’s brief.
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have violated his probation, and the trial court resentenced him to time-
served to twenty-three months on the endangering the welfare of children
conviction, but allowed “immediate parole upon an approved parole plan.”
Certificate of Imposition of Judgment of Sentence, 2/20/14. The trial court
also imposed a sentence of ten years of probation on the statutory sexual
assault conviction. Id.
In March 2015, the trial court found that Beaver violated the terms of
his probation and parole by visiting websites forbidden by the terms of his
probation and by being discharged from a mandatory sex offender treatment
program for failure to abide by its rules. N.T., 3/18/15, at 4-5, 42. The trial
court revoked Beaver’s parole and probation and resentenced him to the
“full back time of 572 days” on the endangering the welfare of a child
conviction, in addition to a concurrent term of eighteen to thirty-six months
of incarceration on the statutory sexual assault conviction. Certificate of
Judgment of Sentence, 3/18/15. Beaver filed a timely post-sentence
motion, but he filed a notice of appeal before the trial court disposed of it.
In response to the trial court’s directive to file a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b), Counsel filed a
statement indicating his intention to file an Anders brief, as permitted by
Pa.R.A.P. 1925(c)(4).
The sole issue that Counsel presents is “[w]hether the aggregate
sentence imposed … was harsh and excessive under the circumstances[.]”
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Anders Brief at 1. This claim is addressed to the discretionary aspects of
Beaver’s sentence. There is no absolute right to appeal when challenging
the discretionary aspect of a sentence. Commonwealth v. Cartrette, 83
A.3d 1030, 1042 (Pa. Super. 2013) (en banc). Before we may review the
merits of a challenge to the discretionary aspects of a sentence, we must
determine: (1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant's brief has a fatal
defect; 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, 909 A.2d 303 (Pa. 2006). The record reveals that the notice
of appeal was timely filed. Although the docket indicates that Beaver filed a
post-sentence motion on March 26, 2015, it was not included in the certified
record on appeal and so we cannot discern whether this issue was properly
raised. However, for purposes of this appeal, we will assume that it was
properly raised therein. Further, there is a briefing defect, as Counsel has
not included a statement as required by Pa.R.A.P. 2119(f) in the Anders
brief. The Commonwealth has not objected to that omission, and so this
defect does not preclude our review. See Commonwealth v. Antidormi,
84 A.3d 736, 759 (Pa. Super. 2014).
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The fourth factor of the Evans test as set forth above requires that we
consider whether the issue presented by Counsel raises a substantial
question requiring us to review the discretionary aspects of the sentence.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Moury, 992 A.2d
162, 170 (Pa. Super. 2010). A substantial question exists only when an
appellant advances a colorable argument that the sentence is either
inconsistent with a specific provision of the Sentencing Code or contrary to
the fundamental norms which underlie the sentencing process. Id. Counsel
claims that Beaver’s sentence is excessively long and therefore
inappropriate. Anders Brief at 4. However, a bald claim of excessiveness
does not raise a substantial question so as to invoke our review. See
Commonwealth v. Reynolds, 835 A.2d 720, 733 (Pa. Super. 2003).
Accordingly, we agree with Counsel that there is no merit to this claim.2
Nonetheless, our independent review of the record reveals a
potentially non-frivolous issue. When imposing Beaver’s sentence, the trial
court did not have the benefit of a pre-sentence investigative report and it
stated only that although Beaver was in compliance with “some aspects of
2
In his discussion on this issue, Counsel includes one sentence that seems
to allege a separate claim: that the trial court erred by not considering
certain mitigating factors. Anders Brief at 4. A claim that the trial court
failed to consider mitigating factors, by itself, does not present a substantial
question so as to invoke our review. Commonwealth v. Swope, __ A.3d
__, 2015 WL 5439772 at *4 (Sept. 16, 2015). Accordingly, to the extent
that Counsel was attempting to raise such a claim, he fails.
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the treatment … it’s also clear that there have been violations[.]” N.T.,
3/18/15, at 42. It then imposed the sentence recommended by the
Department of Adult Probation and Parole (although it did not state the
terms of this recommended sentence), instructed Counsel to advise Beaver
of his post-sentence and appellate rights, and concluded the proceedings.
Id. Our law provides that
in all cases where the court resentences an offender
following revocation of probation ... 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 and
failure to comply with these provisions shall be
grounds for vacating the sentence or resentence and
resentencing the defendant.
Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015) (quoting Commonwealth v. Cartrette,
83 A.3d 1030, 1040–1041 (Pa. Super. 2013)); see also 42 Pa.C.S.A. §
9721(b) (“In every case in which the court … resentences an offender
following revocation of probation … 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.”). “A trial court need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court's consideration of the facts of the crime and
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character of the offender.” Colon, 102 A.3d at 1044 (quoting
Commonwealth v. Crump, 995 A.2d 1280, 1282-83 (Pa. Super. 2010)).
Based upon the record before us, there appears to be a non-frivolous
issue as to whether the trial court complied with its obligation to state the
reasons for the sentence it imposed on Beaver. Such determinations are not
subject to a bright-line rule, but are highly dependent on the facts and
circumstances of each sentencing proceeding. See Antidormi, 84 A.3d at
761 (recognizing that the trial court’s obligation is met where “the record as
a whole … reflect[s] due consideration … of the statutory considerations[.]”).
As an indigent defendant on direct appeal, Beaver is entitled to the benefit of
counsel to assess whether this claim is viable. Woods, 939 A.2d at 898.
Accordingly, we deny Counsel’s petition to withdraw and remand for the
filing of either an advocate’s brief or another Anders brief.3
Petition to withdraw denied. Case remanded. Panel jurisdiction
retained.
Platt, J. joins the Memorandum.
Lazarus, J. concurs in the result.
3
On November 19, 2015, Beaver filed a motion with this Court attempting
to raise additional claims of trial court error, including the issue we have
identified. In light of our disposition, we deny Beaver’s motion as moot.
However, we instruct that on remand Counsel should consider whether to
raise the other issues Beaver identified in this motion as well as the claim he
raised in the pro se brief he filed in support of this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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