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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CORTEZ JIVAN CARNEY, : No. 1696 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, May 6, 2015,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0006937-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 13, 2016
Cortez Jivan Carney appeals from the judgment of sentence entered
on May 6, 2015, in the Court of Common Pleas of Delaware County.
On October 6, 2011, appellant, who was 19-years old, was arrested for
contacting, communicating with, and arranging to have sex with a
14-year-old female. He was charged with corruption of minors, contact/
communication with minor, and harassment.1
On January 30, 2014, appellant entered a negotiated plea of guilty to
the offenses of corruption of minors and harassment. In accordance with
the plea, appellant was sentenced to five years of probation. The conditions
of his probation included, inter alia, forfeiture of his cell phone, no contact
1
18 Pa.C.S.A. § 6301(a)(1), § 6318(a)(1), and § 2709(a)(2), respectively.
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with the victim, completion of sexual offender’s treatment program, no
alcohol, and no contact with minors without an adult present.
On April 14, 2015, appellant violated the terms of his probation by
having improper contact with a minor.2 A hearing was held on May 6, 2015,
in accordance with Gagnon v. Scarpelli, 411 U.S. 778 (1973). At the
hearing, appellant stipulated that he was in violation of his probation.
(Transcript of proceedings, 5/16/15 at 3.) Appellant also indicated, through
counsel, that he had a mental health problem and asked that he be given
treatment for it as part of his new sentence. (Id.) The trial court adopted
the recommendation of appellant’s probation officer, revoked appellant’s
probation, and resentenced him to a term of time-served (22 days) to
23 months of incarceration with three years’ consecutive probation. The trial
court granted his request to include mental health treatment at the prison.
The court ordered that appellant be immediately paroled upon completion of
the sexual offender program at the Delaware County Prison and an approved
parole plan with general and special sex offender rules. (Id. at 3-4.) When
asked whether he understood his right to ask the court for reconsideration,
appellant replied that he understood “[n]one of it, like I’m having handicaps,
I’m having a challenge completely.” (Id. at 5.)
2
Appellant admitted having contact with his minor sister via Facebook and
text messaging. At appellant’s request, his minor sister sent appellant an
inappropriate picture of her buttocks and appellant admitted to having
masturbated to the picture multiple times.
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Appellant filed a timely notice of appeal and was ordered to file a
concise statement of matters complained of on appeal on June 8, 2015. In
response to this order, counsel stated his intent to withdraw on the basis of
frivolity. Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). Appellant’s counsel filed both an
Anders brief and a petition to withdraw as counsel. The following principles
guide our review of this matter.
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.
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
either to 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.
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Commonwealth v. Wrecks, 931 A.2d 717, 720-721 (Pa.Super. 2007)
(citations omitted). Our supreme court has clarified portions of the Anders
procedure:
[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.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above. Therefore, we must now make a full
examination of the proceedings and make an independent judgment to
decide whether the appeal is, in fact, wholly frivolous. Commonwealth v.
Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015), quoting Santiago, 978
A.2d at 354 n.5.
Counsel presented this court with one issue of arguable merit
concerning a challenge to the discretionary aspects of his sentence. That is:
whether the new maximum sentence of 23 months of incarceration is harsh
and excessive in light of appellant’s mental health problem?
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“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011) (citation omitted).
An appellant challenging the discretionary
aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
(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).
Id.
At the outset we note that counsel has not included the requisite
Pa.R.A.P. 2119(f) statement in the brief.3 However, we note that “[w]here
counsel files an Anders brief, this court has reviewed the matter even
absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do not consider
3
In pertinent part, Rule 2119 provides:
An 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. The
statement shall immediately precede the argument
on the merits with respect to the discretionary
aspects of sentence.
Pa.R.A.P. 2119(f).
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counsel’s failure to submit a Rule 2119(f) statement as precluding review of
whether Appellant’s issue is frivolous.” Commonwealth v. Zeigler, 112
A.3d 656, 661 (Pa.Super. 2015) (citations omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super. 2011). Further:
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.
Id. (internal citations omitted).
Upon revoking probation, a sentencing court may choose from any of
the sentencing options that existed at the time of the original sentencing,
including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(1) the
defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned, or (3) such a sentence is essential to vindicate the authority
of the court.” 42 Pa.C.S.A. § 9771(c).
Section 9721, which governs sentencing generally, 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
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for the sentence imposed.” Id. Failure to comply with these provisions
“shall be grounds for vacating the sentence or resentence and resentencing
the defendant.” Id. See also Commonwealth v. Aldinger, 436 A.2d
1196 (Pa.Super. 1981) (stating that a trial court must state its reasons on
the record when it imposes sentence following revocation of probation).
Additionally, we have noted that the reasons stated for a sentence
imposed should reflect the court’s consideration of the criteria of the
Sentencing Code, 42 Pa.C.S.A. § 9701 et seq., the circumstances of the
offense, and the character of the offender. Commonwealth v. DeLuca,
418 A.2d 669, 670 (Pa.Super. 1980).
We have reviewed the sentencing transcript. The probation officer
who testified at the May 6, 2015 hearing, only stated that “defendant is in
violation of his probation” and that he “also stipulates to the violations.”
(Transcript of proceedings, 5/16/15 at 3.) Aside from those brief
statements, there was no other discussion on the record of why the court
sentenced appellant as it did. There was no pre-sentence investigation
report. There was no discussion on the record whatsoever as to how the
court arrived at the sentence. The trial court gave no reasons for the
sentence. It gave no indication that it considered appellant’s character, any
mental health problems, or the circumstances of the offense for which he
was sentenced. The court merely stated, “Court adopts the recommendation
of Adult Probation and Parole.” (Id. at 4.)
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In Commonwealth v. Riggins, 377 A.2d 140 (Pa.Super. 1977), we
explained:
The benefits of requiring the trial court to state
its reasons for the imposition of its sentence are
manifold: First, requiring the trial court to articulate
its reasons for selecting a sentence will promote
more thoughtful consideration of relevant facts and
will help rationalize the sentencing process. It will
safeguard against arbitrary decisions and prevent
consideration of improper and irrelevant factors. It
will minimize the risk of reliance upon inaccurate
information contained in the presentence report
.... Finally, a statement of reasons will be
invaluable in aiding appellate courts to ascertain
whether the sentence imposed was based upon
accurate, sufficient and proper information.
Id. at 147-148.
Here, the trial court failed to state any reason whatsoever on the
record for the sentence imposed on appellant. As a result, we are unable to
determine from this record whether the sentence imposed was based upon
accurate, sufficient, and proper information. Therefore, we are constrained
to vacate the judgment of sentence and remand the matter to afford the
trial court an opportunity to resentence appellant and to include a statement
of reasons for sentence imposed.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished. Counsel’s petition to withdraw is denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2016
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Com. v. Carney, C.
Combined Opinion