J-S12008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRACEY E. DOWNING
Appellant No. 1687 EDA 2015
Appeal from the Judgment of Sentence April 7, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000779-2015
BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 09, 2016
Appellant, Tracey E. Downing, appeals from the April 7, 2015
judgment of sentence of one to two years’ imprisonment in a state
correctional institution, imposed by the trial court after Appellant entered an
open guilty plea to one count of retail theft and one count of simple assault. 1
With this appeal, Appellant’s counsel has filed a petition to withdraw and an
Anders2 brief, stating that the appeal is wholly frivolous. After careful
review, we affirm and grant counsel’s petition to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3929(a) and 2701(a)(1), respectively.
2
Anders v. California, 386 U.S. 738 (1967).
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The trial court summarized the relevant factual and procedural history
of this case as follows.
On January 1, 2015, police responded to a
Wal-Mart store located in Bensalem Township, Bucks
County, Pennsylvania, to investigate the report of a
theft. Upon arriving at the scene, Wal-Mart security
advised police that a black male, later identified as
Appellant, had exited the store with six watches
worth a combined value of $239.84. As store
security attempted to stop Appellant, Appellant
shoved an employee, causing the employee to hit
her head against the wall. Appellant was then
located a short distance away from the Wal-Mart and
was identified as the perpetrator by Wal-Mart
security.
On April 7, 2015, Appellant entered an open
guilty plea to one count of retail theft and one count
of simple assault. The retail theft conviction was
graded as a felony of the third degree because
Appellant has an extensive criminal history including
over ten convictions for retail theft. Appellant was
sentenced on the retail theft conviction to twelve to
twenty-four months incarceration in a state
correctional institution. [No further penalty was
imposed for the simple assault conviction.]
Thereafter, Appellant filed a Motion for
Reconsideration of Sentence. After a hearing held
May 11, 2015, Appellant’s Motion was denied.
Appellant then timely filed [a] Notice of Appeal to the
Superior Court of Pennsylvania.[3]
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3
On June 11, 2015, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant complied on
June 26, 2015. The record does not indicate that Appellant filed a response
to the Anders brief.
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Trial Court Opinion, 7/7/15, at 1-2 (citations to notes of testimony and
footnotes omitted).
In the Anders Brief, counsel has raised the following issues for our
review.
1. Whether counsel’s petition to withdraw and
request for dismissal of the appeal should be
granted where counsel has diligently investigated
the possible grounds of appeal and finds the
appeal frivolous?
2. Did the sentencing court abuse its discretion by
imposing a sentence that was excessive in that it
exceeds what is necessary to protect the public
and rehabilitate the Appellant?
Anders Brief at 4.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, an Anders brief shall comply with the
requirements set forth by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in 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
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have led to the conclusion that the appeal is
frivolous.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client.
Counsel also must provide a copy of the Anders
brief to his client. Attending the brief must be a
letter that advises the client of his right to: (1)
retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points
that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel
in the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). “Once counsel has satisfied
the above requirements, it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,
“this Court must conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote and citation omitted).
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In this appeal, we conclude that counsel’s Anders brief complies with
the requirements of Santiago. First, counsel has provided a procedural and
factual summary of the case with references to the record. Second, counsel
advances relevant portions of the record that arguably support Appellant’s
claims on appeal. Third, counsel concluded, “Appellant’s counsel has
diligently investigated the possible grounds and finds the appeal frivolous.
Undersigned counsel can find no argument that arguably supports
Appellant’s appeal.” Anders Brief at 16. Lastly, counsel has complied with
the requirements set forth in Millisock. See Letter from Counsel to
Appellant, dated 8/17/15. As a result, we proceed to conduct an
independent review to ascertain if the appeal is indeed wholly frivolous.
Appellant asserts that the trial court abused its discretion by imposing
a sentence “that was excessive in that it exceeds what is necessary to
protect the public and rehabilitate the Appellant.” Anders Brief at 12-15.4
At the outset, we note that Appellant’s argument pertains to the
discretionary aspects of his sentence. “Pennsylvania law makes clear that
by entering a guilty plea, the defendant waives his right to challenge on
direct appeal all non[-]jurisdictional defects except the legality of the
sentence and the validity of the plea.” Commonwealth v. Lincoln, 72
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4
At the May 11, 2015 hearing on Appellant’s post-sentence motion to
reconsider sentence, Appellant did not offer any new information, but rather
expressed his desire to be incarcerated in a county facility with work release
eligibility. N.T., 5/11/15, at 2-3.
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A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d
319 (Pa. 2014). However, when a defendant’s plea is an open guilty plea,
he or she does not waive claims regarding the discretionary aspects of the
sentence “because there was no agreement as to the sentence [the
defendant] would receive.” Commonwealth v. Hill, 66 A.3d 359, 363 (Pa.
Super. 2013) (citation omitted). Nevertheless, “[t]here is no absolute right
to appeal when challenging the discretionary aspect of a sentence.”
Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation
omitted). When an appellant makes an argument pertaining to the
discretionary aspects of the sentence, this Court considers such an argument
to be a petition for permission to appeal. Commonwealth v. Buterbaugh,
91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal
denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this
Court determines that there is a substantial question that the sentence was
not appropriate under the sentencing code.” Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks
and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
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(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether 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.
[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).
Id.
Instantly, Appellant filed a timely motion for reconsideration of
sentence and notice of appeal. Also, the Anders brief includes a Rule
2119(f) statement. Anders Brief at 12-13. We therefore proceed to
address whether Appellant has raised a substantial question for our review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75
(Pa. 2013). “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.
(citations omitted). “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
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whether a substantial question exists.” Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa. Super. 2012).
In this case, Appellant avers that the trial court abused its discretion
based on the following claims.
The sentencing court failed to properly weigh
the mitigating factors presented by Appellant.
Moreover, the imposition of a state correctional
institute sentence was unreasonable when
considering the gravity of the offense, the need to
protect the public and Appellant’s rehabilitative
needs.
Appellant’s Pa.R.A.P. 2119(f) Statement, Anders Brief at 13.
This Court has long recognized that “an allegation that a sentencing
court … did not adequately consider certain factors does not raise a
substantial question that the sentence was inappropriate.” Commonwealth
v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008), appeal denied, 968 A.2d
1280 (Pa. 2009); see also Commonwealth v. Bullock, 868 A.2d 516, 529
(Pa. Super. 2005), affirmed, 913 A.2d 207 (Pa. 2006), cert. denied, 550
U.S. 941 (2007). Furthermore, this Court has held that an argument that
the trial court failed to consider certain mitigating factors in favor of a lesser
sentence does not present a substantial question appropriate for our review.
Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 2011);
accord Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Consequently, Appellant has failed to a raise a substantial question for our
review. See Edwards, supra.
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We note that even if we were permitted to address the merits,
Appellant would not be entitled to relief. The trial court explained
Appellant’s sentence, stating “[i]n light of Appellant’s significant criminal
history, and because the sentence fell within the standard range of the
sentencing guidelines, the trial court did not abuse its discretion…” Trial
Court Opinion, 7/7/15, at 2. The trial court further commented that “[i]n
imposing [Appellant’s] sentence, the trial court considered Appellant’s
extensive criminal history, which included one felony conviction and sixteen
misdemeanor convictions; over ten of which were for theft related offenses.
N.T., 4/7/2015, pp. 13-14.” The trial court expressed its rationale more
bluntly at sentencing, and after hearing Appellant’s motion for
reconsideration of sentence, as follows.
Well, it appears that [Appellant] is a career
criminal and a poor one. I can’t give [Appellant] a
sentence that is not one of total confinement in a
state correctional facility. To do so would be to
ignore [Appellant’s] history. And, of course, the fact
that [Appellant] assaulted somebody while
committing this offense.
N.T., 4/7/15, at 12.
I want to be more lenient to [Appellant], but I have
an obligation to the community as well.
It’s one thing for somebody to stand before me
on their second, third, fourth matter, but when you
get to your fifth, sixth, seventh, the game changes.
Your ninth, tenth, eleventh, it ups again. When you
get to number 17 and 18, [Appellant] pretty much
took the matter out of [the trial court’s] hands.
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N.T., 5/11/15, at 5-6.
Based on the foregoing, we agree with counsel that Appellant’s
sentencing issue lacks merit. In addition, we have reviewed the certified
record consistent with Flowers and have discovered no additional arguably
meritorious issues. Accordingly, we grant counsel’s petition to withdraw and
affirm the April 7, 2015 judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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Com. v. Downing, T.
Combined Opinion