J-S33021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS J. SCHRAM
Appellant No. 1267 WDA 2015
Appeal from the Judgment of Sentence July 15, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000045-2013
CP-33-CR-0000046-2013
CP-33-CR-0000047-2013
BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 25, 2016
Appellant, Thomas J. Schram, appeals from the judgment of sentence
entered on July 15, 2015, following revocation of his probationary sentences
for technical violations. In addition, Appellant’s court-appointed counsel filed
both a petition to withdraw as counsel and an accompanying brief pursuant
to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel
complied with the procedural requirements necessary for withdrawal.
Moreover, after independently reviewing the record, we conclude that the
instant appeal is wholly frivolous. We therefore grant counsel’s petition to
withdraw and affirm Appellant’s judgment of sentence.
*Former Justice specially assigned to the Superior Court.
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We summarize the factual and procedural history of this case as
follows. On April 17, 2013, Appellant entered guilty pleas to three counts of
issuing bad checks, 18 Pa.C.S.A. § 4105(a)(1), at docket numbers
CP-33-CR-45-2013, CP-33-CR-46-2013, and CP-33-CR-47-2013. Each
offense constituted a misdemeanor of the second degree. Thereafter, the
trial court sentenced Appellant to two years’ probation at each count and
ordered that all sentences should run concurrently.
While serving his sentences, Appellant violated the terms of his
probation on four separate occasions. Appellant twice committed technical
violations by using drugs and was re-sentenced on January 7, 2015 and April
15, 2015. On May 20, 2015, after Appellant admitted to a third technical
violation stemming from his use of heroin, the trial court modified his
probationary sentence at CP-33-CR-45-2013 to include 30 days’
incarceration in the Jefferson County jail. Appellant’s other sentences at
CP-33-CR-46-2013 and CP-33-CR-47-2013 remained unaltered. On July 15,
2015, following a fourth admission to the ingestion of heroin in violation of
his probationary terms, the trial court revoked Appellant’s probation at all
three dockets and re-sentenced him to an aggregate term of 32 to 72
months in state prison.1
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1
At CP-33-CR-45-2013, the trial court sentenced Appellant to one to two
years in state prison, with credit for time served. At CP-33-CR-46-2013, the
trial court sentenced Appellant to one to two years in state prison, with
credit for time served, consecutive to the punishment ordered at
(Footnote Continued Next Page)
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On August 4, 2015, Appellant filed a motion to reconsider his sentence
nunc pro tunc, claiming that the trial court abused its discretion by imposing
too severe a punishment. The trial court denied relief on August 5, 2015.
On August 10, 2015, Appellant filed a timely notice of appeal. Thereafter, in
response to an order of court, Appellant filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) and the trial court
issued its Rule 1925(a) opinion on September 29, 2015. See Trial Court
Opinion, 9/29/15.
On appeal, Appellant’s counsel included one issue in his Anders brief:
Whether the trial court abused its discretion when it revoked
Appellant’s probation and re-sentenced him to serve a sentence
of incarnation in the [s]tate [c]orrectional [i]nstitution
aggregating to a minimum of two (2) years eight (8) months to
a maximum of six (6) years with credit for time served and a
recommendation of Motivational Boot Camp at all three dockets
for [A]ppellant’s violations of probation/parole[?]
Anders Brief at 3.
Before reviewing the merits of this appeal, however, this Court must
first determine whether counsel fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v.
Washington, 63 A.3d 797, 800 (Pa. Super. 2013). To withdraw under
_______________________
(Footnote Continued)
CP-33-CR-45-2013. At CP-33-CR-47-2013, the court sentenced Appellant to
serve eight months to two years in state prison, with credit for time served,
consecutive to the punishment imposed at CP-33-CR-46-2013. The court
recommended Appellant for Motivational Boot Camp at all three dockets and
declared Appellant’s eligibility for the Recidivist Risk Reduction Incentive
Program at 24 months.
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Anders, court-appointed counsel must satisfy certain technical
requirements. First, counsel must “petition the court for leave to withdraw
and state that after making a conscientious examination of the record, he
has determined that the appeal is frivolous.” Commonwealth v.
Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an
Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts,
with citations to the record;
(2) refer[s] to anything in the record that counsel believes
arguably supports the appeal;
(3) set[s] forth counsel’s conclusion that the appeal is frivolous;
and
(4) state[s] 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.
Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and “advise[] him of his right to retain new counsel, proceed pro se or raise
any additional points that he deems worthy of the court’s attention, and
attach[] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation
omitted).
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If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5 (citation
omitted). It is only when both the procedural and substantive requirements
are satisfied that counsel will be permitted to withdraw. In the case at bar,
counsel has met all of the above procedural obligations.2 We now turn to
the issue raised in the Anders brief.
The Anders brief contends that the trial court abused its discretion in
imposing too severe a punishment under the circumstances of the case and
in view of the nature of Appellant’s probation violations. Anders Brief at 6.
This claim does not challenge the revocation of Appellant’s probation or the
fact that the trial court imposed a sentence of total confinement upon
Appellant. Rather, Appellant’s claim challenges the discretionary aspects of
his sentence. Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super.
2010), appeal denied, 25 A.3d 328 (Pa. 2011).
“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.” Commonwealth v. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an
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2
Appellant has not filed a response to counsel’s petition to withdraw.
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automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
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. [708];
(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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when
a court revokes probation and imposes a new sentence, a criminal defendant
needs to preserve challenges to the discretionary aspects of that sentence
either by objecting during the revocation sentencing or by filing a
post-sentence motion”). As previously noted, Appellant filed a timely notice
of appeal and his claim was properly preserved in a post-sentence motion.
Counsel’s Anders brief also contains a statement pursuant to Pa.R.A.P.
2119(f). Thus, we turn to whether the appeal presents a substantial
question.
As we have explained:
The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.
Generally, however, in order to establish that there is a
substantial question, the appellant must show actions by the
sentencing court inconsistent with the Sentencing Code or
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contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted).
Appellant’s position in his Rule 2119(f) statement is that “[his]
sentences are manifestly unreasonable in that they constitute too severe of
a punishment under the circumstances of the case and the probation/parole
violations, and the [trial c]ourt’s reasons for the sentences do not justify the
severity.” Anders Brief at 6. “[T]his Court has [] determined that such an
assertion, in combination with allegations that a sentencing court did not
consider the nature of the offenses or provide adequate reasons for its
sentence, presents a plausible argument that the length of the sentence
violates fundamental sentencing norms.” Commonwealth v. Dodge, 77
A.3d 1263, 1271-1272 (Pa. Super. 2013).
In sentencing Appellant, the trial court was required to “consider the
general principles and standards of the Sentencing Code.” Commonwealth
v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses
these general principles in the following manner:
the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs
of the defendant.
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42 Pa.C.S.A. § 9721(b). In addition, 42 Pa.C.S.A. § 9771(c) permits the
trial court to impose a sentence of total confinement in order to vindicate its
authority. 42 Pa.C.S.A. § 9771(c).
We also note that when the trial court has the benefit of a presentence
investigation (PSI) report, “we presume the court was aware of and weighed
information concerning Appellant’s character when making its sentencing
decision.” Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super.
2010).
Here, the trial court offered the following explanation for the sentence
imposed in this case:
As he frankly acknowledged, [Appellant] was a drug addict who
had been in front of the [trial c]ourt many times and did not
know how to get the help he knew he needed. He had been
given multiple breaks in the past, one of which was to serve his
revocation sentence in the local jail rather than state prison. He
did not respond to leniency, however, but repeatedly flouted the
[trial c]ourt’s attempts to show mercy and directives to comply
with the law and its orders. As a result, even [Appellant] was
expecting a state sentence on July 15, 2015. All he asked was
that the [trial c]ourt send him with a boot camp
recommendation, which is what it did.
[Appellant] complained, nonetheless, because he was hoping for
a lower minimum. The [trial c]ourt explained exactly why it was
imposing a higher minimum, however, and that was as an
incentive for him to actually complete the boot camp program
rather than decide he would rather serve his minimum in prison
and get paroled sooner.
What the record clearly conveys, then, is that the [trial c]ourt
deliberately fashioned a sentence with [Appellant’s] particular
needs and circumstances in mind. To that end, it was fully
aware of his background and other information it needed to
appropriately do so. [The trial court stated on the record that it
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reviewed Appellant’s PSI report and considered Appellant’s age,
his background, his prior record, and everything necessary for
sentencing. The record] further reflects that the [trial c]ourt did
indeed articulate its reasons for the sentence.
Trial Court Opinion, 9/29/15, at 1-2 (record citations omitted).
Based upon the foregoing, we discern the trial court did not abuse its
discretion in imposing Appellant’s sentence. The trial court had the benefit
of a PSI report, so we presume the trial court was aware of Appellant’s
individual circumstances, including his rehabilitative needs. Moury, 992
A.2d at 175. The trial court went further, however, and before imposing a
sentence of total confinement carefully considered the need to protect the
public, the gravity of Appellant’s conduct and its potential impact on the
community, and Appellant’s rehabilitative needs. Ultimately, the trial court
concluded that Appellant’s continued use of narcotics, despite supervision,
posed an ongoing risk of his continued involvement with criminal activity and
that a shorter state sentence would fail to ensure that Appellant received the
rehabilitative programming that he needs. The record firmly supports these
assessments.
After an independent review of the entire record, we see nothing that
might arguably support this appeal. The appeal is, therefore, wholly
frivolous. Accordingly, we affirm Appellant’s judgment of sentence and grant
counsel’s petition for leave to withdraw.
Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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