J-S13018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD WILLIAM BAKER
Appellant No. 704 WDA 2015
Appeal from the Judgment of Sentence entered April 2, 2015
In the Court of Common Pleas of Erie County
Criminal Division at Nos: CP-25-CR-0001097-2013
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 13, 2016
Appellant, Richard William Baker, appeals from the judgment of
sentence the Court of Common Pleas of Erie County entered April 2, 2015.
In the brief filed by his counsel in accordance with Anders v. California,
386 U.S. 938 (1969), as refined by Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), Appellant contends his sentence is manifestly excessive.
Specifically, Appellant argues the sentencing court failed to consider
mitigating factors in fashioning his sentence. His counsel concurrently filed a
petition for leave to withdraw. For the reasons explained below, we affirm
Appellant’s judgment of sentence and grant counsel’s petition for leave to
withdraw.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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The relevant background of the case can be summarized as follows:
On September 10, 2013, Appellant pled no contest to one charge of
possession with intent of deliver a controlled substance. Subsequently, the
trial court sentenced him to a term of imprisonment of 4 to 12 months,
followed by a 20-month term of probation. A parole revocation hearing was
held on October 8, 2014, at which time the trial court sentenced Appellant to
the same imprisonment term originally imposed (4 to 12 months), with
credit for time served (154 days). Appellant was released on parole on
October 13, 2014. On April 2, 2015, following another violation, the trial
court held a parole hearing. At the conclusion of the hearing, the trial court
reimposed the term of 4 to 12 months’ incarceration, crediting him for time
served, and finally discharged him from this term of the sentence.
Regarding the probation, the trial court revoked his probation, and
sentenced him to 10 to 20 months’ incarceration in the county jail.
Appellant timely moved for reconsideration of sentence, which the trial court
denied. This appeal followed.
On appeal, Appellant argues the sentence imposed is manifestly
excessive. To this end, Appellant argues the sentencing court abused its
discretion in fashioning his sentence because it failed to account for some
mitigating circumstances. Specifically, Appellant argues the sentencing
court did not account adequately that he has a career as mechanic, that he
maintains a job in order to pay his support obligations, that he is the father
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of one son with whom he maintains a close relationship, and that his prior
record score was zero. Appellant’s Brief at 7-8.
We must address the request to withdraw before reviewing the merits
of Appellant’s issue. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005). As this Court recognized in Commonwealth v. Cartrette,
83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in Santiago
did not change the procedural requirements for requesting withdrawal from
representation.
Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous;
2) furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel
or raise additional arguments that the defendant deems worthy
of the court’s attention.
Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.
Super. 2009)).
We conclude counsel has satisfied the procedural requirements set
forth in Anders.1 In the petition to withdraw, counsel explains her
conclusion, based on a review of the case, that there are no meritorious
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1
Although in her petition to withdraw, counsel stated that she was filing an
Anders/McClendon brief, the brief filed with this Court appropriately refers
to Santiago, requiring that counsel state the reasons for concluding the
appeal is frivolous, rather than comply with the standard set forth in
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), abrogated by
Santiago.
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issues to be raised on Appellant’s behalf and that proceeding with the case
would be frivolous. In addition, counsel furnished a copy of the appellate
brief to Appellant and advised Appellant of his right to retain new counsel or
act on his own behalf to raise additional arguments or points for this Court’s
consideration.
Having concluded counsel satisfied the procedural requirements of
Anders, we must ascertain whether the brief satisfied the substantive
mandates prescribed in Santiago. In Santiago, our Supreme Court
announced:
[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.
In the Anders brief, counsel has included a statement of the case that
includes a procedural history of the case. Counsel has satisfied the first
requirement.
The second required element of an Anders brief is reference to
anything in the record that counsel believes arguably supports the appeal.
Here, counsel suggests that the trial court failed to account for mitigating
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circumstances. Counsel, therefore, has satisfied the second Anders
requirement.
Counsel also has satisfied the third element of Anders, stating her
conclusion that the appeal is frivolous. Id. at 8-9. Finally, counsel provided
her reasons for concluding the appeal is frivolous. Id. at 9. Thus, counsel
has satisfied the fourth and final element of the Anders test.
Having determined the procedural and substantive requirements of
Anders are satisfied, we must conduct our own independent review of the
record to determine if the issue identified in this appeal is, as counsel
asserts, wholly frivolous, or if there are any other meritorious issues present
in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)
(“[T]he court—not counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so finds, it
may grant counsel’s request to withdraw.”).
As noted above, Appellant argues the trial court abused its discretion
by imposing a manifestly excessive sentence. Specifically, Appellant argues
the trial court failed to account for mitigating circumstances. Appellant’s
Brief at 7-8. As such, Appellant presents a challenge to the discretionary
aspects of his sentence. See Commonwealth v. Hyland, 875 A.2d 1175,
1182-83 (Pa. Super. 2005).
In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this
Court reiterated:
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Appellant is not entitled as of right to a review of such a
challenge. Our jurisdiction over a claim regarding the
discretionary aspects of sentence must be established as follows:
We conduct a four-part analysis to determine: (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. § 9781(b).
Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (internal quotation marks, citations and modifications
omitted)).
A review of the record reveals that Appellant has satisfied the first
three elements of the test. We now turn to the fourth element, whether
there is a substantial question under 42 Pa.C.S.A. § 9781(b) that the
sentence appealed from is not appropriate.2
Generally, a bald claim of excessiveness based on inadequate
consideration of mitigating factors fails to raise a substantial question. See,
e.g., Commonwealth v Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
Here, it is no different. Appellant’s claim amounts to no more than a bald
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2
“A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Johnson, G., 873 A.2d 704, 708 (Pa. Super.
2005).
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allegation of abuse of discretion. Additionally, we have held “[t]hat the
court[’s] refus[al] to weigh the proposed mitigating factors as Appellant
wished, absent more, does not raise a substantial question.” Moury, 992
A.2d at 175 (citations omitted). Appellant, therefore, failed to raise a
substantial question for our review.
Additionally, a review of the revocation/sentencing hearing transcript
reveals that the sentencing court was fully aware of the mitigating
circumstances named above. In essence, Appellant is asking this Court to
substitute its judgment for that of the sentencing court by reweighing these
mitigating circumstances in a light more favorable to him. We cannot do so.
See, e.g., Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super.
1999), appeal denied, 790 A.2d 1013 (Pa. 2001) (“[W]hen reviewing
sentencing matters, we must accord the sentencing court great weight as it
is in the best position to view the defendant’s character, displays of remorse,
defiance or indifference, and the overall effect and nature of the crime.”)
(citation omitted).
In summary, we agree with counsel that any challenge to the trial
court’s sentence is frivolous. Our independent review of the record does not
reveal any non-frivolous arguments available to Appellant. We therefore
affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Counsel’s petition for leave to
withdraw is granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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