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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID LEE CLOWNEY
Appellant No. 1798 MDA 2015
Appeal from the Judgment of Sentence September 15, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000958-2015
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED JUNE 14, 2016
Appellant, David Lee Clowney, appeals from the judgment of sentence
entered September 15, 2015, in the Court of Common Pleas of Lackawanna
County, following his guilty plea to Driving Under the Influence (“DUI”),
Highest Rate of Alcohol (3d offense), 75 Pa.C.S.A. § 3802(c). Additionally,
Appellant’s court-appointed counsel, Donna M. De Vita, Esquire, has filed an
application to withdraw as counsel pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We affirm the judgment of sentence and grant counsel’s petition to
withdraw.
On June 19, 2015, Appellant entered an open guilty plea to the
aforementioned DUI charge. Following a review of a pre-sentence
investigation report (“PSI”), the trial court sentenced Appellant to 16 to 36
months’ incarceration, followed by two years’ probation. Appellant filed a
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motion for reconsideration of sentence, which the trial court denied. This
timely appeal followed.
As noted, Attorney De Vita has requested to withdraw and has
submitted an Anders brief in support thereof contending that Appellant’s
appeal is frivolous. The Pennsylvania Supreme Court has articulated the
procedure to be followed when court-appointed counsel seeks to withdraw
from representing an appellant on direct appeal:
[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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once counsel
has met her 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.” Id. at 355 n.5 (citation omitted).
Counsel has substantially complied with the technical requirements of
Anders as articulated in Santiago.1 Additionally, counsel confirms that she
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1
While counsel did not include language in her petition to withdraw that she
reviewed the record and concluded that the appeal is without merit, she did
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sent a copy of the Anders brief to Appellant, as well as a letter explaining
that Appellant has the right to proceed pro se or the right to retain new
counsel. Counsel has appropriately appended a copy of the letter to the
motion to withdraw, as required by this Court’s decision in Commonwealth
v. Millisock, 873 A.2d 748 (Pa. Super. 2005). See also Commonwealth v.
Daniels, 999 A.2d 599, 594 (Pa. Super. 2010). Appellant has not filed a
response to the petition.
We now proceed to examine the issues counsel sets forth in the
Anders brief:
A. Whether the sentence imposed was inappropriately harsh and
excessive and an abuse of discretion?
B. Whether the lower court failed to consider that the Appellant
is a product of particular circumstances and conditions of
environment, but that these matters were not fully and
completely expressed at the time of sentencing?
Anders Brief at 4.
These claims constitute a challenge to the discretionary aspects of
Appellant’s sentence. Preliminarily, we must determine whether Appellant
has the right to seek permission to appeal the sentencing court’s exercise of
its discretion. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010). When an appellant challenges the discretionary aspects of his
sentence, we utilize a four-part test to determine:
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(Footnote Continued)
include that language in her letter to Appellant and in the Anders brief. See
Anders Brief at 13.
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(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.
Id. (citations omitted).
Here, Appellant challenged his sentence in a post-sentence motion and
filed a timely appeal. Appellant’s brief also contains the requisite Rule
2119(f) concise statement. We must now decide whether Appellant’s
challenge to the discretionary aspects of his sentence raises a substantial
question.
“A substantial question will be found where an appellant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.
2015) (citation omitted). “[W]e cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Christine, 78
A.3d 1, 10 (Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015) (citation
omitted).
Appellant alleges in his Rule 2119(f) statement that the trial court
inappropriately focused on his prior record score when it imposed his
sentence. Anders Brief at 10. What Appellant argues in his brief, however,
is that the sentence imposed was “inappropriately harsh and excessive and
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an abuse of discretion.” Id. This claim fails to raise a substantial question as
to the appropriateness of Appellant’s sentence. See Commonwealth v.
Fisher, 47 A.3d 155, 159 (Pa. Super. 2012) (“[A] bald assertion that a
sentence is excessive does not by itself raise a substantial question justifying
this Court's review of the merits of the underlying claim.”); Commonwealth
v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004) (defendant did not raise
substantial question by merely asserting sentence was excessive when he
failed to reference any section of Sentencing Code potentially violated by
sentence). To the extent that Appellant alternatively claims that his sentence
was excessive because the trial court failed to adequately consider his
“particular circumstance,” this claim also does not raise a substantial
question for our review. See Commonwealth v. Dodge, 77 A.3d 1263,
1272 n.8 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014)
(“Careful litigants should note that arguments that the sentencing court
failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a
substantial question whereas a statement that the court failed to consider
facts of record, though necessarily encompassing the factors of § 9721, has
been rejected.”).
Counsel concedes in the Anders brief that the trial court imposed a
standard range sentence. Anders Brief at 10. “[W]here a sentence is within
the standard range of the guidelines, Pennsylvania law views the sentence
as appropriate under the Sentencing Code.” Moury, 992 A.2d at 171
(internal citations omitted). Moreover, where, as here, the trial court has the
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benefit of a pre-sentence investigation report, “we can assume the
sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Id. at 171 (internal citations omitted). Thus,
Appellant has not only failed to raise a substantial question for our review,
but his arguments are also unsupported by the evidence of record. We
therefore find no abuse of discretion in the trial court’s imposition of
sentence.
After examining the issues contained in the Anders brief and after
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Motion to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2016
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Com. v. Clowney, D.
Combined Opinion