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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GARY L. MACHINSHOK,
Appellant No. 2143 MDA 2015
Appeal from the Judgment of Sentence July 9, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000451-2014, CP-40-CR-0000459-
2014
BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 26, 2016
Appellant, Gary L. Machinshok, appeals from the judgment of sentence
entered on July 9, 2015, in the Luzerne County Court of Common Pleas.
Appellate counsel has filed a petition seeking to withdraw his representation
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern
withdrawal from representation on direct appeal. After careful review, we
grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
The trial court summarized the factual and procedural history of this
case as follows:
This matter is presently before the [c]ourt on [Appellant’s]
appeal of his sentence following the entry of no contest pleas in
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[two] cases to Rape, Statutory Sexual Assault, Indecent Assault
and related charges.1 The [c]ourt accepted [Appellant’s] no
contest pleas at a hearing on August 4, 2014. A Pre-Sentence
Investigation (PSI) was ordered to be completed by the Luzerne
County Adult Probation and Parole Department, and a sentencing
hearing was scheduled. Prior to sentencing, the Pennsylvania
Sexual Offenders Assessment Board completed an assessment
and evaluation of [Appellant], and determined that he meets the
criteria of a sexually violent predator.
1
In the case docketed at 459 of 2014 [Appellant]
plead no contest to F-1 Rape, 18 § 3121(a)(2); F-2
Statutory Sexual Assault, 18 § 3122.1; F-2 Sexual
Assault, 18 § 3124.1; F-2 Aggravated Indecent
Assault, 18 § 3125(a)(3); F-2 Aggravated Indecent
Assault (victim less than 16), 18 § 3125(a)(8); F-3
Endangering the Welfare of Children, 18
§ 4304(a)(1); M-1 Indecent Assault, 18
§ 3126(a)(3), M-2 Indecent Assault (w/o consent),
18 § 3126(a)(1); M-2 Indecent Assault (Person less
than 16) 18 § 3126(a)(8) and F-3 Corruption of
Minors, 18 § 6301(a)(1)(ii). In the case docketed at
451 of 2014 [Appellant] plead no contest to F-3
Indecent Assault (Person Less than 13), 18
§ 3126(a)(7), F-3 Endangering the Welfare of
Children, 18 § 4304(a)(1); F-3 Corruption of Minors,
18 § 6301(a)(1)(ii) and F-3 Criminal Attempt
(Indecent Assault – person less than 13 years of
age).
On July 9, 2015, [Appellant] appeared before the [c]ourt
for sentencing. At the time of [Appellant’s] Sentencing, the
[c]ourt heard evidence relative to [Appellant’s] status as a
sexually violent predator pursuant to 42 Pa.C.S. § 9799.24.
After having heard the testimony of Paula Brust, who is
employed by the Pennsylvania Sexual Offender’s Board (SOAB),
and who prepared the SOAB report relative to these cases, we
determined that [Appellant] was a sexually violent predator.
Upon a review of the PSI and upon consideration of the
submissions made by [Appellant] and counsel at the sentencing
hearing, we determined that a sentence within the standard
range of the applicable sentencing guidelines was appropriate.
Accordingly, [Appellant] was sentenced to an aggregate term of
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incarceration of one hundred and sixty two (162) months to
three hundred and twenty four (324) months in a state
correctional institution. [Appellant] was subsequently advised of
his sexual offender registration notification requirements, as well
as his post-sentence rights, and was remanded.
On July 20, 2015, [Appellant] through his counsel, filed a
Motion to Modify Sentence[1] which we denied by Order dated
August 28, 2015. A Notice of Appeal was filed on September 22,
2015, and on September 24, 2015, we ordered [Appellant] to file
a Concise Statement of Errors Complained of on Appeal pursuant
to Pa.R.A.P. 1925(b) and requested the Commonwealth to
respond thereto.
A Motion to Extend Time for Filing of Concise Statement
was filed with this [c]ourt on October 15, 2015. We granted
counsel’s motion on October 16, 2015. Trial counsel thereafter
filed a Petition to Withdraw contemporaneously with a Motion for
Appointment of Appellate Counsel. Matthew P. Kelly, Esquire,
Luzerne County Conflict Counsel, was subsequently appointed to
represent [Appellant] in the instant appeal. A second Motion to
Extend Time for Filing of Concise Statement was filed with this
[c]ourt on November 2, 2015. We granted counsel’s motion that
same day and accepted the Concise Statement filed by Attorney
Kelly on November 18, 2015, as timely filed.
Trial Court Opinion, 12/2/15, at 1-3.
Before we address the issue that Appellant’s counsel raised on appeal,
we must resolve appellate counsel’s request to withdraw. Commonwealth
v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are
procedural and briefing requirements imposed upon an attorney who seeks
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1
We note that because July 19, 2015 fell on a Sunday, Appellant had until
July 20, 2015, to file his motion. See 1 Pa.C.S. § 1908 (stating that, for
computations of time, whenever the last day of any such period shall fall on
Saturday or Sunday, or a legal holiday, such day shall be omitted from the
computation); Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super.
2004).
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to withdraw on direct appeal. The procedural mandates are that 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 (citation omitted).
In this case, counsel has satisfied those directives. Within his petition
to withdraw, counsel averred that after making a conscientious examination
of the record, he concluded that the present appeal is wholly frivolous.
Counsel sent Appellant a copy of the Anders brief and the petition to
withdraw, as well as a letter advising Appellant that he could represent
himself or retain private counsel to represent him. A copy of that letter was
attached to counsel’s petition to withdraw.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide 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 have led to the conclusion that the appeal is
frivolous.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
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We are satisfied that counsel has met the requirements set forth in
Santiago. Counsel’s brief sets forth the factual and procedural history of
this case, cites to the record, and refers to an issue that counsel arguably
believes supports the appeal. Anders Brief at 1-5. Further, the brief
includes counsel’s conclusion that the appeal is frivolous, and it contains
pertinent case authority and counsel’s reasons for concluding that the appeal
is frivolous. Id. at 6-8. Accordingly, we address the following issue raised
in the Anders brief:
Whether the trial court abused its discretion in sentencing the
Appellant.
Anders Brief at 1.
In the argument portion of the Anders brief, counsel asserts that the
trial court abused its discretion in failing to consider the sentencing
guidelines and in imposing an unreasonable sentence that is excessive under
the circumstances. Anders Brief at 6. Specifically, counsel argues that the
trial court failed to consider Appellant’s age, family history, education,
employment history, remorse, and cooperation with the Commonwealth. Id.
at 6-7. Thus, counsel is purporting to present a challenge to the
discretionary aspects of Appellant’s sentence.
We note that “[t]he right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107
A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
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petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e 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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)). The determination of whether there is a substantial question
is made on a case-by-case basis, and this Court will grant the appeal 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. Commonwealth v. Sierra, 752 A.2d 910, 912–
913 (Pa. Super. 2000).
Herein, the first three requirements of the four-part test are met:
Appellant filed a timely appeal, raised the challenges in a post-sentence
motion, and included in his Anders brief the necessary separate concise
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statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886–887 (Pa. Super. 2008). Here, counsel argues in the
Pa.R.A.P. 2119(f) statement that the trial court abused its discretion by
failing to consider Appellant’s age, family history, education, employment
history, remorse, and cooperation. Anders Brief at 3.
“This Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013) (citations omitted); see also Commonwealth v. Downing, 990
A.2d 788, 794 (Pa. Super. 2010) (concluding that a claim that the trial court
abused its discretion in failing to adequately consider certain mitigating
factors did not raise a substantial question for this Court’s review).
Accordingly, we cannot conclude that Appellant has raised a substantial
question.
Even if Appellant had raised a substantial question, he still would not
have obtained relief because the trial court here had the benefit of a
presentence investigation (“PSI”) report. “Where the sentencing court had
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the benefit of a [PSI], 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.” Moury, 992 A.2d at
171 (internal quotation marks omitted); see also Commonwealth v.
Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (“Since the sentencing court
had and considered a [PSI], this fact alone was adequate to support the
sentence, and due to the court’s explicit reliance on that report, we are
required to presume that the court properly weighed the mitigating factors
present in the case.”).
Here, at sentencing the trial court explicitly stated:
Having reviewed the presentence investigation report, and all of
the letters and statements submitted, all of the testimony
presented here today, as well as the various arguments of
counsel. Again, reviewing the PSI. In imposing sentence the
[c]ourt does note the obvious nature of these offenses. The
impact that these offenses have, and will continue to have upon
the victims in these matters. [Appellant] was in a position that
should have been a position of trust with these young ladies and
he violated that trust in the acts to which he pled no contest.
Based upon all that, and so as not to diminish the serious
nature of the offenses, the [c]ourt, again noting the horrific
nature of the offenses that were perpetrated on multiple victims,
we’ll sentence [Appellant] to a substantial period of
incarceration. The sentences the [c]ourt is going to impose will
all be within the standard ranges of the applicable sentencing
guidelines.
Sentencing Transcript, 10/28/15, at 45-46. Accordingly, Appellant’s
argument that the trial court failed to consider mitigating evidence would
fail. See Moury, 992 A.2d at 171; Fowler, 893 A.2d at 766.
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Finally, we have independently reviewed the record in order to
determine whether there are any non-frivolous issues present in this case
and have found none. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.
Super. 2014). Having concluded that there are no meritorious issues, we
grant Appellant’s counsel permission to withdraw and affirm the judgment of
sentence.
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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