J-S68016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN SCOTT ELLIS JR.
Appellant No. 1846 WDA 2015
Appeal from the Judgment of Sentence dated October 20, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000649-2015
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN ELLIS
Appellant No. 1847 WDA 2015
Appeal from the Judgment of Sentence dated October 20, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000651-2015
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN ELLIS
Appellant No. 1848 WDA 2015
Appeal from the Judgment of Sentence dated October 20, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000653-2015
J-S68016-16
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN ELLIS
Appellant No. 1849 WDA 2015
Appeal from the Judgment of Sentence dated October 20, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000693-2015
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN SCOTT ELLIS JR.
Appellant No. 1850 WDA 2015
Appeal from the Judgment of Sentence dated October 20, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000758-2015
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN SCOTT ELLIS JR.
Appellant No. 1851 WDA 2015
Appeal from the Judgment of Sentence dated October 23, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000760-2015
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COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN ELLIS
Appellant No. 1852 WDA 2015
Appeal from the Judgment of Sentence dated October 20, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000767-2015
BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 14, 2016
Appellant, Brian Scott Ellis, Jr., appeals from the judgment of sentence
of 7-21 years’ incarceration, which was imposed after he pleaded guilty to
criminal trespass, theft by unlawful taking, burglary, criminal conspiracy to
commit burglary, and receiving stolen property.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. § 3503(a)(1)(i), 18 Pa.C.S. § 3921(a), 18 Pa.C.S. § 3502(a)(2),
18 Pa.C.S. § 903(c), 18 Pa.C.S. § 3925(a), respectively.
2
Anders v. California, 386 U.S. 738 (1967).
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In August and November 2014, Appellant entered two private
residences in Erie and stole items from each house that were valued at
between $2,500 and $3,000. N.T., 9/8/15, at 11, 14; N.T. 10/20/15, at 25,
27. Later in November, he conspired with two other individuals to burglarize
and steal items from a third house; the stolen items from this house were
valued at $12,800. N.T., 9/8/15, at 13; N.T. 10/20/15, at 26. He entered
two more houses in December; the stolen items from one of these houses
were valued at $3,239.40. N.T., 9/8/15, at 12, 15; N.T. 10/20/15, at 25.3
Appellant entered another house in January 2015 and stole property there
that was valued at between $500 and $1,000. N.T., 9/8/15, at 16-17; N.T.,
10/20/15, at 27. Also in December, he received property that he knew was
likely stolen. N.T., 9/8/15, at 16.4
On September 8, 2015, Appellant appeared before the trial court and
entered a guilty plea to each of these charges. On October 20, 2015, the
trial court held a sentencing hearing, during which Appellant’s trial counsel
explained, by way of mitigation, that, although Appellant was only 20 years
old, he already had “a very pervasive heroin addiction.” N.T., 10/20/15, at
10. Appellant’s sister confirmed Appellant’s long history of drug addiction
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3
The value of the stolen items from the second house was not entered on
the record. N.T., 10/20/15, at 27.
4
The total value of the stolen property that Appellant received was not
entered on the record. N.T., 10/20/15, at 27.
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and explained that members of their entire family including their parents,
have battled addiction. Id. at 12-16. Appellant’s sister added that their
mother “is on her death bed” and that their grandparents are elderly and
have always tried to help Appellant and her. Id. at 13, 16.
One victim provided impact testimony, stating that “[s]ince [she]
live[s] alone it was all the more devastating” to have her home burglarized,
and that Appellant stole “precious family heirlooms that [she] can never
replace coming from [her] great-grandmother.” N.T., 10/20/15, at 6. This
victim said she felt violated and constantly thought about how anybody
could break into her home; her sense of safety had been compromised. Id.
at 7. During her testimony, she repeatedly asked the trial court to impose
the maximum sentence allowable.
At the end of the sentencing hearing, the trial court imposed an
aggregate sentence of 9-23 years’ incarceration. The trial court explained
its reasoning for imposing this sentence on the record, as follows:
In this case I’ve done the following: I’ve considered the
Pennsylvania Sentencing Code and its various factors. I’ve got
the benefit of a presentence report. I have a victim impact
statement. I have letters from [Appellant] and accompanying
documents, and I’ve talked to the parties here today as well as
the family, and the one victim spoke.
I’ve already spoke at length about my view of burglary.[5] It
literally can destroy communities. And [Appellant] here is part
____________________________________________
5
Earlier during the sentencing hearing, the trial court had stated:
(Footnote Continued Next Page)
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of a sophisticated ring that was stealing from houses in a
planned and calculated manner for his and other people’s
purposes to get money for drugs. Heedless then, although not
now, of the consequences here. This sentence is going to hurt
his family, but it’s required.
The balance here on this sentence is not to give [Appellant] a
sentence so long that he never gets out of prison. The
Guidelines probably allow that. Nevertheless, a substantial
sentence is required and there is no bargain discount for doing
multiple burglaries.
N.T., 10/20/16, at 30-31. On October 23, 2015, the court filed a written
order correcting the sentence on two counts, resulting in a final aggregate
sentence of 7-21 years’ incarceration.
On November 23, 2015, Appellant filed this timely direct appeal. On
December 17, 2015, Appellant’s trial counsel, Attorney Horton, filed a
“Statement of Intent to File an Anders Brief.” On December 18, 2015, the
trial court entered an order stating that, in light of Attorney Horton’s
Statement of Intent to File an Anders Brief, “there are no non-frivolous
issues for appeal” and “no Opinion is necessary.” On February 1, 2016,
_______________________
(Footnote Continued)
[W]hen [people] find out they have been burglarized, they will
have a monetary loss, sure. Sometimes they have insurance.
But beyond that, you violate their sense of security. . . . And
that upsets them. A burglary can upset a neighborhood.
Enough burglaries on a block can upset whole parts of the
community. People move. They no longer sleep at night. They
sometimes buy burglary alarms. Far beyond the property
damage, far beyond the property damage, every burglary . . .
involves the destruction of a community.
N.T., 10/20/15, at 7-8.
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Attorney Horton filed a petition for leave to withdraw as counsel. On
February 2, 2016, this Court granted Attorney Horton leave to withdraw and
appointed new appellate counsel, Attorney Merski. Order, 2/2/16.
Attorney Merski filed an Anders Brief on June 13, 2016, in which she
presented the following issue:
Whether the Appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Sentencing Code?
Anders Brief, at 3. On the same day, Attorney Merski sent a letter to
Appellant, informing him that she intended to file a petition for leave to
withdraw. She filed her petition to withdraw on June 22, 2016, and
Appellant has not filed a pro se response to that petition. On June 23, 2016,
the Commonwealth sent a letter to this Court stating that it did not intend to
file a responsive brief.
“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) (internal citation omitted). An Anders brief shall comply with the
requirements set forth by the Supreme Court of Pennsylvania 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
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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.
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
meet the following obligations to his or her client:
Counsel must also 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 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)). Finally,
“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)
(footnotes and citations omitted).
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In this appeal, we observe that Attorney Merski’s June 13, 2016
correspondence to Appellant provided a copy of the Anders Brief to
Appellant and advised Appellant of his right either to retain new counsel or
to proceed pro se on appeal to raise any points he deems worthy of the
court’s attention. Further, the Anders Brief complies with prevailing law in
that counsel has provided a procedural and factual summary of the case with
references to the record. Counsel additionally advances relevant portions of
the record that could arguably support Appellant’s claims on appeal.
Ultimately, counsel cites her reasons and conclusion that Appellant’s “case
presents no non-frivolous issues for review.” Anders Brief, at 12. We
therefore conclude that counsel’s Anders brief complies with the
requirements set forth in Santiago. As a result, we proceed to conduct an
independent review to ascertain if the appeal is indeed wholly frivolous.
We recognize, as did counsel, that “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
A.3d 606, 609 (Pa. Super. 2013) (internal citation omitted), appeal denied,
87 A.3d 319 (Pa. 2014); see also Anders Brief, at 6. Appellant has not
challenged the validity of his guilty plea, and the oral colloquy conducted by
the trial court at the time of Appellant’s plea was sufficient to assure that the
plea was properly made. See N.T., 9/8/15, at 3-17.
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Appellant challenges only a discretionary aspect of his sentence — its
length. “Challenges to the discretionary aspects of sentencing do not entitle
an appellant to an appeal as of right.” Commonwealth v. Glass, 50 A.3d
720, 726 (Pa. Super. 2012). Instead, this Court has set forth an analytical
framework under which we determine whether we may exercise our
discretion to hear such an appeal:
Before we reach the merits of this issue, we must engage in a
four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. . . . [I]f the appeal
satisfies each of these four requirements, we will then proceed to
decide the substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–1043 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015). The determination of what
constitutes a substantial question must be evaluated on a case-by-case
basis. Glass, 50 A.3d at 727.
In the current case, Appellant filed a timely notice of appeal and
properly preserved this issue in his post-sentence motion. Additionally, the
Anders brief contains a concise statement of the reasons for which he seeks
allowance of an appeal, in compliance with Rule 2119(f) of the Rules of
Appellate Procedure. See Anders Brief, at 5-9. The Rule 2119(f) statement
sets forth the claim that the sentencing court sentenced within the
guidelines but failed to consider the factors set forth in 42 Pa.C.S. §
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9721(b). Section 9721(b) requires the sentencing court to “follow the
general principle that 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.” Appellant’s argument therefore
raises a substantial question. See Commonwealth v. Buterbaugh, 91
A.3d 1247, 1266 (Pa. Super. 2014) ( “[a]rguments that the sentencing court
failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a
substantial question”; quotations and citation omitted), appeal denied, 104
A.3d 1 (Pa. 2014). Hence, we will consider the substantive merits of his
sentencing claim.
Our standard of review is as follows:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014),
reargument denied (2015), appeal denied, 117 A.3d 297 (Pa. 2015)
(citation omitted). “A sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the
statute in question, but the record as a whole must reflect the sentencing
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court's consideration of the facts of the crime and character of the offender.”
Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012).
As the record demonstrates, prior to imposing sentence, the trial court
explained that Appellant was “part of a sophisticated ring that was stealing
from houses in a planned and calculated manner,” N.T., 10/20/15, at 31.6
The court therefore clearly considered the need to protect the public, the
gravity of the offenses, and the specific facts of Appellant’s crimes. See 42
Pa.C.S. § 9721(b); Schutzues, 54 A.3d at 96.
The trial court also stated that it evaluated the victim impact
statement and victim testimony during the sentencing hearing. N.T.,
10/20/15, at 30-31. The court stated in this regard that burglary “literally
can destroy communities.” Id. at 31. The trial court therefore kept in mind
the impact on the victim and the community. See 42 Pa.C.S. § 9721(b).
Finally, the trial court considered the testimony of Appellant’s sister,
N.T., 10/20/15, at 31, who attested to his rehabilitative needs, id. at 12-17.
The trial court therefore considered this factor. See 42 Pa.C.S. § 9721(b).
Accordingly, the trial court properly reviewed all of the requisite
factors and did not abuse its discretion when imposing Appellant’s sentence.
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6
Because Appellant pleaded guilty, no additional details about the
“sophisticated burglary ring” were entered on the record, but the charges
made clear that he burglarized homes as part of a conspiracy with others.
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Consequently, Appellant’s sentence is not manifestly excessive or
unreasonable.
Based on the foregoing, we agree with appellate counsel that the
sentencing issue raised by Appellant lacks merit. In addition, we have
reviewed the certified record consistent with Flowers, 113 A.3d at 1250,
and have discovered no additional arguably meritorious issues. Accordingly,
we grant appellate counsel’s petition to withdraw and affirm the trial court’s
judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2016
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