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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CARL A. ROTH, : No. 999 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 25, 2016,
in the Court of Common Pleas of Luzerne County
Criminal Division at Nos. CP-40-CR-0001656-2015,
CP-40-CR-0003079-2014
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 09, 2017
Carl A. Roth appeals from the judgment of sentence of May 25, 2016,
following his guilty plea to theft by unlawful taking and various sex offenses.
Appointed counsel, Matthew P. Kelly, Esq., has filed a petition to withdraw
and accompanying Anders brief.1 After careful review, we grant the petition
and affirm the judgment of sentence.
On February 9, 2016, appellant entered an open guilty plea to one
count of theft by unlawful taking2 at case number CP-40-CR-0003079-2014.
* Former Justice specially assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
2
18 Pa.C.S.A. § 3921(a).
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It was alleged that on August 4, 2014, appellant stole a large amount of
cash and coins from 314 Centre Street in Freeland. The residence was
owned by Robert Kufro.
At case number CP-40-CR-0001656-2015, appellant pled guilty to one
count each of involuntary deviate sexual intercourse (“IDSI”) -- child under
13 years of age, criminal attempt to commit rape of a child, indecent assault
-- person less than 13 years of age, and corruption of minors. 3 These
charges related to appellant’s sexual abuse of the 6-year-old victim, A.L.M.,
on multiple occasions during the summer of 2014.
Appellant appeared for sentencing on May 25, 2016. Appellant
received an aggregate sentence of 16 to 32 years’ imprisonment, followed
by 5 years of probation.4 Appellant was also to make restitution to Mr. Kufro
in the amount of $36,822, jointly and severally with his co-defendants on
the theft charge, Ian Nauman and Jeffrey Wilkinson.
Appellant did not file any post-sentence motions; however, a timely
notice of appeal was filed on June 7, 2016. On June 8, 2016, appellant was
ordered to file a concise statement of errors complained of on appeal within
3
18 Pa.C.S.A. §§ 3123(b), 901(a), 3126(a)(7), & 6301(a)(1)(i),
respectively.
4
Appellant received consecutive sentences of 10 to 20 years for IDSI and
6 to 12 years for criminal attempt to commit rape of a child. Appellant’s
sentences of 9 to 18 months for indecent assault and 3 to 6 months for
corruption of minors were to run concurrently with his sentences on the
other charges. Appellant also received a consecutive sentence of 5 years of
probation on the theft charge.
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21 days pursuant to Pa.R.A.P. 1925(b). By order filed June 9, 2016, new
counsel, Attorney Kelly, was appointed to represent appellant on the appeal.
On June 22, 2016, appellant filed a Rule 1925(b) statement, raising one
issue for appeal, to-wit, “Whether the trial court abused its discretion in
sentencing the Defendant[?]” The Commonwealth filed its response on
July 7, 2016; and on August 3, 2016, the trial court filed a Rule 1925(a)
opinion.
Counsel having filed a petition to withdraw, we reiterate that “[w]hen
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), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and 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
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record, controlling case law, and/or
statutes on point that have led to the
conclusion that the appeal is frivolous.
Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we find that Attorney Kelly has complied with all of the
above requirements. In addition, Attorney Kelly served appellant with a
copy of the Anders brief and advised him of his right to proceed pro se or
hire a private attorney to raise any additional points he deemed worthy of
this court’s review. Appellant has not responded to counsel’s motion to
withdraw. As we find the requirements of Anders and Santiago are met,
we will proceed to the issues on appeal.
Appellant challenges the discretionary aspects of his sentence;
however, as set forth above, he did not file a post-sentence motion. “We
have held that an objection to a discretionary aspect of a sentence is clearly
waived if it was neither raised at the sentencing hearing nor raised in a
motion to modify the sentence imposed at that hearing.” Commonwealth
v. Jones, 858 A.2d 1198, 1204 (Pa.Super. 2004) (internal quotation marks
and citations omitted); Commonwealth v. Reeves, 778 A.2d 691, 692
(Pa.Super. 2001) (“[I]ssues challenging the discretionary aspects of
sentencing must be raised in a post-sentence motion or by raising the claim
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” (citation omitted)); see also
Pa.R.Crim.P 720. After reviewing the sentencing transcript and certified
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record in this case, we find that no objections were made at sentencing, and
appellant did not file a post-sentence motion.
However, pursuant to Pa.R.Crim.P. 704, the trial court has a duty to
accurately advise a defendant of his post-sentencing and appeal rights.5
5
(3) The judge shall determine on the record that
the defendant has been advised of the
following:
(a) of the right to file a post-sentence
motion and to appeal, of the time
within which the defendant must
exercise those rights, and of the
right to assistance of counsel in the
preparation of the motion and
appeal[.]
Pa.R.Crim.P. 704(C)(3)(a).
The rule is intended to promote prompt and fair
sentencing procedures by providing reasonable time
limits for those procedures, and by requiring that the
defendant be fully informed of his or her
post-sentence rights and the procedural
requirements which must be met to preserve those
rights.
Id., Comment.
The judge should explain to the defendant, as clearly
as possible, the timing requirements for making and
deciding a post-sentence motion under Rule 720.
The judge should also explain that the defendant
may choose whether to file a post-sentence motion
and appeal after the decision on the motion, or to
pursue an appeal without first filing a post-sentence
motion.
Paragraph (C)(3) requires the judge to ensure the
defendant is advised of his or her rights concerning
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Here, the trial court wrongly implied that appellant could raise a
discretionary sentencing challenge without first filing a post-sentence
motion:
Mr. Roth, if you don’t agree with my sentence you
have two ways to appeal my sentence. The first is
within ten days of today’s date you file a written
notice asking me to reconsider the sentence. I am
telling you right now I am not going to reconsider it,
I will deny that. Once I deny that you have 30 days
from that date to file a written appeal to Superior
Court. Or you can bypass me directly and file a
written appeal to the Superior Court within
30 days of today’s date challenging your
sentencing. Do you understand your appellate
rights?
THE DEFENDANT: Yes.
Notes of testimony, 5/25/16 at 19-20 (emphasis added). Of course, this
was an incorrect statement of the law insofar as it implies that appellant can
elect to “bypass” the trial court and file a timely direct appeal challenging
the discretionary aspects of his sentence. Any such challenge would be
deemed waived for failure to raise it in the court below. Therefore, we
decline to find waiver on this basis. See Commonwealth v. Patterson,
940 A.2d 493, 498-499 (Pa.Super. 2007), appeal denied, 960 A.2d 838
(Pa. 2008) (“The courts of this Commonwealth have held that a court
post-sentence motions and appeal, and the right to
proceed with counsel. See, e.g., Commonwealth v.
Librizzi, 810 A.2d 692 (Pa.Super. 2002).
Id.
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breakdown occurred in instances where the trial court, at the time of
sentencing, either failed to advise Appellant of his post-sentence and
appellate rights or misadvised him.” (citations omitted)).
In its Rule 1925(a) opinion, the trial court found that appellant waived
his sentencing challenge because of the exceedingly vague nature of his Rule
1925(b) statement. (Trial court opinion, 8/3/16 at 2.) Appellant simply
alleged that the trial court abused its discretion, without specifying how,
why, or in what manner the court abused its discretion in sentencing
appellant. (Id.) See Commonwealth v. Smith, 955 A.2d 391, 393
(Pa.Super. 2008) (en banc) (“[W]hen issues are too vague for the trial
court to identify and address, that is the functional equivalent of no concise
statement at all.” (citations omitted)).
Nevertheless, we will briefly address the merits of the issue because
appointed counsel has filed an Anders brief and a petition to withdraw. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (addressing
the appellant’s discretionary sentencing challenge in light of counsel’s
petition to withdraw, despite the fact that his Pa.R.A.P. 2119(f) statement
failed to cite what particular provision of the Sentencing Code or what
specific fundamental norm the appellant’s sentence allegedly violated), citing
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001)
(concluding that Anders requires review of issues otherwise waived on
appeal). So, in Hernandez, for example, this court addressed the merits of
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the appellant’s discretionary aspects of sentencing challenge even though
counsel failed to comply with the trial court’s Rule 1925 order. Hernandez,
783 A.2d at 787 (“Anders requires that we examine the issues to determine
their merit.” (emphasis in original)). This was true even though at the time
Hernandez was decided, a failure to timely comply with Rule 1925(b)
resulted in automatic waiver. Commonwealth v. Castillo, 888 A.2d 775
(Pa. 2005); Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a
matter of right. Commonwealth v. Hunter, 768
A.2d 1136 (Pa.Super. 2001)[,] appeal denied, 568
Pa. 695, 796 A.2d 979 (2001). When challenging
the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement
demonstrating that there is a substantial question as
to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Commonwealth v.
Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987);
42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The
requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal
‘furthers the purpose evident in the Sentencing Code
as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors
impinging on the sentencing decision to exceptional
cases.’” Commonwealth v. Williams, 386
Pa.Super. 322, 562 A.2d 1385, 1387 (1989)
(en banc) (emphasis in original).
Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).
Instantly, appellant has complied with Rule 2119(f) by including the
requisite statement in his brief. (Appellant’s brief at 3.) However, we find
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that appellant does not raise a substantial question for our review.
Appellant entered an open guilty plea and received a guideline sentence.
Appellant falls well short of raising a “substantial question” for our review
with respect to the trial court’s exercise of its sentencing discretion. There is
simply nothing to review here.
Appellant acknowledges that his sentences fell within the standard
range of the sentencing guidelines. See Commonwealth v. Maneval, 688
A.2d 1198, 1199-1200 (Pa.Super. 1997) (“Generally, if the sentence
imposed falls within the sentencing guidelines, no substantial question
exists.”), citing Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.Super.
1995). In addition, the court had the benefit of a PSI report. (Notes of
testimony, 5/25/16 at 2.) “Our Supreme Court has ruled that where
pre-sentence reports exist, the presumption will stand that the sentencing
judge was both aware of and appropriately weighed all relevant information
contained therein.” Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super.
2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S.
1148 (2005), citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988). To the extent that appellant argues the trial court abused its
discretion in making two of his sentences consecutive, he does not raise a
substantial question for this court’s review either. “In imposing a sentence,
the trial judge may determine whether, given the facts of a particular case, a
sentence should run consecutive to or concurrent with another sentence
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being imposed.” Commonwealth v. Perry, 883 A.2d 599, 603 (Pa.Super.
2005) (citations omitted).
Even if this court were to proceed to review the merits of appellant’s
claim, we would find no abuse of discretion where the trial court set forth
the reasons for its sentence, including the fact that appellant, the victim’s
mother’s ex-boyfriend, was a father figure to the victim. (Notes of
testimony, 5/25/16 at 16.) The victim called appellant “daddy,” and he used
that position of trust to manipulate and abuse her. (Id. at 3.) Appellant
demonstrated lack of remorse and blamed the 6-year-old victim for the
abuse, telling investigators that she wanted him to touch her private parts.
(Id. at 15.) Even appellant’s own psychiatric expert concluded that he was
a sexually violent predator. (Id. at 13, 16.) The trial court heard testimony
regarding appellant’s difficult upbringing, including the fact that he was
sexually abused as a child, but concluded that appellant was a danger to
society and in need of extensive psychiatric treatment. (Id. at 11, 16.) The
sentencing judge did grant appellant’s request that he recommend
placement at SCI-Waymart’s mental health facility. (Id. at 14, 24.) There
is no merit here.
For the reasons discussed above, we determine that appellant’s issue
on appeal is wholly frivolous and without merit. Furthermore, after our own
independent review of the record, we are unable to discern any additional
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issues of arguable merit. Therefore, we will grant Attorney Kelly’s petition to
withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2017
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