J-S14016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES EDWARD BORTZ,
Appellant No. 1262 MDA 2016
Appeal from the Judgment of Sentence July 14, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000617-2006
BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 12, 2017
Appellant, James Edward Bortz, appeals from the judgment of
sentence entered on July 14, 2016, following the revocation of his probation.
Appellate counsel has filed a petition 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 review, we grant
counsel’s petition to withdraw, and we affirm the judgment of sentence.
The relevant facts of this case were set forth by the trial court as
follows:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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On May 8, 2006, Appellant James Bortz pled guilty to
statutory sexual assault, a felony of the second degree, and
corruption of minors, a misdemeanor of the first degree. On July
5, 2006, the Honorable William S. Kieser sentenced [Appellant]
to 8 months to 10 years’ incarceration in a state correctional
facility for statutory sexual assault[1] and a consecutive term of
two years’ probation for corruption of minors.[2] The focus at the
sentencing hearing was getting [Appellant] sexual offender
treatment, which he could receive in a state correctional facility
but would not receive in the county prison. Unfortunately,
[Appellant] failed or refused to complete sexual offender
treatment, and he “maxed out” his state sentence.
On July 14, 2016, [Appellant] came before the court for a
probation violation hearing based on his failure to be processed
into and complete a sexual offender treatment program. There
was no dispute that [Appellant] did not complete the sexual
offender treatment program while he was incarcerated in state
prison or that he was not currently enrolled in such
programming.
[Appellant’s] counsel argued that his probation should not
be revoked based on his failure to complete the treatment,
especially since he already served 10 years in state prison as a
result of that failure. Counsel also noted that, as a sexually
violent predator,1 [Appellant] was required to complete monthly
counseling. If he failed to complete his counseling while he was
out on the street, not only would he be in violation of his
probation, but he would also be subject to further criminal
prosecution and face an additional 2½ to 5 years’ incarceration.
1
[Appellant] was designated a sexually violent
predator in a separate case, CP-41-CR-1906-2003.
[Appellant’s] probation officer, Loretta Clark, noted that
[Appellant] did not have a residence to be released to and he
chose to max out his state prison sentence instead of attending
any of the programs. Ms. Clark also noted that she did not think
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1
18 Pa.C.S. § 3122.1(a).
2
18 Pa.C.S. § 6301(a)(1).
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[Appellant] would comply with any kind of counseling out on the
street since he had the option to be released from jail years ago
if he complied but he still chose not to do so.
[Appellant] stated that he had a place at the American
Rescue Workers and he asked to be given a second chance to try
to do the individual counseling on his own. Ms. Clark, however,
noted that the American Rescue Workers do not take sexually
violent predators.
The court found [Appellant] in violation of his probation
and re-sentenced him to serve 6 months to 2 years’
incarceration in a state correctional institution. [Appellant] filed a
motion for reconsideration of sentence, which the court
summarily denied.
Trial Court Opinion, 11/8/16, at 1-2.
Appellant filed a timely appeal on July 28, 2016, and on August 4,
2016, the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a
timely Pa.R.A.P. 1925(b) statement on August 17, 2016, and on November
8, 2016, the trial court filed its Pa.R.A.P. 1925(a) opinion.
Before we address the questions raised on appeal, we must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc); Commonwealth v. Rojas, 874
A.2d 638, 639 (Pa. Super. 2005) (“When faced with a purported Anders
brief, this Court may not review the merits of the underlying issues without
first passing on the request to withdraw.”).
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There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on 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 [his client]; and 3) advise [his client] that he or
she has the right to retain private counsel or raise additional
arguments that the [client] deems worthy of the court’s
attention.
Cartrette, 83 A.3d at 1032 (citation omitted).
In addition, our Supreme Court stated that an Anders brief 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. The Supreme Court reaffirmed the principle
that indigent appellants “generally have a right to counsel on a first appeal,
[but] . . . this right does not include the right to bring a frivolous appeal and,
concomitantly, does not include the right to counsel for bringing such an
appeal.” Id. at 357 (citation omitted).
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Appellant’s counsel has complied with the first prong of Santiago by
providing a summary of the procedural history in the Anders brief. He has
satisfied the second prong by referring to any evidence in the record that he
believes arguably supports the appeal. Counsel also set forth his conclusion
that the appeal is frivolous and stated his reasons for that conclusion, with
appropriate support. Moreover, counsel filed a separate motion to withdraw
as counsel, wherein he stated that he examined the record and concluded
that the appeal is wholly frivolous. Further, counsel has attempted to
identify and develop any issues in support of Appellant’s appeal.
Additionally, counsel sent a letter to Appellant, and he attached a copy of
the letter to his Anders Brief. Counsel stated that he informed Appellant
that he has filed a motion to withdraw and an Anders brief, and he apprised
Appellant of his rights in light of the motion to withdraw as counsel.
Appellant has not filed any response to counsel’s motion to withdraw. Thus,
we conclude that the procedural and briefing requirements of Anders and
Santiago for withdrawal have been met. “Therefore, we now have the
responsibility to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016)
(citation and internal quotation marks omitted).
In the Anders brief, counsel presents the following issues for our
review:
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I. Whether an application to withdraw as counsel should be
granted where counsel has investigated the possible grounds for
appeal and finds the appeal frivolous?
II. Did the trial court abuse its discretion when it denied
[Appellant’s] motion for a reconsideration of his probation
violation sentence when it failed to take into consideration
[Appellant’s] rehabilitative needs, since [Appellant] had already
served a ten year sentence and would be unable to complete the
sexual offender rehabilitation program if he returned to state
prison?
Anders Brief at 10. Appellant’s first issue concerns counsel’s request to
withdraw, and it will be addressed concurrently with Appellant’s second issue
challenging the discretionary aspects of his sentence.
As this Court clarified in Cartrette, our scope of review following the
revocation of probation is not limited solely to determining the validity of the
probation revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the time of the
initial sentencing. Cartrette, 83 A.3d at 1033-1034. Rather, it also
includes challenges to the discretionary aspects of the sentence imposed.
Specifically, we unequivocally held that “this Court’s scope of review in an
appeal from a revocation sentencing includes discretionary sentencing
challenges.” Id. at 1034. Further, as we have long held, the imposition of
sentence following the revocation of probation is vested within the sound
discretion of the trial court, which, absent an abuse of that discretion, will
not be disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913
(Pa. Super. 2000).
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It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Instead, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
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.
[708]; (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 (Pa. Super.
2006)).
Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects
of a sentence are waived if they are not raised at the sentencing hearing or
in a motion to modify the sentence imposed. Moury, 992 A.2d at 170
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(citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In
addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must
be filed within ten days of the imposition of sentence following the
revocation of probation. Pa.R.Crim.P. 708(D). As the comment to Rule 708
explains:
Issues properly preserved at the sentencing proceeding need
not, but may, be raised again in a motion to modify sentence in
order to preserve them for appeal. In deciding whether to move
to modify sentence, counsel must carefully consider whether the
record created at the sentencing proceeding is adequate for
appellate review of the issues, or the issues may be waived.
Pa.R.Crim.P. 708 cmt. Thus, an objection to a discretionary aspect of a
sentence is waived if not raised in a post-sentence motion or during the
sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745
(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was
waived because appellant did not object at sentencing hearing or file post-
sentence motion).
In the instant case, Appellant filed a timely appeal, the issue was
properly preserved in his post-sentence motion, and the Anders brief
contains a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a sentence pursuant to
Pa.R.A.P. 2119(f). Accordingly, we must determine whether Appellant has
raised a substantial question that the sentence is not appropriate under 42
Pa.C.S. § 9781(b). Moury, 992 A.2d at 170.
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Here, we conclude that Appellant’s challenge to the imposition of his
sentence as excessive, together with his claim that the trial court failed to
consider his rehabilitative needs,3 presents a substantial question. See
Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015)
(excessive sentence claim, in conjunction with assertion that court failed to
consider mitigating factors, raises a substantial question).4 Accordingly, we
address the merits of Appellant’s claim.
As stated above, the conviction at issue is for corruption of a minor, a
misdemeanor of the first degree. After the revocation of probation, the trial
court imposed a standard-range sentence under 204 Pa. Code § 303.16 of
six to twenty-four months of incarceration. Appellant provides no basis upon
which we can conclude the trial court abused its discretion in this regard,
and we deem Appellant’s claim of excessiveness specious. Moreover, and
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3
Anders Brief at 14, 18.
4
Despite concluding that the appellant raised a substantial question, we
noted in Johnson as follows:
This Court has offered “less than a model of clarity and
consistency” in determining whether this particular issue raises a
substantial question. See Commonwealth v. Dodge, 77 A.3d
1263, 1272 n.8 (Pa. Super. 2013); see also Commonwealth v.
Seagraves, 103 A.3d 839, 841-842 (Pa. Super. 2014).
Nevertheless, as the Dodge Court stated, “unless an en banc
panel of this Court or our Supreme Court overturns these
decisions, we are bound to follow them.” Dodge, 77 A.3d at
1273.
Johnson, 125 A.3d at 826 n.2.
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contrary to Appellant’s argument, the trial court thoroughly considered
Appellant’s rehabilitative needs. N.T., 7/14/16, at 7-8. The trial court
discussed Appellant’s designation as a sexually violent predator, the need for
sex-offender treatment in a state correctional facility, previous refusals to
participate in treatment, and his opportunities to be released on parole and
re-enter society. Id. Appellant’s claims that the trial court failed to consider
his rehabilitative needs is meritless. For these reasons, we conclude that
Appellant is entitled to no relief on appeal.
We have independently reviewed the record in order to determine if
counsel’s assessment about the frivolous nature of the present appeal is
correct. Tukhi, 149 A.3d at 886; see also Commonwealth v. Flowers,
113 A.3d 1246, 1250 (Pa. Super. 2015) (after determining that counsel has
satisfied the technical requirements of Anders and Santiago, this Court
must conduct an independent review of the record to determine if there are
additional, non-frivolous issues overlooked by counsel). After review of the
issues raised by counsel and our independent review of the record, we
conclude that an appeal in this matter is frivolous. Accordingly, we grant
counsel’s petition to withdraw and affirm the judgment of sentence.
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Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2017
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