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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TREY GUNTER,
Appellant No. 830 WDA 2016
Appeal from the Judgment of Sentence entered February 9, 2016
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0003499-2014.
BEFORE: OLSON and RANSOM, JJ., and STEVENS,* P.J.E.,
MEMORANDUM BY RANSOM, J.: FILED MAY 08, 2017
Appellant Trey Gunter appeals from the judgment of sentence of
fifteen to forty years of imprisonment, imposed February 9, 2016, after he
pleaded guilty to third-degree murder.' Appellant's counsel has filed a
petition to withdraw, alleging that this appeal is wholly frivolous,
accompanied by an Anders brief.2 We grant counsel's withdrawal petition
and affirm the judgment of sentence.
The trial court summarized the pertinent facts as follows:
[Appellant's conviction stems] from an incident that
occurred on November 17, 2014, at an apartment off -campus of
' 18 Pa.C.S. § 2502(c).
2 See Anders v. California, 386 U.S. 738 (1967).
*Former Justice specially assigned to the Superior Court.
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Edinboro University. Appellant, a Pittsburgh native, was an
Edinboro student one semester away from graduating. The
victim, Tobiah Johnson, had taken Appellant's gun several days
earlier. Appellant obtained another gun, and, as alleged by the
Commonwealth, with the help of Ryan Andrews and Michael
Barron, confronted the victim outside of the victim's apartment.
The Commonwealth further alleged that Mr. Barron was waiting
outside of the victim's apartment, and that when the victim
came out, Mr. Barron punched him in his head, knocking him to
the ground. Appellant and Mr. Andrews got out of their vehicle
and assaulted the victim. When the victim tried to get up,
Appellant shot him in his back, killing him.
Trial Court Opinion, 8/8/16, at 1-2.
Following his arrest, the Commonwealth and Appellant's trial counsel
reached a plea agreement, and Appellant completed a written plea colloquy
form. The trial court conducted an oral colloquy with Appellant at an
evidentiary hearing on September 23, 2015, and at its conclusion, the trial
court accepted Appellant's plea as knowing, voluntary and intelligent. On
February 9, 2016, the trial court sentenced Appellant as outlined above. The
court denied Appellant's timely -filed motion to modify sentence. This appeal
follows. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
Within her Anders brief, Appellant's counsel addresses the following
issues Appellant wished to raise on appeal:
A. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION IN ACCEPTING [APPELLANT'S] PLEA OF GUILTY
WHEN [HE] DID NOT ENTER THE PLEA FREELY, KNOWINGLY
AND INTELLIGENTLY?
B. WHETHER [APPELLANT'S] SENTENCE IS MANIFESTLY
EXCESSIVE, CLEARLY UNREASONABLE AND INCONSISTENT
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WITH THE OBJECTIVE OF THE PENNSYLVANIA SENTENCING
CODE?
Appellant's Brief at 4.
"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). An Anders brief shall comply with the requirements set forth by our
Supreme Court 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
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.
Counsel seeking to withdraw on direct appeal must meet the following
obligations to his or her client:
Counsel also must 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
addition to the points raised by counsel in the Anders brief.
Commonwealth v. Oreliana, 86 A.3d 877, 880 (Pa. Super. 2014)
(citations omitted).
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Upon review of counsel's petition to withdraw, the supporting
documentation, and her Anders brief, we conclude that counsel has satisfied
the procedural requirements of Anders/Santiago.
"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) (citation omitted). 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) (footnote and citations omitted).
Appellant first asserts that he did not enter a knowing, voluntary, and
intelligent guilty plea. He failed to raise the issue of the validity of his guilty
plea either orally before the trial court or in a post -sentence motion.
Accordingly, this issue is waived for purposes of appeal. See generally,
Pa.R.Crim.P. 720(B); Commonwealth v. D'Collanfield, 805 A.2d 1244
(Pa. Super. 2002). Moreover, absent waiver, our review of the record
refutes Appellant's assertions that he was not informed of the elements of
third-degree murder or the legal and factual basis for his guilty plea. See
generally, Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011).
In his second issue, Appellant challenges the discretionary aspects of
his sentence. As we recently observed in Commonwealth v. McLaine, 150
A.3d 70, 76 (Pa. Super. 2016) (citation omitted), "[a]n appellant is not
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entitled to the review of challenges to the discretionary aspects of a
sentence as a matter of right." Instead, to invoke our jurisdiction involving
a challenge to the discretionary aspects of a sentence, an appellant must
satisfy the following four-part test:
(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.
Because Appellant's has met the first three requirements, we must
determine whether he has raised a substantial question. The presence of a
substantial question is determined on a case -by -case basis and only exists
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. Diehl, 140 A.3d 34, 44-45 (Pa.
Super. 2016) (citations omitted).
Although Appellant acknowledges that he received a standard -range
minimum sentence, he essentially argues that the trial court did not properly
consider the sentencing factors found at 42 Pa.C.S. § 9721, because it
imposed a lengthy sentence despite his presentation of many mitigating
factors. An argument that the sentencing court failed to consider mitigating
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factors in favor of a lesser sentence does not present a substantial question
appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254,
1257-58 (Pa. Super. 2004) (citing Commonwealth v. McNabb, 819 A.2d
54, 57 (Pa. Super. 2003)).
Sentencing is a matter vested in the sound discretion of the sentencing
court, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion, which in this context, 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. Shull, 148 A.3d 820
(Pa. Super. 2016).
Even if we were to find a substantial question to exist, we would
conclude that the trial court adequately explained at sentencing why it chose
a lengthy sentence despite Appellant's evidence of mitigation.
As sentencing, the trial court stated:
THE COURT: All right. I have considered the statements
of counsel. I've considered the references of character, the
record of those in attendance. As stated previously, I have
thoroughly read the Pennsylvania Commission on Sentencing
Guidelines and I have read the pre -sentence investigative report.
I have made it a part of the record. I have spent exhaustive
time going through your prior history, [Appellant] through the
Allegheny Office of Children and Youth and Families. I have also
read extensively and incorporated your entire sentencing
memorandum as advocated by [trial counsel], and I've also
considered the government's comments in balance, including
their sentencing memorandum.
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So here's what I am left with. I do have to consider the
nature of the offense, the gravity, the need for public protection,
the chances of rehabilitation, several of the other factors as
outlined by [trial counsel]. Those are all fair. But I do have a lot
of discretion here. Let me first start by telling you there is no
chance you're getting a sentence in the mitigated range. I was
perhaps open to the idea until I heard further from you. You are
not committed to living a crime -free life. Somehow, somewhere,
you appear to me to be beholden to this whole arena of, I think,
gun violence, gun use, and to some extent, drug use. You had
an opportunity to explain the texts that were attributed to your
phone. As a former local and federal prosecutor, and as a Judge
now in my fourteenth year, there is no question what is going on
in those messages. And it is at a time that is within three days
of this murder.
Also, I've considered your level of remorse. I'm not
completely convinced how remorseful you are, because if you
were, you would have thought about the consequences of not
only the gun that was stolen from you being in the hands of
perhaps [the victim] or perhaps others in the Edinboro
community, but also the whereabouts of a 9 millimeter, the
murder weapon, if you will, and where that ended up. And we
still don't have that accounted for. Those are very concerning
elements to me.
N.T., 2/9/16, at 104-106.
After imposing costs and restitution, and declining to impose a fine,
the trial court then stated:
I believe that a standard range sentence is appropriate
and it will be as follows: There will be a minimum
sentence of fifteen years to a maximum of forty years.
I will consider any request based upon your conduct in
prison as to whether or not you will be and can be
persuaded to be released after serving your minimum, but
that is a matter of state parole review. You see,
[Appellant], you held the keys to your sentence and you
refused to turn the lock. And I am convinced this is the
least restrictive way to accomplish the sentencing factors
that are before me.
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Id. at 106-107.
In arguing an abuse of discretion, Appellant essentially asks this court
to reweigh the legitimate sentencing factors presented. This we cannot do.
See Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (citing
Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en
banc) (explaining that an allegation that the sentencing court did not
adequately consider various factors is, in effect, a request that this Court
substitute its judgment for that of the trial court in fashioning a defendant's
sentence); see also Commonwealth v. Fullin, 892 A.2d 843, 849-580
(Pa. Super. 2006) (where the sentencing court had the 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).
Thus, given the above, we agree with counsel's assessment that the
issues Appellant wished to raise on appeal are frivolous. Moreover, our
independent review of the record reveals no other non -frivolous issue. We
therefor grant counsel's petition to withdraw and affirm Appellant's judgment
of sentence.3
3 Given this disposition, we deny Appellant's pro se motion for remand
without prejudice to his ability to raise his claim of newly -discovered
evidence in post -conviction proceedings.
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Petition to withdraw granted. Motion for Remand denied. Judgment of
sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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