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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RANDY A. KIMBLE
Appellant No. 963 WDA 2016
Appeal from the Judgment of Sentence February 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009706-2014
CP-02-CR-0010820-2014
CP-02-CR-0013586-2014
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 23, 2017
Appellant, Randy A. Kimble, appeals from the judgment of sentence
entered on February 9, 2015, following his guilty plea to one count each of
simple assault, terroristic threats, and resisting arrest.1 In this direct
appeal, Appellant’s court-appointed counsel filed both a petition to withdraw
as counsel and an accompanying brief pursuant to Anders v. California,
386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We conclude that Appellant’s counsel complied with the procedural
requirements necessary for withdrawal. Moreover, after independently
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18 Pa.C.S.A. §§ 2701(a)(1), 2706(a)(1), and 5104, respectively.
* Retired Senior Judge assigned to the Superior Court.
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reviewing the record, we conclude that the instant appeal is wholly frivolous.
We therefore grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
The trial court set forth the facts and procedural history of this case as
follows:
Appellant [] was charged by criminal information (CC
201409706) with three counts of terroristic threats, one
summary count of disorderly conduct, and one summary
count of harassment.
Appellant was charged by criminal information (CC
201410820) with one count of aggravated assault.
Appellant was charged by criminal information (CC
201413586) with one count of simple assault, one count of
resisting arrest, and one summary count of public
drunkenness.
On February 9, 2015, Appellant entered a negotiated plea
agreement. In exchange for Appellant's guilty plea, the
Commonwealth withdrew: two counts of terroristic threats,
disorderly conduct, and harassment at CC 201409706;
amended aggravated assault to simple assault at CC
201410820; and withdrew simple assault and public
drunkenness at CC 201413586.
That same day, Appellant was sentenced by the [t]rial
[c]ourt as follows:
CC 201410820 count one: simple assault — one year
probation;
CC 201409706 count one: terroristic threats — two
years probation to be served consecutive to the
period of probation imposed at CC 201410820;
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CC 201413586 count two: resisting arrest — one
year probation to be served consecutive to the
period of probation imposed at CC 201409706.
Thus, Appellant's aggregate sentence was four years
[of] probation.
On July 31, 2015, Appellant filed a pro se PCRA Petition.
The [t]rial [c]ourt appointed counsel for Appellant, and
granted Appellant's PCRA [p]etition to reinstate his
appellate rights on May 6, 2016.
On May 20, 2016, Appellant filed a post sentence motion to
reconsider his sentence, which was denied by the [t]rial
[c]ourt on June 1, 2016.
Trial Court Opinion, 11/1/2016, at 2-4 (footnotes omitted). This timely
appeal resulted.2
“When presented with an Anders brief, [we] 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). We must first determine whether counsel completed the
necessary procedural requirements for withdrawing as counsel.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013).
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2
Appellant filed a notice of appeal on June 29, 2016. On July 14, 2016,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days of
receipt of requested trial transcripts. It is unclear from a review of the
record when Appellant received those transcripts. However, Appellant filed a
Rule 1925(b) concise statement on October 4, 2016, which the trial court
deemed timely. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on November 1, 2016.
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Court-appointed counsel must satisfy certain requirements to withdraw
under Anders.
First, counsel must petition the court for leave to withdraw
and state that after making a conscientious examination of
the record, he has determined that the appeal is frivolous;
second, he must file a brief referring to any issues in the
record of arguable merit; and third, he must furnish a copy
of the brief to the [appellant] and advise him of his right to
retain new counsel or to himself raise any additional points
he deems worthy of [our] attention.
Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012),
quoting Santiago, 978 A.2d at 361. In the submitted Anders brief, 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.
Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.
If counsel meets these requirements, it is then our responsibility “to
make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is wholly frivolous.” Santiago, 978
A.2d at 355 n.5, citing Commonwealth v. McClendon, 434 A.2d 1185,
1187 (Pa. 1981). Counsel will be permitted to withdraw if both the
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procedural and substantive requirements are satisfied. In addition, we
“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 citation omitted). In the case at bar, we find counsel has met
all the above requirements. We now turn to an examination of the Anders
brief.
On appeal, the Anders brief identifies one potential issue for our
review:
1. Whether the trial court imposed an unduly harsh
sentence in imposing consecutive sentences considering
the nature of [A]ppellant’s mental health condition?
Anders Brief at 4. Appellant suggests his aggregate sentence was harsh
and that the trial court abused its discretion by failing to consider his mental
health and by imposing consecutive sentences. Id. at 16-18.
It is well settled that,
with regard to the discretionary aspects of sentencing, there
is no automatic right to appeal. Before [this Court may]
reach the merits of [a challenge to the discretionary aspects
of a sentence], we must engage in a four part analysis to
determine: (1) whether the appeal is timely [filed]; (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.
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Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Here, Appellant filed a timely appeal and preserved his issue by filing a
post-sentence motion for reconsideration of his sentence. Counsel for
Appellant explained that he “ha[d] not fully complied with Pa.R.A.P. 2119(f)
by setting forth in a separate section of the [b]rief for Appellant a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence[,]” because “[p]ursuant to
Santiago, counsel has simultaneously addressed why a substantial question
pursuant to Rule 2119(f) cannot be established and why the merits of the
claim raised are frivolous.” Appellant’s Brief at 14. The Commonwealth has
not objected to Appellant’s failure to file a separate, concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of sentence.
Appellant, however, fails to raise a substantial question for our review.
“A court's exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.”
Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citation
omitted). “Rather, the imposition of consecutive rather than concurrent
sentences will present a substantial question in only ‘the most extreme
circumstances, such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of imprisonment.’” Id.
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(citation omitted). In this case, Appellant received mitigated consecutive
sentences resulting in an aggregate sentence of four years of probation for
three crimes that occurred during three separate criminal episodes. This
sentence does not present a substantial question that the aggregate
sentence was unduly harsh. Further, regarding Appellant’s mental health
claim, “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.” Id. at 339. Regardless, the trial court heard
testimony from Maria Palmer, a supervisor with the community treatment
team at Mercy Behavioral Health. N.T., 2/9/2015, at 9. Initially diagnosed
with schizoaffective disorder, Appellant is currently receiving mental health
services from Mercy Behavioral Health including anger management, impulse
control, and medication monitoring. Id. at 10. The trial court specifically
stated it imposed probation so that Appellant could participate in community
treatment programs. Id. at 14. Hence, we conclude that Appellant fails to
raise a substantial question regarding the trial court’s consideration of
Appellant’s mental health status in fashioning sentence, but that the trial
court, in fact, considered it. For all of the foregoing reasons, we find
Appellant’s sentencing issues frivolous.
Moreover, after an independent review of the entire record, we see
nothing that might arguably support this appeal. The appeal is, therefore,
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wholly frivolous. Accordingly, we affirm Appellant’s judgment of sentence
and grant counsel’s petition for leave to withdraw appearance.
Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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