J-S22001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD DAVID MARTINEZ,
Appellant No. 1320 MDA 2016
Appeal from the Judgment of Sentence June 23, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0006117-2015
BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 19, 2017
Appellant, Edward David Martinez, appeals from the judgment of
sentence entered following his conviction of robbery and additional crimes in
relation to the burglary of a private home in Berks County. In addition,
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 a
withdrawal from representation on direct appeal. We grant counsel’s
petition to withdraw and affirm the judgment of sentence.
We summarize the history of this case as follows. On November 17,
2015, Appellant and three co-defendants went to a home in Oley Township
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*
Retired Senior Judge assigned to the Superior Court.
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on the mistaken belief that it was a “drug house,” with the intent to steal
controlled substances. N.T., 6/23/16, at 5-6. The home was occupied by a
family of three, consisting of a husband, wife, and their eleven-month-old
child. Id. at 6. During the home invasion, the husband was shot by one of
the four co-defendants and sustained serious bodily injuries. Id. In
addition, the husband shot Appellant and one of his co-defendants. Id.
Appellant and his injured co-defendant were driven to the hospital by the
unharmed co-defendants. Id. at 7. Appellant received treatment for his
injuries and was arrested after he was released from the hospital. Id. at 7-
8.
On January 8, 2016, the Commonwealth filed an information charging
Appellant with a total of twenty-one counts related to the incident.
Information, 1/8/16, at 1-4. On June 23, 2016, Appellant entered an open
plea of guilty to one count each of aggravated assault, burglary, and
robbery, and three counts of conspiracy.1 The trial court sentenced
Appellant to serve an aggregate term of incarceration of fifteen to thirty-two
years. N.T., 6/23/16, at 18. In fashioning Appellant’s sentence, the trial
court applied the deadly weapon enhancement under 204 Pa.Code
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1
18 Pa.C.S. §§ 2702, 3502, 3701, and 903, respectively.
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§ 303.10.2 After sentencing was completed, the Commonwealth moved to
dismiss the remaining counts in the information, which the trial court
granted. Id.
On June 29, 2016, Appellant filed a pro se post-sentence motion. On
July 11, 2016, Appellant’s counsel filed a nunc pro tunc post-sentence
motion seeking to modify Appellant’s sentence. On July 13, 2016, the trial
court entered an order denying both post-sentence motions and indicating
that Appellant had thirty days in which to file a notice of appeal. This timely
appeal followed. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.3
As noted, counsel has filed a petition to withdraw from representation.
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). There are procedural and briefing
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2
We note that in Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.
Super. 2014) (en banc), this Court concluded that the deadly weapon
enhancement found at section 303.10 is not unconstitutional under Alleyne
v. United States, 133 S.Ct. 2151 (2013) (holding that any fact other than a
prior conviction that triggers a mandatory minimum sentence must be found
by a jury beyond a reasonable doubt). Buterbaugh, 91 A.3d at 1270 n.10.
3
In his Pa.R.A.P. 1925(b) statement, Appellant raised the following single
issue:
Whether the aggregate sentence in this matter is manifestly
excessive and a product of an abuse of judicial discretion?
Pa.R.A.P. 1925(b) Statement, 9/20/16, at 1.
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requirements imposed upon an attorney who seeks to withdraw on direct
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 the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within the petition
to withdraw, counsel averred that he conducted a conscientious review of
the record and pertinent legal research. Following that review, counsel
concluded that the present appeal is frivolous. Counsel sent Appellant a
copy of the Anders brief and petition to withdraw, as well as a letter, a copy
of which is attached to the petition to withdraw. In the letter, counsel
advised Appellant that he could represent himself or that he could retain
private counsel.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide 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.
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Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. The brief sets forth the
procedural history and facts of this case and outlines pertinent case
authority. We thus conclude that the procedural and briefing requirements
for withdrawal have been met.
Counsel presents the following issue for our review:
Whether the aggregate sentence in this matter was manifestly
excessive and a product of an abuse of judicial discretion?
Anders Brief at 4.
Appellant’s sole issue challenges the discretionary aspects of his
sentence. 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). Rather, 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.
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[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. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Whether a particular issue constitutes a substantial question about the
appropriateness of sentence is a question to be evaluated on a case-by-case
basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).
As to what constitutes a substantial question, this Court does not accept
bald assertions of sentencing errors. Commonwealth v. Malovich, 903
A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the
reasons the sentencing court’s actions violated the sentencing code. Id.
Herein, the first three requirements of the four-part test are met,
those being that Appellant brought an appropriate appeal, raised the
challenge in a post-sentence motion, and included in his appellate brief the
necessary concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f).4 Therefore, we next determine
whether Appellant raises a substantial question requiring us to review the
discretionary aspects of the sentence imposed by the trial court.
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4
We observe the Commonwealth has conceded Appellant has complied with
Pa.R.A.P. 2119(f). Commonwealth’s Brief at 6 n.1.
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Appellant asserts that the sentencing court abused its discretion by
imposing a manifestly excessive sentence. However, as previously stated,
we do not accept bald assertions of sentencing errors. Malovich, 903 A.2d
at 1252 (citing Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa.
2002)). “Rather, Appellant must support his assertions by articulating the
way in which the court’s actions violated the sentencing code.” Id. Thus, to
the extent Appellant’s claim is a bald allegation of trial court error at the
time of sentencing, we conclude that he has not presented a substantial
question for our review.
Even if we had concluded that Appellant presented a substantial
question and were to address the merits of this claim, we would determine,
as did the trial court, that the issue lacks merit. The trial court explained:
Appellant challenges the sentencing imposed for his
numerous convictions. In aggregate, we imposed a term of
incarceration for not less than [fifteen] (15) nor more than
[thirty-two] (32) years’ incarceration. This sentence was based
on numerous factors which clearly indicated that Appellant
required an extensive term of incarceration. The following
excerpt from Appellant’s sentencing hearing is illustrative:
The Court: All right. I have taken into account
many things. Of course I have reviewed the P.S.I.,
which frankly is not favorable for the defendant.
Despite the fact he is a young man, he has a very
substantial prior record score. Most troubling of
course, that includes an adjudication of a second
degree felonious robbery as a juvenile. And
obviously what occurred in this incident is sort of an
outgrowth of that conduct.
I have taken into account the provisions of the
Sentencing Guidelines. I have taken into account
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the factual background and pattern of the case about
which, about the best thing I can say it is malicious.
No one was killed here. And for that we should all
be thankful; otherwise, we would be having an
entirely different proceeding here than we are.
I also want to point out that in looking at the
sentencing guidelines that have been referenced by
both counsel, if the defendant were to receive
consecutive sentences on these counts, even at the
very bottom of the standard range, the minimum
sentence would be 28 years in prison, which is
substantially more than even the Commonwealth has
recommended here.
I note, [Appellant], you are a young man and you
are going to get a very substantial sentence here.
But you are going to be paroled on these charges.
And you are not going to be an old man when that
happens so long as you conduct yourself well and
learn the lessons here while you are in jail. That’s
the thing that you must remember. And you must
remember not only for yourself but for your family as
well.
Taking all of these matters into account, I’m going to
[-- (pause in the proceeding while the Judge spoke
to his tipstaff.)]
And also I want to add, [Appellant], you need to
recognize here -- I don’t know what other people
have told you. I don’t know what other people in the
jail have told you. Most of those people have no
idea what they are talking about first of all. And
secondly, the Commonwealth has not dealt with you
particularly harshly here. Even in their
recommendation, which is very substantially under
what even the bottom range guideline sentence
would be. So you ought to walk out of this
courtroom feeling fortunate for the disposition of this
case considering how much more severe it could
have been under the circumstances. . . .
[N.T., 6/23/16, at 15-17.]
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Appellant’s allegation that this [c]ourt did not adequately
consider the aggregate sentence is without merit. During our
deliberations, in arriving at the length of sentence, we dutifully
considered Appellant’s delinquent history and the severity of the
crime. Considering these factors, amongst others, in respect to
the Commonwealth’s sentencing guidelines, our sentence was
not manifestly excessive. Instead, this [c]ourt showed mercy,
as the sentence the Appellant received was well below the
bottom of the standard range.
Trial Court Opinion, 9/21/16, at 2-3. Therefore, if we had addressed this
issue, we would have concluded Appellant failed to establish that the trial
court abused its discretion in fashioning Appellant’s sentence.
We also have independently reviewed the record in order to determine
whether there are any non-frivolous issues present in this case that
Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.
Super. 2014). Having determined that there are no meritorious issues, we
grant Appellant’s counsel permission to withdraw, and we affirm the
judgment of sentence.
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2017
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