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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JEREMY COOL, : No. 1925 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, August 9, 2016,
in the Court of Common Pleas of Luzerne County
Criminal Division at No. CP-40-CR-0001360-2015
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 18, 2017
Jeremy Cool appeals from the August 9, 2016 judgment of sentence
where the trial court resentenced him to serve a term of 8 to 16 months’
imprisonment for retail theft.1 Matthew P. Kelly (“Attorney Kelly”),
appellant’s counsel, has filed a petition to withdraw, alleging that the direct
appeal is wholly frivolous, accompanied by an Anders brief.2 After careful
review, we grant the petition to withdraw and affirm.
The facts, as recounted by the trial court, are as follows:
On February 27, 2014, [appellant] was
charged with Retail Theft, 18 Pa. C.S.A. § 3929
§§ A1 after absconding with merchandise from the
1
18 Pa.C.S.A. § 3929(a)(1).
2
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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Kmart Department Store in Edwardsville,
Pennsylvania.
On September 2, 2015, [appellant] pled guilty
to Retail Theft. . . . On October 9, 2015, [appellant]
was sentenced to two (2) to four (4) months in the
Luzerne County Correctional Facility followed by
one (1) year probation.
On October 14, 2015, [appellant] filed a Motion
for Modification of Sentence. On October 20, 2015,
the Motion for Modification was denied. On
October 26, 2015, [appellant] filed a Petition for
Parole to Inpatient Treatment to White Deer Run of
Allenwood, Pennsylvania. On October 28, 2015,
without objection of the Commonwealth, [appellant’s
p]etition for inpatient treatment was granted. On
November 23, 2015, [appellant] filed an Application
for Parole indicating that at the time of parole he will
have successfully completed inpatient treatment at
White Deer Run of Allenwood. After hearing, on
December 11, 2015, the Court granted [appellant’s]
application for parole effective December 14, 2015
with the stipulation that [appellant] reside at the
James A. Casey House, LLC.
On June 10, 2016, a probation violation report
was filed against [appellant] alleging a new arrest.
After continuance was granted in this matter, by
admission of [appellant], [appellant’s] probation was
revoked. [Appellant] was to be transferred to a
State Correctional Institute to be evaluated for State
Intermediate Punishment. The sentencing was to be
scheduled by video. On July 27, 2016, [appellant]
filed a Motion for Reconsideration of sentence. On
August 9, 2016, after hearing on [appellant’s]
Motion, [appellant’s] Motion for Modification was
denied and [appellant] was resentenced to eight (8)
to sixteen (16) months consecutive to Case No. 3219
of 2015.
On August 10, 2016, [appellant] filed a Motion
to Modify Sentence for the following reasons:
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a. [Appellant’s] crimes are due to his
serious heroin addiction;
b. [Appellant] is amenable to treatment, as
evidenced by his successfully completing
the White Deer Run inpatient
rehabilitation program;
c. This Honorable Court is aware of
[appellant’s] addiction as evidenced by
the Court’s original attempt to have
[appellant] evaluated for the State
Intermediate Punishment Program;
d. [Appellant] could have been sentenced
concurrently with with case 3219-15;
e. [Appellant] could have been sentenced
to a County sentence; and
f. [Appellant] has private insurance and
has an opportunity to attend a long term
rehabilitation program if serving a
sentence at LCCF.[3]
On August 11, 2016, the Court denied
[appellant’s] Motion to Modify Sentence.
On November 18, 2016, [appellant] filed an
Application to File Appeal Nunc Pro Tunc. On
November 22, 2016, the Court granted [appellant’s]
Motion permitting [appellant] to file an appeal within
thirty (30) days of the date of the order. On
November 22, 2016, [appellant] filed a Notice of
Appeal to the Superior Court.
This Court entered an Order on December 7,
2016 directing [appellant] to file of record a Concise
Statement of Errors Complained of on Appeal
pursuant to Pa. R.A.P. 1925(b) and serve a copy of
same upon the District Attorney and this Court
pursuant to Pa. R.A.P. 1925(b)(1). The Order
3
“LCCF” is an abbreviation for Luzerne County Correctional Facility.
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required the Statement to concisely identify each
ruling or error [a]ppellant intends to challenge with
sufficient detail to identify all pertinent issues for the
Judge to consider. Further, the Order provided that
any issue not properly included in the Concise
Statement and timely filed and served within
twenty-one (21) days of the date of the Order shall
be deemed waived pursuant to Rule 1925(b).
On December 22, 2016, [appellant] filed a
Statement of Matters Complained of on Appeal
Pursuant to Rule 1925(b). On December 28, 2016,
the Commonwealth filed Commonwealth’s Response
to [appellant’s] Concise Statement of Matters
Complained of on Appeal Pursuant to
Pa.R.A.P. 1925([b]).
Trial court opinion, 3/13/17 at 1-2.
Appellant raises one issue for this court’s review: “Whether the trial
court abused its discretion in sentencing the [a]ppellant[?]” (Appellant’s
brief at 1.)
On May 8, 2017, Attorney Kelly filed in this court a petition to
withdraw as counsel and an Anders brief, wherein he states that the appeal
is wholly frivolous and no meritorious issues exist.
A request by appointed counsel to withdraw
pursuant to Anders and Santiago gives rise to
certain requirements and obligations, for both
appointed counsel and this Court. Commonwealth
v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
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939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to be
wholly frivolous. Counsel
must also file an Anders brief
setting forth issues that might
arguably support the appeal
along with any other issues
necessary for the effective
appellate presentation
thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
appellant of the right to retain
new counsel, proceed pro se
or raise additional points
worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
. . . 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
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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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked
the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Kelly’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant; advised him of his right to retain new counsel,
proceed pro se, and/or raise any additional points that he deems worthy of
this court’s attention; and attached to the Anders petition a copy of the
letter sent to appellant as required under Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels,
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999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in
Santiago set forth the new requirements for an Anders brief, which are
quoted above, the holding did not abrogate the notice requirements set forth
in Millisock that remain binding legal precedent.”). As Attorney Kelly has
complied with all of the requirements set forth above, we conclude that
counsel has satisfied the procedural requirements of Anders.
Once counsel has met his obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,
we now turn to the merits of appellant’s appeal.
Appellant asserts that the trial court abused its discretion when
imposing sentences. Specifically, appellant alleges that the trial court failed
to consider his heroin addiction and successful completion of an inpatient
rehabilitation program and that if he received a county sentence, he would
have an opportunity to attend a long-term rehabilitation program. Appellant
further asserts that the trial court abused its discretion when it failed to
sentence him concurrently with a sentence that he was then serving at
Luzerne County Docket No. 3219 of 2015.
Our standard of review is well settled:
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. An abuse
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of discretion is more than an error in judgment--a
sentencing court has not abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015), quoting
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015). See also Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of
review in an appeal from a revocation sentencing includes discretionary
sentencing challenges).
Upon revoking probation, “the sentencing
alternatives available to the court shall be the same
as were available at the time of initial sentencing,
due consideration being given to the time spent
serving the order of probation.” 42 Pa.C.S.
§ 9771(b). Thus, upon revoking probation, the trial
court is limited only by the maximum sentence that
it could have imposed originally at the time of the
probationary sentence, although once probation has
been revoked, the court shall not impose a sentence
of total confinement unless it finds that:
(1) the defendant has been convicted of
another crime; or
(2) the conduct of the defendant indicates
that it is likely that he will commit
another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate
the authority of the court.
42 Pa.C.S. § 9771(c).
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Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note
that the sentencing guidelines do not apply to sentences imposed as the
result of probation revocations. Id. at 27.
An appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no
absolute right to do so but, rather, must petition this
Court for permission to do so. [Commonwealth v.
Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
42 Pa.C.S.A. § 9781(b). Specifically, the appellant
must present, as part of the appellate brief, a
concise statement of the reasons relied upon for
allowance of appeal. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f). In that statement, the appellant
must persuade us there exists a substantial question
that the sentence is inappropriate under the
sentencing code. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f).
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).
In general, an appellant may demonstrate the
existence of a substantial question by advancing a
colorable argument that the sentencing court’s
actions were inconsistent with a specific provision of
the sentencing code or violated a fundamental norm
of the sentencing process. Malovich, 903 A.2d at
1252. While this general guideline holds true, we
conduct a case-specific analysis of each appeal to
decide whether the particular issues presented
actually form a substantial question. Id. Thus, we
do not include or exclude any entire class of issues
as being or not being substantial. Id. Instead, we
evaluate each claim based on the particulars of its
own case. Id.
Id. at 289-290.
Attorney Kelly included a Rule 2119(f) statement in his brief, in which
he avers that the trial court’s refusal to sentence appellant to a county
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sentence for the purpose of entering into a long-term rehabilitation program
is a substantial question that requires discretionary review.
In the argument section of the Anders brief, Attorney Kelley asserts
that appellant alleges that the trial court failed to consider appellant’s heroin
addiction and his successful completion of an inpatient rehabilitation
program. If the trial court had considered these rehabilitative needs, it
would have sentenced him to a county sentence where he could have
participated in a long-term rehabilitation program. Attorney Kelly asserts
that a claim that a trial court abused its discretion when sentencing a
defendant by failing to consider his rehabilitative needs does not raise a
substantial question that a sentence was inappropriate under the Sentencing
Code.
The trial court stated that it received a pre-sentence investigation
report. (Notes of testimony, 8/9/16 at 10.) “[W]here the trial court is
informed by a pre-sentence report, it is presumed that the court is aware of
all appropriate sentencing factors and considerations[.]” Commonwealth
v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009). As a result, the trial
court was aware of appellant’s completion of an inpatient treatment program
and the possible current need for drug treatment. Further, allegations that a
sentencing court failed to adequately consider mitigating factors does not
raise a substantial question for appellate review. Commonwealth v.
DiSalvo, 70 A.3d 900, 903 (Pa.Super. 2013). This court agrees with
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Attorney Kelly that appellant failed to establish a substantial question that
the trial court’s decision violated the Sentencing Code or a fundamental
norm of the sentencing process.
Attorney Kelly also reports that appellant alleges that the trial court
abused its discretion when it failed to sentence appellant concurrently with
the sentence he was serving at Luzerne County Docket No. 3219 of 2015.
Attorney Kelly explains that 42 Pa.C.S.A. § 9721 affords a sentencing court
discretion to impose a sentence concurrently or consecutively with other
sentences imposed at the same time or already imposed and that a
challenge to this exercise of discretion does not ordinarily raise a substantial
question. See Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.
2005). This court agrees with Attorney Kelly that this issue is frivolous.
Additionally, our independent review of the record has not disclosed
any potentially non-frivolous issues. Consequently, we grant counsel’s
petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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