J-S48027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH ANTHONY STEVENS
Appellant No. 252 MDA 2017
Appeal from the Judgment of Sentence Entered September 16, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at Nos: CP-40-CR-0000214-2016; CP-40-CR-0001072-
2016; and CP-40-CR-0001088-2016
BEFORE: OTT, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 20, 2017
Appellant Joseph Anthony Stevens appeals from the September 16,
2016 judgments of sentence entered in the Court of Common Pleas of
Luzerne County (“trial court”), following his guilty plea to access device
fraud at docket number 214-2016, forgery and criminal conspiracy to
commit access device fraud at docket number 1072-2016, and access device
fraud and receiving stolen property at docket number 1088-2016.
Appellant’s counsel has filed a petition to withdraw, alleging that this appeal
is wholly frivolous, and filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
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* Retired Senior Judge assigned to the Superior Court.
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2009). For the reasons set forth below, we affirm Appellant’s judgments of
sentence, and grant counsel’s petition to withdraw.
The facts and procedural history of this case are undisputed. Briefly,
following Appellant’s open guilty plea to the foregoing crimes, 1 the trial
court, on September 16, 2016, sentenced him to 21 to 42 months’
imprisonment at docket number 214-2016 for access device fraud, graded
as a first-degree misdemeanor. At docket number 1072-2016, the trial
court sentenced Appellant to 21 to 42 months’ imprisonment for conspiracy
to commit access device fraud and a concurrent sentence of 12 to 24
months’ imprisonment for forgery. At docket number 1088-2016, the trial
court sentenced Appellant to 24 to 48 months’ imprisonment for access
device fraud and concurrent sentence of 6 to 12 months in prison for
receiving stolen property. The trial court ordered the sentences at these
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1 At docket number 214-2016, Appellant agreed that, on December 8, 2015,
he used a stolen credit card belonging to victim Jeffery Kulsa to make
several unauthorized transactions totaling $647.83 at various stores. See
N.T. Guilty Plea, 6/10/16, at 7. At docket number 1072-2016, Appellant
agreed that, on December 8, 2016, he, along with an accomplice, used
without permission a credit card belonging to another victim to make
purchases totaling $684.76. Id. at 8. At docket number 1088-2016,
Appellant agreed that, on December 10, 2015, he used without permission a
stolen credit card belonging to victim Anthony Porreca to make unauthorized
purchases. Id. at 8-9.
In exchange for Appellant’s pleading guilty, the Commonwealth withdrew
one count of conspiracy at docket number 214-2016; one count of receiving
stolen property and one count of access device fraud at docket number
1072-2016; and one count of forgery at docket number 1088-2016.
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separate dockets to run consecutively. Accordingly, the trial court sentenced
Appellant to an aggregate term of 66 to 132 months in prison. On
September 26, 2016, Appellant filed post-sentence motions, claiming that
his sentence was “too harsh and severe.” Motion for Reconsideration of
Sentence, 9/26/16, at ¶ 3(a). On January 4, 2017, the trial court denied
Appellant’s post-sentence motion, concluding that “[t]he sentences imposed
upon [Appellant] are all within the standard range.” Trial Court Order,
1/4/17. Appellant timely appealed to this Court. The trial court directed
Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. Instead of filing a court-ordered Rule 1925(b) statement,
Appellant’s counsel filed a statement of intent to file an Anders brief under
Pa.R.A.P. 1925(c)(4).2 In response, the trial court issued a three-page
Pa.R.A.P. 1925(a) opinion.
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2 Rule 1925(c)(4) provides:
In a criminal case, counsel may file of record and serve on the
judge a statement of intent to file an [Anders] brief in lieu of
filing a Statement. If, upon review of the [Anders] brief, the
appellate court believes that there are arguably meritorious
issues for review, those issues will not be waived; instead, the
appellate court may remand for the filing of a Statement, a
supplemental opinion pursuant to Rule 1925(a), or both. Upon
remand, the trial court may, but is not required to, replace
appellant’s counsel.
Pa.R.A.P. 1925(c)(4).
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On May 19, 2017, Appellant’s counsel filed in this Court a motion to
withdraw as counsel and filed an Anders brief, wherein counsel raises a
single issue for our review:
Whether the imposition of an aggregate 66 month to 132
month sentence in a state correctional institution is harsh and
excessive when [Appellant] took responsibility by pleading guilty
and has a history of drug addiction leading to [Appellant’s] poor
decisions.
Anders Brief at 1.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s petition to withdraw from representation provides
that counsel reviewed the record and concluded that the appeal is frivolous.
Furthermore, counsel notified Appellant that she was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
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her Anders brief. Counsel also advised Appellant of his right to retain new
counsel, proceed pro se, or raise any additional points he deems worthy of
this Court’s attention. Accordingly, we conclude that counsel has satisfied
the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court
held:
[I]n 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.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates
that she has complied with the briefing requirements of Santiago. We,
therefore, conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met her 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.
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Appellant’s issue sub judice challenges only the discretionary aspects
of sentencing.3 Appellant argues that the trial court abused its discretion in
sentencing him to an aggregate term of 66 to 132 months’ imprisonment
because the sentence was inappropriately harsh and excessive. Put
differently, Appellant claims that the trial court abused its discretion in
running his sentences at the three different dockets consecutively.
“Initially, we note that when a defendant enters a guilty plea, he or
she waives all defects and defenses except those concerning the validity of
the plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super.
2012) (citation omitted). “Our law presumes that a defendant who enters a
guilty plea was aware of what he was doing. He bears the burden of proving
otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011) (citation omitted). “However, when the plea agreement is open,
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3 When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial
court will not be found to have 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. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 64 A.3d 630 (Pa. 2013).
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containing no bargained for or stated term of sentence, the defendant will
not be precluded from appealing the discretionary aspects of h[is]
sentence.”4 Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super.
1999) (citation omitted).
It is well-settled that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215,
1220 (Pa. Super. 2011). Rather, where an appellant challenges the
discretionary aspects of a sentence, an appellant’s appeal should be
considered as a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated 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. [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
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4 The record in this case reveals that Appellant entered into an open guilty
plea.
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the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first two requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, and
preserved the issue on appeal through his post-sentence motions.
Appellant, however, has failed to include a Rule 2119(f) statement in his
brief.5 It is settled that “[a] failure to include the Rule 2119(f) statement
does not automatically waive an appellant’s argument; however, we are
precluded from reaching the merits of the claim when the Commonwealth
lodges an objection to the omission of the statement.” Commonwealth v.
Love, 896 A.2d 1276, 1287 (Pa. Super. 2006), appeal denied, 940 A.2d
363 (Pa. 2007). Instantly, we decline to find waiver based on Appellant’s
omission of a Rule 2119(f) statement because the Commonwealth did not
object to the omission.
We now turn to the fourth part of the Moury test, i.e., we must
determine if Appellant’s sentencing issue raises a substantial question. The
determination of what constitutes a substantial question must be evaluated
on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.
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5 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
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Super. 2007). We have found that a substantial question 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. Phillips, 946 A.2d 103, 112 (Pa.
Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009).
It is settled that this Court does not accept bald assertions of
sentencing errors. See Commonwealth v. Malovich, 903 A.2d 1247,
1252 (Pa. Super. 2006). We consistently have recognized that bald
excessiveness claims premised on imposition of consecutive sentences do
not raise a substantial question for our review. See Commonwealth v.
Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc) (stating, “[a]
court’s exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question[ ]”), appeal
denied, 126 A.3d 1282 (Pa. 2015); see also Commonwealth v. Ahmad,
961 A.2d 884, 887 n.7 (Pa. Super. 2008); Commonwealth v. Pass, 914
A.2d 442, 446-47 (Pa. Super. 2006). Appellant here claims only that,
because the trial court ordered his sentences to run consecutively, his
aggregate sentence was harsh and excessive. Consistent with the foregoing
cases, we conclude that Appellant failed to raise a substantial question with
respect to his excessiveness claim premised on the imposition of consecutive
sentences. See Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.
2012) (“[A] bald assertion that a sentence is excessive does not itself raise a
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substantial question justifying this Court’s review of the merits of the
underlying claim.”), appeal denied, 62 A.3d 378 (Pa. 2013); see also
Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004)
(explaining defendant did not raise a substantial question by merely
asserting sentence was excessive when he failed to reference any section of
Sentencing Code potentially violated by the sentence), appeal denied, 881
A.2d 818 (Pa. 2005).
Even if we were to determine that Appellant’s discretionary aspect of
sentencing claim raised a substantial question, we still would conclude that
he is not entitled to relief. “Although Pennsylvania’s system stands for
individualized sentencing, the court is not required to impose the ‘minimum
possible’ confinement.” Moury, 992 A.2d at 171 (citation omitted).
“Generally, Pennsylvania law affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. Any challenge
to the exercise of this discretion ordinarily does not raise a substantial
question.” Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.
2013); see also 42 Pa.C.S.A. § 9721(a) (providing that the court may
impose sentences “consecutively or concurrently”); Commonwealth v.
Johnson, 873 A.2d 704, 709 n.2 (Pa. Super. 2005) (noting that challenges
to the trial court’s discretion to impose consecutive or concurrent sentences
ordinarily does not raise a substantial question); Commonwealth v. Hoag,
665 A.2d 1212, 1214 (Pa. Super. 1995) (stating that an appellant is not
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entitled to a “volume discount” for his crimes by having all sentences run
concurrently). “The imposition of consecutive, rather than concurrent,
sentences may raise 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.”
Moury, 992 A.2d at 171-72 (citation omitted).
Instantly, as mentioned, Appellant requests a volume discount for
committing multiple crimes over a short period time because he claims that
he has accepted responsibility and committed those crimes under the
influence of drugs. Appellant’s Brief at 5. Other than this bald assertion,
Appellant makes no attempt to articulate any other reasons why the
consecutive sentences in this case are harsh and excessive. Moreover,
Appellant does not argue that his aggregate sentence of 66 to 132 months’
imprisonment represents an “extreme circumstance.” On the contrary,
Appellant acknowledges that his sentence for each crime was in the standard
range of the guidelines. Thus, we conclude that the trial court acted within
its discretion in imposing consecutive sentences after reviewing the record
and the presentence investigation report (“PSI”) sub judice. We note that
[w]here the sentencing court had the benefit of a [PSI],
we can assume the sentencing court was aware of the relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.
Further, where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.
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Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (citations
and internal quotation marks omitted), appeal denied, 76 A.3d 538 (Pa.
2013). Indeed, Appellant’s counsel at sentencing acknowledged that
Appellant’s prior record was “fairly extensive.” N.T. Sentencing, 9/26/16, at
9. Discerning no abuse of discretion by the trial court, we will not disturb
Appellant’s sentences on appeal.
We have conducted an independent review of the record and
addressed Appellant’s argument on appeal. Based on our conclusions above,
we agree with counsel that the sentencing issue Appellant seeks to litigate in
this appeal is wholly frivolous. Also, we do not discern any non-frivolous
issues that Appellant could have raised. We, therefore, grant counsel’s
petition to withdraw and affirm the judgments of sentence.
Judgments of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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