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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD TERANTINO,
Appellant No. 44 EDA 2017
Appeal from the Judgment of Sentence Entered August 6, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001848-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 31, 2017
Appellant, Edward Terantino, appeals nunc pro tunc from the August
6, 2015 judgment of sentence of 48 to 96 months’ incarceration.
Additionally, Appellant’s counsel, Hillary A. Madden, Esq., seeks to withdraw
her representation of Appellant. After careful review, we affirm Appellant’s
judgment of sentence and grant counsel’s petition to withdraw.
In March of 2014, Appellant was convicted, following a jury trial, of
involuntary deviate sexual intercourse (of a person less than 16 years of
age) (hereinafter, “IDSI”), statutory sexual assault, and aggravated indecent
assault (of a person less than 16 years of age).1 Appellant’s convictions
stemmed from his sexual assault of his 14-year-old stepdaughter
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1 18 Pa.C.S. §§ 3123(a)(7), 3122.1, and 3125(8), respectively.
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(hereinafter “the victim”) in June of 1998. Appellant was 46 years’ old at
the time of the assault. Appellant’s abuse of the victim was not revealed
until September of 2013, during the investigation of Appellant’s kidnapping
the victim and her 5 year old daughter.2 Appellant was sentenced on May
30, 2014, to an aggregate term of 9 to 18 years’ incarceration, which
included a mandatory minimum sentence of 5 years’ incarceration, pursuant
to 42 Pa.C.S. § 9718, for Appellant’s IDSI conviction.
Appellant filed a timely direct appeal and, while this Court found
meritless the sole issue he presented therein (a claim that the trial court
erred by allowing certain expert testimony), we sua sponte vacated
Appellant’s mandatory minimum sentence under section 9718, as that
statute has been struck down as unconstitutional in the wake of Alleyne v.
United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts that
increase mandatory minimum sentences must be submitted to the jury” and
found beyond a reasonable doubt). See Commonwealth v. Terantino,
No. 2311 EDA 2014, unpublished memorandum at 6-8 (Pa. Super. filed April
14, 2015) (relying on Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
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2 Appellant’s charges stemming from the kidnapping were tried separately
from the present sexual offenses, and he was ultimately convicted by a jury
of false imprisonment, terroristic threats, simple assault, unlawful restraint,
endangering the welfare of a child, possessing an instrument of crime, and
resisting arrest. He was sentenced to an aggregate term of 4 to 8 years’
incarceration in that case, and this Court affirmed his judgment of sentence
on April 6, 2015. See Commonwealth v. Terantino, No. 1662 EDA 2014,
unpublished memorandum (Pa. Super. filed April 6, 2015).
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2014), aff’d by, 140 A.3d 651 (Pa. 2016) (holding that 42 Pa.C.S. § 9718 is
unconstitutional pursuant to Alleyne)). Accordingly, we remanded
Appellant’s case for resentencing. See Terantino, No. 2311 EDA 2014,
unpublished memorandum at 8.
On remand, the trial court resentenced Appellant on August 6, 2015,
to a term of 4 to 8 years’ incarceration for his IDSI conviction, and to a
concurrent term of 2 to 4 years’ incarceration for his aggravated indecent
assault offense. His statutory sexual assault conviction merged for
sentencing purposes.
Appellant filed a timely motion for reconsideration of his sentence,
which the court denied. Appellant then filed a notice of appeal, but his
counsel at that time did not file a brief with this Court, resulting in
Appellant’s appeal being dismissed. Thereafter, the trial court appointed
Appellant new counsel, Attorney Madden, who filed a petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the
restoration of Appellant’s right to appeal from his resentencing. On October
28, 2016, the court granted Appellant’s petition and reinstated his right to
file a direct appeal. On November 23, 2016, Attorney Madden filed the nunc
pro tunc notice of appeal that is presently before this Court. Attorney
Madden also timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) statement, wherein she preserved the following three issues for our
review:
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1. The trial court erred in denying [Appellant’s] Motion to
Dismiss for lack of jurisdiction due to the expiration of the
statute of limitations.
2. The trial court erred in denying [Appellant’s] Motion to
Dismiss due to staleness and pre-arrest delay in violation of
[Appellant’s] constitutional rights to due process.
3. The trial court abused its discretion in imposing an excessive
sentence.
Pa.R.A.P. 1925(b) Statement, 12/14/16, at 1.
On March 6, 2017, Attorney Madden filed with this Court a petition to
withdraw as counsel. Therein, Attorney Madden erroneously stated that she
was seeking to withdraw under Commonwealth v. Turner, 544 A.2d 927
(Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc),3 rather than Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Attorney
Madden also failed to comply with the Anders/Santiago requirement that
she advise the appellant of his right to “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. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007). Accordingly, we concluded that Attorney Madden did
not satisfy the requirements of Anders/Santiago; therefore, we denied her
petition to withdraw and remanded for her to file either an advocate’s brief
on Appellant’s behalf, or a petition to withdraw and brief that complied with
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3 A Turner/Finley ‘no-merit’ letter is the appropriate filing when counsel
seeks to withdraw on appeal from the denial of PCRA relief. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
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Anders/Santiago. Attorney Madden filed a new petition to withdraw and
an Anders/Santiago brief on August 25, 2017. Appellant has not filed any
pro se response.
Accordingly, we now review Attorney Madden’s request to withdraw, as
[t]his Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief 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. 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. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
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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) (citations and footnote omitted).
In this case, Attorney Madden’s Anders/Santiago brief complies with
the above-stated requirements. Namely, she includes a summary of the
relevant factual and procedural history, she refers to portions of the record
that could arguably support Appellant’s claims, and she sets forth her
conclusion that Appellant’s appeal is frivolous. She also explains her reasons
for reaching that determination, and supports her rationale with citations to
the record and pertinent legal authority. Attorney Madden states in her
petition to withdraw that she has supplied Appellant with a copy of the
Anders/Santiago brief she filed with this Court on August 25, 2017, and
she also attached a letter directed to Appellant in which she informs him of
each of the rights enumerated in Nischan. Accordingly, counsel has
complied with the technical requirements for withdrawal. We will now
independently review the record to determine if Appellant’s issues are
frivolous, and to ascertain if there are any other non-frivolous issues
Appellant could pursue on appeal.
Appellant’s first two issues - as set forth in his Rule 1925(b)
statement, quoted supra - seek to challenge the trial court’s denial of his
pretrial “Motion to Dismiss.” In that motion, Appellant argued that the court
should dismiss all the charges filed against him “because (1) the statute of
limitations has expired and (2) the filing of the information was a violation of
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his right to due process because of staleness.” Trial Court Opinion, 1/23/14,
at 1.
We agree with Attorney Madden that it would be frivolous to raise
these claims on appeal, although for a different reason than that expressed
by counsel in her Anders/Santiago brief. See Anders/Santiago Brief at
18-22 (concluding that Appellant’s claims are frivolous because the statute
of limitations had not run on his offenses, and because he cannot
demonstrate that the delay in filing the charges against him was the fault of
the Commonwealth). This Court has held that, “where a case is remanded
to resolve a limited issue, only matters related to the issue on remand may
be appealed.” Commonwealth v. Lawson, 789 A.2d 252, 253 (Pa. Super.
2001). Here, a previous panel of this Court explicitly affirmed Appellant’s
convictions, but remanded his case for the limited purpose of resentencing
him without application of the mandatory minimum sentence set forth in 42
Pa.C.S. § 9718. See Terantino, No. 2311 EDA 2014, unpublished
memorandum at 8. Therefore, in the present appeal following that remand,
Appellant may only raise issues concerning his resentencing; he cannot
argue that the trial court erred by denying his pretrial motion to dismiss the
charges pending against him. Accordingly, Appellant’s first two issues are
frivolous.
In Appellant’s third issue, he seeks to argue that his sentence is
excessive.
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This issue concerns a challenge to the discretionary aspects of
Appellant's sentence. A challenge to the discretionary aspects of
sentencing does not entitle an appellant to review as of right.
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011) An appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction by satisfying a
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);5 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). Commonwealth v. Evans, 901 A.2d 528,
533 (Pa. Super. 2006).
5 In pertinent part, this Rule requires an appellant
challenging the discretionary aspects of his sentence to set
forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the
discretionary aspects of the sentence; such statement shall
immediately precede the argument on the merits.
Pa.R.A.P. 2119(f).
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super.
2016).
In the present case, Appellant filed a timely notice of appeal, and he
also preserved the following sentencing issue in his timely-filed post-
sentence motion: “[Appellant] believes the sentence imposed is excessive
base upon mitigating circumstances and the inconsistent jury verdict.”
Petition for Reconsideration of Sentence, 8/13/15, at 1. Attorney Madden
has not included a Rule 2119(f) statement in her Anders/Santiago brief;
however, “[w]here counsel files an Anders[/Santiago] brief, this Court has
reviewed the matter even absent a separate Pa.R.A.P. 2119(f) statement.
Hence, we do not consider counsel's failure to submit a Rule 2119(f)
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statement as precluding review of whether Appellant's issue is frivolous.”
Bynum-Hamilton, 135 A.3d at 184 (citation omitted).
Upon reviewing the record of Appellant’s resentencing hearing, we
agree with Attorney Madden that his sentencing claim is frivolous. To begin,
we note that,
[o]ur review of discretionary aspects of sentencing claims
implicates the following principles:
[T]he proper standard of review when considering whether
to affirm the sentencing court's determination is an abuse
of discretion....
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not 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.... An abuse of
discretion may not be found merely because an appellate
court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support
so as to be clearly erroneous.... The rationale behind such
broad discretion and the concomitantly deferential
standard of appellate review is that the sentencing court is
in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
(2007) (internal citations omitted).
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).
As Attorney Madden points out, in this case Appellant received a
sentence of 4 to 8 years’ (or 48 to 96 months’) incarceration for his
involuntary deviate sexual intercourse conviction. The standard range of the
applicable sentencing guidelines is a minimum term of 48 to 66 months’
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imprisonment. Therefore, Appellant’s sentence was at the low-end of the
standard range, which is precisely what defense counsel requested at the
resentencing hearing. See N.T. Resentencing Hearing, 8/6/15, at 3.
Moreover, in fashioning this standard range sentence, the court explicitly
stated that it considered the presentence report; thus, “we are required to
presume that the court properly weighed the mitigating factors present in
this case.” Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super.
2006). We also reiterate that the court imposed a concurrent - rather than
consecutive - term of 2 to 4 years’ incarceration for Appellant’s aggravated
indecent assault conviction, and no sentence was imposed for his statutory
sexual assault offense, as it merged with his other convictions. Thus, we
ascertain nothing ‘clearly unreasonable’ about the court’s standard-range
sentence in this case. See 42 Pa.C.S. § 9781(c)(2) (stating that we must
vacate the sentence and remand only where “the sentencing court
sentenced within the sentencing guidelines but the case involves
circumstances where the application of the guidelines would be clearly
unreasonable”).
We recognize that Appellant’s aggregate sentence in this case was
imposed to run consecutively to the sentence imposed in his kidnapping-
related case involving the victim and her daughter. At the resentencing
hearing, the court explained that it “felt that there should be a consecutive
sentencing because there were two separate and distinct crimes.” N.T.
Resentencing Hearing at 8. This Court has explained that, “[g]enerally,
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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) (citations
omitted). Having reviewed the record in this case, we see nothing atypical
about the court’s decision to impose Appellant’s current sentence to run
consecutively to his other term of incarceration. Appellant’s criminal conduct
in the kidnapping-related case was wholly separate from his instant
offenses, both substantively and temporally. Therefore, nothing in the
record suggests that the court abused its discretion by imposing Appellant’s
present sentence to run consecutively to the term of incarceration in his
other case.
In sum, we agree with Attorney Madden that the issues Appellant
seeks to present on appeal are frivolous. Accordingly, we affirm Appellant’s
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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