Commonwealth v. Cook

J-S68036-17
2017 PA Super 371

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PATRICK L. COOK, :
:
Appellant : No. 386 MDA 2017

Appeal from the Judgment of Sentence February 2, 2017
in the Court of Common Pleas of Mifflin County,
Criminal Division, at No(s): CP-44-CR-0000087-2013
CP-44-CR-0000517-2012

BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED NOVEMBER 21, 2017

Patrick L. Cook (Appellant) appeals from the aggregate judgment of

sentence of ten to 20 years of imprisonment for his convictions for various

sex crimes. Appellant’s counsel has filed a petition to withdraw and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the

judgment of sentence and grant counsel’s petition to withdraw.

On November 13, 2013, following a jury trial at which
Appellant proceeded pro se, but with the assistance of standby
counsel, Appellant was convicted of aggravated indecent assault,
indecent assault, and corruption of minors. The offenses were
perpetrated between November 2004 and September 2007, and
involved two females who were less than thirteen years of age.
Another offense occurred in July 2010, and involved one of the
earlier victims.

Appellant appeared pro se at sentencing, but again had the
benefit of appointed standby counsel. The trial court imposed an

*Retired Senior Judge assigned to the Superior Court.
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aggregate sentence of eleven to twenty-two years [of]
imprisonment based on the application of two five to ten year
mandatory minimum sentences for aggravated indecent assault
on a child less than thirteen years old. Appellant, who had been
determined to be a sexually violent predator, was also advised of
the lifetime reporting requirements and what that entailed.

Following pronouncement of sentence, the court advised
Appellant of his post-sentence and appeal rights. Specifically,
Appellant was told that he had the right to file a written post-
sentence motion within ten days stating the particular relief
sought. The court also advised Appellant that he had the same
right to assigned counsel as has existed through sentencing. If
he chose not to file a post-sentence motion, the court explained
that he had the option to appeal to the Superior Court within
thirty days. Appellant was provided with a written
acknowledgement of post-sentence procedures. …

Appellant did not file a direct appeal from judgment of
sentence. Rather, on February 23, 2015, he filed a timely pro se
PCRA petition.

Commonwealth v. Cook, 159 A.3d 58 (Pa. Super. 2016) (unpublished

memorandum at 1-3) (footnote, quotation marks, and citations omitted).

Matthew A. McClenahen, Esquire was appointed to represent

Appellant, and he filed an amended petition. Attorney McClenahen

requested and was granted leave to withdraw, resulting in the appointment

of Stephen P. Trialonas, Esquire. In his PCRA petition, Appellant challenged

the validity of his waiver of the right to counsel and the denial of his request

to have standby counsel assume representation at trial. Upon appeal from

denial of his PCRA petition, this Court denied Appellant relief on his counsel-

related issues, both because Appellant waived the claims by failing to pursue

them in a direct appeal, and because it found no merit to them in any event.

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Id. at 7-15. However, this Court sua sponte vacated his judgment of

sentence, which included two unconstitutional mandatory minimum

sentences, and remanded for resentencing. Id. at 17.

Pursuant to this Court’s directive, the trial court resentenced Appellant

on February 2, 2017, without consideration of the mandatory minimum

statutes, and imposed an aggregate sentence of ten to 20 years of

imprisonment. Appellant did not file a post-sentence motion. On February

20, 2017, Appellant filed a notice of appeal. The trial court ordered

Appellant to file a concise statement of errors complained of on appeal.

Pursuant to Pa.R.A.P. 1925(c)(4), Attorney Trialonas instead filed a

statement of intent to file an Anders brief.

In this Court, Appellant’s counsel filed both an Anders brief and a

petition to withdraw as counsel. Accordingly, the following principles guide

our review of this matter.

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 any
additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to

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withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

[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.

Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied with the technical

requirements set forth above. We note that Appellant filed a response to

counsel’s motion, but does not raise any issues that are not addressed in the

Anders brief. Compare Anders Brief at 5 (questions B-F) with Pro Se

Response at ¶¶ A-E. Accordingly, we now conduct an independent review to

determine whether we agree that the issues raised by counsel are wholly

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frivolous. Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super.

2015) (“[W]hen an appellant, either acting pro se or through private

counsel, files a response to the Anders brief, our independent review is

limited to those issues raised in the Anders brief. We then review the

subsequent pro se or counseled filing as we do any advocate’s brief.”).

Counsel presents the following issues:

A. Whether Appellant’s claim that his sentence, imposed … on
February 2, 2017, in response to this Court’s decision to remand
Appellant’s case for resentencing under Alleyne v. United
States, 33 S.Ct. 2151 (2013), was improper fails to present an
issue of merit for review by this Court?

B. Whether Appellant’s claim with respect to the credibility of
witnesses on the basis of their inconsistent statements fails to
present an issue of merit for review by this Court?

C. Whether Appellant’s claim that the Commonwealth failed
to satisfy [its] burden of proof at the time of trial fails to present
an issue of merit for review by this Court?

D. Whether Appellant’s claim with regard to perjury within the
record fails to present an issue of merit for review by this Court?

E. Whether Appellant’s claim that the Commonwealth of
Pennsylvania engaged in subornation of perjury with regard to
the victims at the time of trial fails to present an issue of merit
for review by this Court?

F. Whether Appellant’s claim that individuals, on behalf of
Franklin and Mifflin County, Pennsylvania, conspired to violate
his constitutional rights under U.S. v. Barr, 963 F.2d 641 ([3rd
Cir. ]1992) fails to present an issue of merit for review by this
Court?

Anders Brief at 4-5 (suggested answers omitted).

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We begin our independent review with the issue of the propriety of

Appellant’s sentence. First, we see no viable challenge to the legality of

Appellant’s sentence, as he was resentenced without consideration of any

unconstitutional mandatory minimum sentence, within the statutory limits

for each offense, and was given credit for time served. See Anders Brief at

10-11; N.T., 2/2/2017, at 6-8.

Regarding possible challenges to the discretionary aspects of

Appellant’s sentence, the following principles apply.

An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:

(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).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

Here, Appellant made no challenge to his sentence either at the

sentencing hearing or in a post-sentence motion. Accordingly, no

discretionary-aspects claim has been preserved for our review, rendering it

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frivolous. Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super.

2008) (“[T]his issue has been waived. Having been waived, pursuing this

matter on direct appeal is frivolous.”). Moreover, we discern no substantial

question that sentencing norms were ignored: Appellant received mostly-

concurrent, standard-range sentences,1 aggregating to a lower sentence

than was imposed originally.2 Therefore, we agree with counsel that there

are no non-frivolous challenges Appellant is able to raise in this appeal

regarding his February 2, 2017 sentence.

In Appellant’s next four issues, he seeks to challenge events that took

place during the guilt phase of his trial, such as the sufficiency of the

evidence and the credibility of the witnesses. Anders Brief at 11-13.

Appellant had the opportunity raise these issues in a direct appeal from his

original judgment of sentence, but he chose not to file one. He cannot now,

following remand for the limited purpose of correcting an illegal sentence,

litigate claims that fall outside the scope of the remand. See

1 Indeed, given Appellant’s prior record score of five and offense gravity
scores of ten for the aggravated indecent assaults of the pre-teen victims,
even the mandatory minimum sentences originally imposed were at the low
end of the standard range. N.T., 2/2/2017, at 2.
2
Because Appellant received a lesser aggregate term of incarceration upon
resentencing, our independent review does not reveal any suggestion of
judicial vindictiveness regarding his new sentence. Cf. Commonwealth v.
Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1999) (“Where a subsequent
sentence imposes a greater penalty than previously was imposed, a
presumption of vindictiveness attaches.”).

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Commonwealth v. McKeever, 947 A.2d 782, 785–86 (Pa. Super. 2008)

(holding that defendant who, after choosing not to complete a direct appeal,

had one of several convictions vacated in federal court and the cases

remanded for resentencing, was permitted in the direct appeal following

resentencing, “to raise issues pertaining only to the re-sentencing procedure

itself; his underlying claims of trial error regarding his non-vacated

convictions could not be addressed on direct appeal from re-sentencing”);

Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002)

(“[H]aving been re-sentenced following remand, appellant could not file

another direct appeal attacking his conviction: the only issues reviewable in

a direct appeal would be challenges to the sentence imposed following

remand.”); Commonwealth v. Harper, 436 A.2d 1217, 1219–20 (Pa.

Super. 1981) (finding failure to file a direct appeal resulted in waiver of

claims that could have been raised therein). Therefore, we agree with

counsel that raising the waived claims presented in questions B though E in

this appeal would be frivolous. Kalichak, 943 A.2d at 291.

Appellant’s final claim is that the counties of Mifflin and Franklin

somehow conspired to violate Appellant’s constitutional rights pursuant to

U.S. v. Barr. Anders Brief at 13. Counsel offered the following analysis of

this claim.

Undersigned counsel cannot, after careful review, discern
support from the record to show a conspiracy between any
actors in Appellant’s trial or proceedings, let alone Franklin and

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Mifflin counties. Nor can undersigned counsel discern support
from Barr to support a claim of relief in Appellant’s case on the
basis of any such conspiracy. Rather, Barr dealt with conspiracy
between defendants, who formerly worked for the Justice
Department, with regard to possession of cocaine―not
conspiracy of the Justice Department itself to enforce an illegal
or unconstitutional conviction upon the defendants. See Barr,
963 F.2d at 643-644. Instead, the [Third Circuit Court of
Appeals] in Barr remanded the case for resentencing based
upon an extreme deviation from the United States Sentencing
Guidelines without notice to the defendant. Id. at 656. In
Appellant’s case, the trial court during resentencing gave
[Appellant] the lowest sentencing range he could receive under
the guidelines, without deviation, and as such, this issue does
not fall under Barr, and further, lacks merit for review.

Id. at 13-14.

We likewise fail to see the relevance of Barr to the instant case or any

indication in the record that agents of the two counties in which Appellant

assaulted his victims in any way conspired against him.3 Hence, we agree

3 The only indication that we have found that Appellant raised any
conspiracy-type claim in the trial court is a motion that Appellant filed pro se
in 2013 shortly before his original sentencing hearing. Therein, Appellant
contended that: four of his prior attorneys provided ineffective assistance of
counsel in not raising the issue that Appellant was never interviewed “by
MCPD” to protest his innocence; the Commonwealth violated his speedy trial
rights under Pa.R.Crim.P. 600 and his former attorneys caused him to lose
his Rule 600 motion by allowing the district attorney “to dictate the
situation;” he was tried without being arraigned in the Mifflin County Court
of Common Pleas; and the trial judge treated him unfairly by proceeding
with an arraignment after granting counsel’s motion to withdraw. Motion for
Dismissal, 9/3/2013, at 1-2 (pages unnumbered). To the extent that the
alleged ineffective assistance of all of his attorneys constitutes the
“conspiracy” Appellant wishes to raise, that claim cannot be litigated in a
direct appeal. Commonwealth v. Williams, 959 A.2d 1252, 1259 (Pa.
Super. 2008) (“[C]laims of ineffective assistance of trial counsel may not be
raised on direct appeal but, rather, must be litigated on collateral review
(Footnote Continued Next Page)

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with counsel that raising Appellant’s conspiracy claim in this appeal is

frivolous.

We have conducted an independent review of all of the issues

identified by counsel in his Anders brief and agree that none has arguable

merit. Further, we have reviewed Appellant’s pro se response, and

determined that it raises no new arguments. Accordingly, we grant

counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.

Bennett, 124 A.3d at 334.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2017

(Footnote Continued) _______________________

under the [PCRA].”). Appellant waived the remainder of the claims by not
pursuing them on a direct appeal from his original sentence. McKeever,
947 A.2d at 785–86; Anderson, 801 A.2d at 1266.

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