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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHARLES THOMAS WENGERT, JR. :
:
Appellant : No. 1088 MDA 2018
Appeal from the Judgment of Sentence Entered June 4, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001992-2017
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 21, 2019
Appellant, Charles Thomas Wengert, Jr., appeals from the judgment of
sentence imposed on June 4, 2018, in the Berks County Court of Common
Pleas following the revocation of his probation. Appellant’s counsel has filed a
petition to withdraw 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 withdrawal from representation on direct appeal.
Appellant filed a pro se purported response to counsel’s petition to withdraw
on November 14, 2018.1 Following our review, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
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1 Appellant’s pro se “response” curiously seeks “an investor” from the “Berks
County Medical Marijuana Industry” to “open a bank account for” his son.
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On March 28, 2017, Appellant was charged with one count each of
possession of a controlled substance, 35 P.S. § 780-113(a)(16), and
possession of drug paraphernalia, 35 P.S. § 780-113(a)(32), at Berks County
Docket Number CP-06-CR-0001992-2017. On May 2, 2017, trial of these
charges was consolidated with Appellant’s other pending charges at Berks
County Docket Number CP-06-CR-0001991-2017.2 On September 20, 2017,
Appellant pled guilty at both docket numbers. At docket number CP-06-CR-
0001992-2017, Appellant pled guilty to one count of possession of a controlled
substance, methamphetamine, and the trial court sentenced Appellant to three
years of probation to be served consecutive to the sentence imposed at docket
number CP-06-CR-0001991-2017.3
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Letter to Commonwealth of Pennsylvania and Superior Court of Pennsylvania,
11/14/18. In addition, by separate letter addressed to the trial court, Appellant
maintains that “by law [he] is entilted [sic] to be assigned new counsel to [his]
case. . . .” Letter to trial court, 11/14/18. Appellant is incorrect. Appellant is
not entitled to different court-appointed counsel; rather, “Appellant is entitled
only to retain new counsel or to proceed pro se should he choose to do so.”
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Appellant’s response offers nothing substantive regarding his case.
2 Because the instant appeal involves only docket number CP-06-CR-0001992-
2017, the record does not reveal the charges filed at docket number CP-06-
CR-0001991-2017. In his brief, Appellant describes the charges for this docket
as two counts each of terroristic threats, 18 Pa.C.S. § 2706(a)(1), simple
assault, 18 Pa.C.S. § 2701(a)(3), harassment, 18 Pa.C.S. § 2709(a)(2),
harassment, 18 Pa.C.S. § 2709(a)(3), and four counts harassment, 18 Pa.C.S.
§ 2709(a)(2). Anders Brief at 8 n.3.
3 Appellant was sentenced to time served of 169 days to twenty-three months
at docket number CP-06-CR-0001991-2017. N.T., 6/4/18, at 6–7.
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At Appellant’s June 4, 2018 Gagnon II4 hearing,5 the Commonwealth
noted that Appellant had been detained for failing to: report, notify change of
residence, and comply with chemical testing.6 N.T., 6/4/18/ at 2; see Post
Sentence Motion, 6/14/18, at ¶ 3. Appellant admitted the probation violations,
the sentencing court revoked Appellant’s probation, and it imposed a sentence
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4 Gagnon v. Scarpelli, 411 U.S. 778 (1978).
5 At the hearing, Appellant questioned why the violations affected his
probationary sentence at docket number CP-06-CR-0001992-2017, in that he
was not yet serving the probationary sentence. N.T., 6/4/18, at 2–3, 6.
Rather, at that time, he was on parole for the sentence imposed at docket
number CP-06-CR-0001991-2017. While this is not raised as an issue on
appeal, in light of counsel’s motion to withdraw, it is prudent that we comment.
In Commonwealth v. Ware, 737 A.2d 251 (Pa. Super. 1999), this Court
explained that the trial court had the authority to revoke the appellant’s
probation despite the fact that at the time of revocation, the appellant had not
yet begun to serve the probationary term “and even though the offense upon
which the revocation of probation was based occurred during the parole period
and not the probationary period.” Id. at 253. Citing Commonwealth v.
Wendowski, 420 A.2d 628 (Pa. Super. 1980), we explained that a term of
probation “may and should be construed for revocation purposes as including
the term beginning at the time probation is granted. Otherwise, having been
granted probation[,] a defendant could commit criminal acts with impunity—
as far as revocation of probation is concerned—until he commenced actual
service of the probationary period.” Ware, 737 A.2d at 254 (quoting
Wendowski, 420 A.2d at 630). The Ware court emphasized, “[T]he
expressed intent of the [c]ourt to have [a defendant] under probation
beginning at a future time does not ‘change his position from the possession
of a privilege to the enjoyment of a right.’” Ware, 737 A.2d at 254 (quoting
Burns v. United States, 287 U.S. 216, 222 (1932)). Once the court revoked
the appellant’s probation, “it had the same sentencing options available that
existed at the time of the original sentencing.” Ware, 737 A.2d at 254.
6 The April 17, 2018 detainer filed by Berks County Adult Probation and Parole
Officer Michael Futrick is not in the record certified to us on appeal.
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of incarceration of eleven and one-half to twenty-three months, this time
concurrent with the sentence imposed at docket number CP-06-CR-0001991-
2017.7 Appellant timely filed a post-sentence motion, which the sentencing
court denied on June 14, 2018. This timely appeal followed. Both Appellant
and the sentencing court complied with Pa.R.A.P. 1925.
Before we address any question raised on appeal, we first 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
requirements imposed upon an attorney who seeks to withdraw on 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 addition, our Supreme Court, in Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), stated that an Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record;
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7 At docket number CP-06-CR-0001991-2017, the sentencing court revoked
Appellant’s parole and “recommitted him to serve the maximum sentence or
until such time as he can put forward an acceptable parole plan.” N.T., 6/4/18,
at 10. Thus, Appellant was eligible to be paroled. Id. at 4, 10.
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(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 has complied with the requirements for withdrawal outlined in
Anders and Santiago. Specifically, counsel requested to withdraw based
upon her determination that the appeal is “wholly frivolous,” and she stated
her reasons for that conclusion with appropriate support. Petition to Withdraw
as Counsel, 9/24/18, at ¶¶ 4–5. Additionally, counsel sent a letter to Appellant,
and she attached a copy of the letter to her motion. Counsel states that she
informed Appellant that she has filed a motion to withdraw and an Anders
brief, and she apprised Appellant of his rights in light of the motion to withdraw
as counsel. Thus, Appellant’s appellate counsel has satisfied the requirements
of Anders and Santiago. We thus conclude that the procedural and briefing
requirements for withdrawal have been met.
Counsel for Appellant has indicated that after review of the certified
record, there are no meritorious issues. Anders Brief at 15. However, counsel
does set forth one possible issue on Appellant’s behalf: “Whether the trial
court abused its discretion when it imposed a sentence of eleven and one-half
(11 1/2) to twenty-three (23) months for Appellant’s first technical probation
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violations at his Gagnon II hearing[?]” Anders Brief at 7. Appellant maintains
that the sentence imposed “did not meet the governing principles in the
Sentencing Guidelines,” and it was “manifestly unreasonable even though it
was within the standard range.” Id. at 15.
This issue presents a challenge to the discretionary aspects of Appellant’s
sentence. Challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right, and his challenge in this regard is properly
viewed as a petition for allowance of appeal. 42 Pa.C.S. § 9781(b);
Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987); Commonwealth
v. Sierra, 752 A.2d 910 (Pa. Super. 2000). An appellant challenging the
discretionary aspects of his sentence must satisfy a four-part test. We
evaluate: (1) whether Appellant filed a timely notice of appeal; (2) whether
Appellant preserved the issue at sentencing or in a motion to reconsider and
modify sentence; (3) whether Appellant’s brief includes a concise statement of
the reasons relied upon for allowance of appeal; and (4) whether the concise
statement raises a substantial question that the sentence is appropriate under
the Sentencing Code. Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725
(Pa. Super. 2013). An appellant must articulate the reasons the sentencing
court’s actions violated the Sentencing Code. Commonwealth v. Moury, 992
A.2d 162 (Pa. Super. 2010); Sierra, 752 A.2d at 912–913.
In the instant case, Appellant filed a timely appeal, and the issue was
properly preserved in his post-sentence motion. Moreover, the Anders brief
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contains a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence pursuant to Pa.R.A.P.
2119(f). Thus, we consider whether the concise statement raises a substantial
question.
Herein, Appellant asserts that his sentence of confinement, which is in
excess of the original sentence, raises a substantial question. Anders Brief at
12 (citing Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000)).
Appellant maintains that the trial court failed to consider the requirements of
42 Pa.C.S. § 9771(c). Anders Brief at 14. Additionally, he contends that he
has raised a substantial question by his allegation that the sentence was so
excessive that it violates the general principles underlying the Sentencing
Guidelines.8 Id. at 13. In particular, Appellant suggests the sentencing court
failed to properly weigh the general principles that the sentence imposed is
consistent with the protection of the public, the gravity of the offense, and
Appellant’s rehabilitative needs. Id. at 14 (citing 42 Pa.C.S. § 9721(b)). “[T]o
the extent [Appellant] challenges the sentencing court’s failure to consider
Section 9721(b) factors,” Appellant raises a substantial question.
Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016).
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8 We note that in revocation proceedings, the sentencing guidelines do not
apply. Commonwealth v. Pasture, 107 A.3d 21, 27 (2014); 204 Pa. Code.
§ 303.1(b).
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Additionally, a claim that “a sentence is manifestly excessive such that it
constitutes too severe a punishment raises a substantial question.” Id.
Our Supreme Court detailed the sentencing court’s duty upon revocation
of probation and resentencing, as follows:
At initial sentencing, all of the rules and procedures designed to
inform the court and to cabin its discretionary sentencing authority
properly are involved and play a crucial role. However, it is a
different matter when a defendant reappears before the court for
sentencing proceedings following a violation of the mercy bestowed
upon him in the form of a probationary sentence. For example, in
such a case, contrary to when an initial sentence is imposed, the
Sentencing Guidelines do not apply, and the revocation court is not
cabined by Section 9721(b)’s requirement that “the sentence
imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721. See
Commonwealth v. Reaves, 592 Pa. 134, 150, 923 A.2d 1119,
1129 (2007) (citing 204 Pa.Code. § 303.1(b) (Sentencing
Guidelines do not apply to sentences imposed as result of
revocation of probation)).
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
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(3) such a sentence is essential to vindicate the
authority of the court.
42 Pa.C.S. § 9771(c).
Moreover, 42 Pa.C.S. § 9721(b) specifies that in every case
following the revocation of probation, “the court shall make as a
part of the record, and disclose in open court at the time of
sentencing, a statement of the reason or reasons for the sentence
imposed.” See also Pa.R.Crim.P. 708(C)(2) (indicating at the time
of sentence following the revocation of probation, “the judge shall
state on the record the reasons for the sentence imposed.”).
However, following revocation, a sentencing court need not
undertake a lengthy discourse for its reasons for imposing a
sentence or specifically reference the statutes in question. Simply
put, since the defendant has previously appeared before the
sentencing court, the stated reasons for a revocation sentence
need not be as elaborate as that which is required at initial
sentencing. The rationale for this is obvious. When sentencing is
a consequence of the revocation of probation, the trial judge is
already fully informed as to the facts and circumstances of both
the crime and the nature of the defendant, particularly where, as
here, the trial judge had the benefit of a [presentence investigation
(“PSI”)] during the initial sentencing proceedings. See
[Commonwealth] Walls, 592 Pa. [557] at 574 n.7, 926 A.2d
[957] at 967 n.7 [(2007)] (“Where PSI exists, we shall continue to
presume that the sentencing judge was aware of the relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.”).
* * *
We emphasize a trial court does not necessarily abuse its discretion
in imposing a seemingly harsher post-revocation sentence where
the defendant received a lenient sentence and then failed to adhere
to the conditions imposed on him. See [Commonwealth v.]
Reaves, 592 Pa. [134] at 138 n.5, 923 A.2d [1119] at 1122 n.5
[(2007)]. In point of fact, where the revocation sentence was
adequately considered and sufficiently explained on the record by
the revocation judge, in light of the judge’s experience with the
defendant and awareness of the circumstances of the probation
violation, under the appropriate deferential standard of review, the
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sentence, if within the statutory bounds, is peculiarly within the
judge’s discretion.
Pasture, 107 A.3d at 27–29 (footnotes omitted).
The sentencing court possessed a multitude of information relevant to
Appellant and considered all of the factors bearing on Appellant’s sentence.
The sentencing court explained:
Here, this [c]ourt considered the Appellant’s presentence
investigation report, nature of the offense, Appellant’s allocution,
Appellant’s rehabilitative needs and the sentencing guidelines
before sentencing the Appellant. See Gagnon II Hearing, Notes
of Testimony (“N.T.”), June 4, 2018. Considering Appellant’s prior
record score (R-fel) and the sentencing guidelines, a standard
range sentence for possession of methamphetamine is 12 to 18
months of incarceration. At Count 1, Possession of a Controlled
Substance, Methamphetamine, the Appellant was sentenced to 11
and a half to 23 months of incarceration. This sentence was within
the guidelines.
Although the Appellant admitted his violation of the
probation, Appellant failed to provide any specific reasons to why
he did not follow the terms of his probation. See N.T. This [c]ourt
took into account the personal problems Appellant was having,
but made clear that that the main issue in the hearing was
addressing the Appellant’s probation and parole violation. N.T. at
9-10. Appellant’s counsel averred the violation was technical in
that no new crime has been committed. However, this [c]ourt
considered the Appellant’s rehabilitative needs as Appellant failed
to report and failed to comply with chemical testing. N.T. at 2.
This [c]ourt also considered the probation officer’s testimony
regarding Appellant harassing his father, ex-girlfriend, his
girlfriend’s current boyfriend, and most of all, Appellant going
back to the same place where his drug problems began. N.T. at
11. When the issue of Appellant’s prior employment history was
addressed, Appellant started listing his prior places of
employment. However, when this [c]ourt asked the Appellant
why such information was not reflected in the sentencing
investigation conducted May 23, 2017, Appellant failed to provide
any justifications. N.T. at 15-16.
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Sentencing Court Opinion, 8/7/18, at unnumbered 2–3.
Upon review, we conclude Appellant’s claim is meritless. Here, equipped
with a PSI, the sentencing court considered all of the factors Appellant
identifies as relevant to consideration of his personal circumstances and
characteristics. Moreover, we have independently reviewed the record in
order to determine if appellate counsel’s assessment about the frivolous
nature of the present appeal is correct. See Commonwealth v. Flowers,
113 A.3d 1246, 1250 (Pa. Super. 2015) (after determining counsel has
satisfied the technical requirements of Anders and Santiago, this Court must
conduct an independent review of the record to determine if there are
additional, non-frivolous issues overlooked by counsel). We conclude that an
appeal in this matter is frivolous. Accordingly, we grant appellate counsel
permission to withdraw and affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2019
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