J-S14014-19
J-S14015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES K. COLLINS, :
:
Appellant : No. 3021 EDA 2017
Appeal from the Judgment of Sentence August 4, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006827-2016
*****
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES K. COLLINS, :
:
Appellant : No. 3022 EDA 2017
Appeal from the Judgment of Sentence August 4, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000997-2017
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 23, 2019
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14014-19
J-S14015-19
James K. Collins appeals from a judgment of sentence, entered in the
Court of Common Pleas, after pleading guilty in two separate cases. 1 In CP-
23-CR-6827-2016, Collins pled guilty to delivery of a controlled substance (2
counts),2 criminal use of a communication facility (2 counts),3 and resisting
arrest.4 In CP-23-CR-887-2017, Collins pled guilty to drug delivery resulting
in death,5 delivery of a controlled substance,6 and involuntary manslaughter.7
Counsel has petitioned this Court to withdraw from his representation of
Collins pursuant to Anders and Santiago.8 Upon review, we find Collins’
appeals frivolous; we affirm Collins’ judgments of sentence and grant
counsel’s petitions to withdraw.
____________________________________________
1 This Court has opted to consolidate both appeals. When the same question
is involved in two or more appeals in different cases, the appellate court may,
in its discretion, treat them as a single appeal. Pa.R.A.P. 513. Briefs for both
appeals raise the same issue and have near identical paginations; they will be
cited to collectively as “Appellant’s Briefs.”
2 35 P.S. § 780-113(a)(30).
3 18 Pa.C.S.A. § 7512.
4 18 Pa.C.S.A. § 5104.
5 18 Pa.C.S.A. § 2506(a).
6 35 P.S. § 780-113(a)(30).
7 18 Pa.C.S.A. § 2504(a).
8 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
-2-
J-S14014-19
J-S14015-19
On October 1, 2016, Collins sold 3-methylfentanyl9 to Mathew Ettien.
On October 2, 2016, Ettien was found dead in in his bathroom due to a drug
overdose. On October 3, 2016, Collins sold 3-methylfentanyl to an undercover
officer. Collins was arrested on October 4, 2016. He was charged with the
above mentioned crimes. On June 2, 2017, Collins entered open guilty pleas
in both cases to the above offenses. On August 4, 2017, the trial court entered
its sentencing order, which it then amended on August 9, 2017. The
aggregate sentence for both cases was 19¼ to 38½ years’ incarceration. On
August 14, 2017, Collins filed a motion for reconsideration of sentence in each
case. The motions were denied and these appeals followed in which counsel
has sought permission to withdraw from his representation of Collins.
In order to withdraw pursuant to Anders, counsel must: (1) petition the
Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguable support an
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief raising any additional
points that the appellant deems worthy of review. Commonwealth v.
Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In addition, counsel must
also state his reasons for concluding his client’s appeal is frivolous. Santiago,
978 A.2d at 361.
____________________________________________
9 3-methylfentanyl is an opioid between 300 to 6,000 times more powerful
than morphine. N.T. Sentencing, 8/4/17, at 49.
-3-
J-S14014-19
J-S14015-19
Here, counsel’s petitions state that he has made an examination of the
record and concluded the appeals are wholly frivolous. For each case, counsel
indicates that he supplied Collins with a copy of the brief and a letter
explaining his rights to proceed pro se, or with privately retained counsel, and
to raise any other issues he believes might have merit.10 Counsel has also
submitted briefs, setting out the issues raised by Collins and, pursuant to the
dictates of Santiago, and explained why he believes the appeals to be
frivolous. Thus, counsel has substantially complied with the requirements for
withdrawal.
Counsel having satisfied the above requirements, this Court must
conduct its own review of the proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 737 (Pa. Super. 2004).
Collins claims that, “the judgment of sentence is harsh and excessive
where the lower court sentenced entirely in consecutive fashion when all the
mitigating evidence called for a concurrent scheme.” Appellant’s Briefs, at 3
(unnecessary capitalization removed).
Collins’ claim represents a challenge to the discretionary aspects of his
sentence. An appeal from a discretionary aspects of sentencing claim is not
guaranteed of right; rather, a defendant’s appeal is considered a petition for
permission to appeal. Commonwealth v. Williams, 562 A.2d 1385, 1386-
____________________________________________
10Collins has not submitted any additional or supplemental filings to this
Court.
-4-
J-S14014-19
J-S14015-19
87 (Pa. Super. 1989) (en banc). An objection to a discretionary aspect of
sentencing is waived if it is not raised at the sentencing hearing or in a motion
to modify sentencing. Commonwealth v. Anderson, 830 A.2d 1013, 1013
(Pa. Super. 2003). An appellant who challenges the discretionary aspects of
his sentence must include in his brief a concise statement of the reasons relied
upon for allowance of appeal. Pa.R.A.P. 2119(f). In addition, appellate review
will only be granted if the appellant raises a substantial question. 42 Pa.C.S.A.
§ 9781(b); Commonwealth v. Byrd, 657 A.2d 961, 963 (Pa. Super. 1995);
Williams, 562 A.2d at 1387. The existence of a substantial question must be
determined on a case-by-case basis. Commonwealth v. Cruz-Centeno,
668 A.2d 536, 545 (Pa. Super. 1995).
Here, Collins filed post-sentence motions to reconsider his sentence,
followed by timely notices of appeal. Additionally, he has included in each of
his briefs a concise statement of reasons relied upon for appeal pursuant to
Rule 2119(f). Accordingly, we must now determine whether Collins has raised
a substantial question for our review.
In his Rule 2119(f) statement, Collins asserts that “the lower court
manifestly abused [its] discretion when it ran all the sentences imposed
consecutive to each other even though the myriad [] mitigating factors put
forth by [Collins] suggested a concurrent scheme.” Appellant’s Briefs, at 7.
Specifically, Collins argues the mitigating factors “include the fact that he
expressly accepted his responsibility for committing the crimes for which he
-5-
J-S14014-19
J-S14015-19
was sentenced, his clearly stated motivation to be rehabilitated and his
genuine remorse.” Appellant’s Briefs, at 8.
This Court has held that an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question. See Commonwealth v. Raven, 97 A.3d 1244 (Pa.
Super. 2013); see also Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.
Super. 2012) (finding trial court’s failure to consider “acceptance of
responsibility, expression of remorse, and amenability to rehabilitation” raises
a substantial question). Accordingly, we will consider Collins’ claim.
Our standard of review of the discretionary aspects of a sentence 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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Additionally, our review of the discretionary aspects of a sentence is confined
by the statutory mandates of 42 Pa.C.S.A. §§ 9871(c) and (d).
We must vacate a sentence if the trial court erroneously applied the
guidelines, if the circumstances would cause the application of the guidelines
to be clearly unreasonable, or if the court sentenced outside the guidelines in
-6-
J-S14014-19
J-S14015-19
an unreasonable manner. 42 Pa.C.S.A. § 9871(c). In reviewing the record
we consider:
1) The nature and circumstances of the offense and the history and
characteristics of the defendant.
2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
3) The findings upon which the sentence was based.
4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9871(d).
Collins concedes that the sentences are legal and within the standard
range. Appellant’s Briefs, at 8. Therefore, he must demonstrate that the
application of the guidelines was clearly unreasonable. 42 Pa.C.S.A. §
9871(c)(2). He has failed to do so.
The Honorable John P. Capuzi sentenced Collins within the standard
range. He also chose for those sentences to run consecutively instead of
concurrently. At the sentencing hearing, Judge Capuzi had access to a pre-
sentence investigation report. When a sentencing court has the benefit of a
pre-sentence, we “presume that the court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with any mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839,
842 (Pa. Super. 2014). Furthermore, imposing a consecutive rather than a
concurrent sentence is within the sound discretion of the sentencing court.
-7-
J-S14014-19
J-S14015-19
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (citations
omitted).
The court had informed Collins of the maximum sentence during the
plea but noted that he did not know how severe the sentence would be. N.T.
Sentencing, 8/4/17, at 48. The court also believed that Collins was expressing
remorse. Id. at 49. However, the court found these factors outweighed by
other circumstances. Id. at 48. Specifically, the court noted that: Collins
had been selling drugs since he was a juvenile, id. at 49; Collins should have
been aware of the risk in which he was placing others, id. at 48-49; Collins
had been provided treatment for drug addiction but did not take advantage of
it, id. at 49; and Collins had a high risk of reoffending. Id. at 51.
The decision to impose a consecutive sentences was well within the
discretion of the sentencing court. See Zirkle, 107 A.3d at 133. In light of
the foregoing, we cannot conclude that the sentence is clearly unreasonable
or that the sentencing court failed to consider Collins’ mitigating
circumstances. We find no abuse of discretion. See Shugars, 895 A.2d at
1275.
Judgments of sentence affirmed; petitions to withdraw granted.
-8-
J-S14014-19
J-S14015-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/19
-9-