J-S15010-19 & J-S15011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMEYON MASSEY :
:
Appellant : No. 818 WDA 2018
Appeal from the Judgment of Sentence April 24, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003146-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMEYON MASSEY :
:
Appellant : No. 819 WDA 2018
Appeal from the Judgment of Sentence April 24, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003159-2017
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED APRIL 24, 2019
Appellant, Dameyon Massey, appeals from judgments of sentence
imposed after he pleaded guilty in two criminal cases. Appellant’s appellate
counsel has filed petitions to withdraw and Anders1 briefs, stating that the
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1 Anders v. California, 386 U.S. 738 (1967).
* Retired Senior Judge assigned to the Superior Court.
J-S15010-19 & J-S15011-19
appeals are wholly frivolous. After careful review, we grant counsel’s petitions
to withdraw and affirm.
The two criminal cases arose out of different events. In CP-25-CR-
0003146-2017 (No. 3146-2017), Appellant pleaded guilty to charges of
carrying a firearm without a license and reckless endangerment 2 from an
incident on March 21, 2017 when Appellant, who was not licensed to carry a
firearm, had a handgun in his possession and fired it at the occupants of a
car. No. 3146-2017 N.T., 3/28/18, at 7-8. In CP-25-CR-0003159-2017 (No.
3159-2017), Appellant pleaded guilty to charges of possession of a firearm by
a prohibited person, receiving stolen property, and possession with intent to
deliver a controlled substance (PWID)3 that arose when Appellant, who was
prohibited as a result of a prior conviction from possessing firearms, was found
with a stolen handgun and heroin in his possession on September 11, 2017.
No. 3159-2017 N.T., 2/2/18, at 8-10. On April 24, 2018, the sentencing court
held a sentencing hearing in both cases and imposed an aggregate sentence
of 36-72 months confinement in No. 3146-2017 and an aggregate sentence
of 42-84 months confinement in No. 3159-2017. The sentencing court further
ordered that the sentences in the two cases are to run consecutively.
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2 18 Pa.C.S. §§ 6106 and 2705, respectively.
3 18 Pa.C.S. §§ 6105(a)(1) and 3925, and 35 P.S. § 780-113(a)(30),
respectively.
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Appellant filed timely post-sentence motions in both cases. On May 3, 2018,
the sentencing court denied Appellant’s post-sentence motions.
On June 1, 2018, Appellant filed timely direct appeals from both
judgments of sentence.4 On December 18, 2018, appellate counsel filed
Anders briefs and petitions to withdraw as counsel in both appeals. In each
of her Anders briefs, appellate counsel presents the following issue:
Whether the appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Sentencing Code?
818 WDA 2018 Anders Br. at 3; 819 WDA 2018 Anders Br. at 3. Appellant
has not filed any pro se response to counsel’s petitions to withdraw or Anders
briefs. The Commonwealth filed a brief in support of affirmance of the
judgments of sentence in both appeals.
Before this Court can consider the merits of these appeals, we must first
determine whether appellate counsel has satisfied all of the requirements that
court-appointed counsel must meet before leave to withdraw may be granted.
Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en
banc); Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)
(en banc).
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4In accordance with Pa.R.A.P. 1925(c)(4), appellate counsel filed statements
of intent to file an Anders brief in lieu of statements of errors complained of
on appeal. The trial court did not file an opinion in either case.
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To withdraw from representing a convicted defendant on direct appeal
on the basis that the appeal is frivolous, counsel must (1) petition the court
for leave to withdraw stating that he has made a conscientious examination
of the record and has determined that the appeal would be frivolous; (2) file
a sufficient Anders brief; and (3) provide a copy of the Anders brief to the
defendant and advise the defendant of his right to retain new counsel or
proceed pro se and to raise any additional points that he deems worthy of the
court’s attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183
(Pa. Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply
with the all of the following requirements:
[T]he Anders 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also
Dempster, 187 A.3d at 270; Commonwealth v. Zeigler, 112 A.3d 656, 660
(Pa. Super. 2015). If counsel has satisfied the above requirements, it is then
this Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is wholly frivolous.
Dempster, 187 A.3d at 271; Zeigler, 112 A.3d at 660.
In these appeals, appellate counsel states in each of her petitions to
withdraw that she has reviewed the entire record and determined that there
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are no non-frivolous grounds for the appeal. Appellate counsel’s December
18, 2018 letters to Appellant provided copies of the Anders briefs to Appellant
and advised him of his right either to retain new counsel or to proceed pro se
on appeal to raise any points he deems worthy of the court’s attention.
Further, each of appellate counsel’s Anders briefs provides procedural and
factual summaries of the case with references to the record and cites and
discusses the applicable law on which counsel bases her conclusion that there
are no non-frivolous issues that she can raise on Appellant’s behalf. Appellate
counsel has thus filed sufficient Anders briefs and has fully complied with the
procedural requirements for withdrawal as counsel in both appeals.
We therefore proceed to conduct an independent review to ascertain
whether the appeals are indeed wholly frivolous. This Court first considers
the issues raised by counsel in the Anders brief and determines whether they
are in fact frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.
Super. 2018) (en banc); Dempster, 187 A.3d at 272. In addition, if the Court
finds all of those issues frivolous, this Court conducts an examination of the
record to discern if there are any other issues of arguable merit overlooked by
counsel. Yorgey, 188 A.3d at 1196-97; Dempster, 187 A.3d at 271-72.
The lone issue raised in counsel’s Anders briefs is whether the
sentences imposed in the two cases are “manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the Sentencing Code.”
These are challenges to the discretionary aspects of Appellant’s sentences and
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are therefore not appealable as of right. Dempster, 187 A.3d at 272;
Bynum-Hamilton, 135 A.3d at 184. Rather, an appeal from the discretionary
aspects of a sentence is permitted only after this Court determines that there
is a substantial question that the sentence was not appropriate under the
Sentencing Code. Dempster, 187 A.3d at 272; Bynum-Hamilton, 135 A.3d
at 184; Zeigler, 112 A.3d at 661.5 A claim that a sentence within statutory
limits is excessive is generally not sufficient to raise a substantial question,
absent a claim that the sentence violates a specific provision of the Sentencing
Code or that the sentencing court did not consider the sentencing guidelines
or factors concerning the crimes and the defendant that a sentencing court is
to consider under the Sentencing Code. Dempster, 187 A.3d at 272-23 n.6;
Bynum-Hamilton, 135 A.3d at 184; Zeigler, 112 A.3d at 662;
Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012);
Commonwealth v. Titus, 816 A.2d 251, 255–56 (Pa. Super. 2003).
Here, the sentences were well within the sentencing guidelines.
Appellant had a prior record score of five, as a result of past felony burglary
and firearms convictions. N.T., 4/24/18, at 7. In No. 3146-2017, Appellant
was sentenced to 36-72 months for carrying a firearm without a license and
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5 An appellant challenging the discretionary aspects of sentence is also
required to satisfy other requirements, including filing a timely post sentence
motion and complying with Pa.R.A.P. 2119(f). See, e.g., Dempster, 187
A.3d at 272. Appellant has satisfied those other requirements here.
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12-24 months, running concurrently, for reckless endangerment. The Offense
Gravity Scores for these offenses were nine and three, respectively. 204 Pa.
Code § 303.15. The standard ranges for the minimum sentence6 for these
offenses under the sentencing guidelines were therefore 48-60 months and 6-
16 months, respectively. 204 Pa. Code §§ 303.9(e), 303.16(a). In No. 3159-
2017, Appellant was sentenced to 21-42 months for possession of a firearm
by a prohibited person, 12-24 months, running concurrently, for receiving
stolen property, and 21-42 months, running consecutively, for PWID. The
Offense Gravity Scores for these offenses were six, five, and six, respectively.
204 Pa. Code § 303.15. The standard ranges for the minimum sentence for
these offenses under the sentencing guidelines were therefore 21-27 months,
12-18 months, and 21-27 months, respectively. 204 Pa. Code §§ 303.9(e),
303.16(a).
Moreover, the record is clear that the sentencing court considered the
relevant factors concerning Appellant and the crimes in imposing these
sentences. At the sentencing hearing, the court explained on the record that
it was taking into account the statements of counsel, Appellant’s statement to
the court, in which he had apologized for his actions, Appellant’s family
support, Appellant’s age, Appellant’s prior record, the presentence
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6 Where a defendant is sentenced to imprisonment, the maximum sentence
must be at least twice the length of the minimum sentence that the court
imposes. 42 Pa.C.S. § 9756(b)(1).
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investigation report, the details of the crimes, the sentencing guidelines, and
the Appellant’s sentencing memoranda. N.T., 4/24/18, at 9-10. The mere
fact that some of the sentences were imposed consecutively does not raise a
substantial question where, as here, the resulting total aggregate sentence is
not extremely lengthy for the criminal conduct at issue, the crimes for which
consecutive sentences were imposed arose out of separate conduct, and there
is no basis for a claim that the sentencing court failed to consider mitigating
factors. Commonwealth v. Radecki, 180 A.3d 441, 468-70 (Pa. Super.
2018); Commonwealth v. Zirkle, 107 A.3d 127, 133-34 (Pa. Super. 2014).
Based on the foregoing, we agree with appellate counsel that the issue
raised by Appellant lacks any arguable merit. In addition, we have reviewed
the certified record and have discovered no additional non-frivolous issues.
Therefore, we grant appellate counsel’s petition to withdraw and affirm the
sentencing court’s judgment of sentence.
Judgments of sentence affirmed. Petitions to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2019
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