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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES L. HOPPER :
:
Appellant : No. 1401 MDA 2018
Appeal from the Judgment of Sentence Entered July 24, 2018
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000889-2017
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 07, 2019
Appellant, James L. Hopper, appeals from the judgment of sentence
entered on July 24, 2018, in the Columbia County Court of Common Pleas
following his May 16, 2018 entry of a guilty plea. 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 has not filed a response to counsel’s petition to withdraw.
Following our review, we grant counsel’s petition to withdraw and affirm the
judgment of sentence.
The trial court summarized the facts of the crimes as follows:1
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1 We remind counsel of his duty to attach the relevant trial court opinions to
his brief pursuant to Pa.R.A.P. 2111 (b) and (d).
____________________________________
* Former Justice specially assigned to the Superior Court.
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This case arises out of an incident which occurred on
October 3, 2017. In his guilty plea, [Appellant] admitted that he
asked [Tyler Kline (“the Victim”)] for a ride while the Victim was
beginning a date of sorts, which was blindly arranged on-line, with
a female who was alleged to be complicit with [Appellant]. During
the ride, from the back seat, while the Victim was driving,
[Appellant] put a handgun to the Victim’s head, told the Victim to
drive to a secluded place and told the Victim to give [Appellant]
all of the Victim’s money. The Victim had none. [Appellant] told
the Victim to strip and ordered the Victim to drive to a[n]
automatic teller machine. The Victim, however, legally possessed
a handgun, and, while the Victim was driving virtually naked,
when [Appellant] was not paying attention, the Victim[] pulled his
handgun, turned around and shot [Appellant] in the face.
[Appellant] survived, and in court, appeared to be recovered but
professes residual injuries.
Trial Court Opinion, 10/8/18, at 1.
By Information filed on December 22, 2017, Appellant was charged with
robbery, kidnapping, persons not to possess firearms, firearms not to be
carried without a license, unlawful restraint, attempt to commit theft, and
simple assault. On May 16, 2018, Appellant pled guilty to robbery, graded as
a felony of the first degree, persons not to possess firearms, graded as a
felony of the second degree, and unlawful restraint, graded as a misdemeanor
of the first degree.2 Noting that Appellant’s prior record score was five, the
trial court imposed consecutive, standard-range sentences on July 24, 2018,
as follows: a period of incarceration of eighty-four to 240 months for robbery;
sixty to 120 months for the firearms violation; and twelve to twenty-four
months for unlawful restraint. The aggregate sentence imposed, therefore, is
____________________________________________
2 18 Pa.C.S. §§ 3701(a)(1)(ii), 6105(a)(1), and 2902(a)(1), respectively.
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156 months to 384 months of imprisonment. Appellant filed a timely post-
sentence motion seeking reconsideration of his sentence pursuant to
Pa.R.Crim.P. 720(B)(v), which the trial court denied on July 31, 2018. This
timely appeal followed. While directed to file a Pa.R.A.P. 1925(b) statement,
counsel noted that he would be filing a petition to withdraw pursuant to
Anders and Santiago. The trial court complied with Rule 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 Santiago, 978 A.2d 349, stated that
an 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
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(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. Specifically, counsel requested to withdraw based upon his
determination that the appeal is wholly frivolous. Petition to Withdraw as
Counsel, 12/4/18, at ¶ 4. Additionally, counsel sent a letter to Appellant, and
he attached a copy of the letter to his motion.3 Counsel stated that he
informed Appellant that he has filed a motion to withdraw and an Anders
brief, and he apprised Appellant of his rights in light of the motion to withdraw
as counsel. Thus, Appellant’s appellate counsel satisfied the requirements of
Anders.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in 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
____________________________________________
3 While counsel’s initial letter to Appellant dated December 4, 2018,
misinformed Appellant regarding when he could proceed pro se or with new
counsel, following our December 11, 2018 order directing same, counsel
corrected the information to Appellant by letter dated December 18, 2018.
See Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016) (clarifying
that counsel’s letter to client shall inform client that upon counsel’s filing of
petition to withdraw, client has immediate right to proceed in appeal pro se or
by privately retained counsel).
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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; Cartrette, 83 A.3d at 1032.
Counsel’s brief is sufficiently compliant with Santiago. It sets forth the
history of this case, outlines pertinent case authority, cites to the record, and
refers to issues of arguable merit. Anders Brief at 5–12. Further, the brief
advances counsel’s conclusion that the appeal is frivolous and the reasons for
counsel’s conclusion. Id. at 13–22. Accordingly, we proceed to examine the
issues counsel identified in the Anders brief, and then we conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super.
2018) (en banc).
Counsel for Appellant has indicated that after review of the certified
record, there are no meritorious issues. Anders Brief at 11. However,
counsel set forth three possible issues on Appellant’s behalf:
Did the Trial Court have jurisdiction to hear the Appellant’s case?
Did the Appellant enter his pleas knowingly, intelligently and
voluntarily?
Did the Trial Court impose an Illegal Sentence?
Anders Brief at 5.
Appellant first inquires whether the trial court had jurisdiction to hear
and decide his case. Anders Brief at 13. It is undisputed that Appellant plead
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guilty to crimes that occurred in Berwick, Pennsylvania. A person may be
convicted under the laws of this Commonwealth for offenses committed within
Pennsylvania. 18 Pa.C.S. § 102(a)(1). Moreover, it is well settled that all
courts of common pleas in Pennsylvania have statewide subject matter
jurisdiction in cases arising under the Crimes Code. Commonwealth v.
Bethea, 828 A.2d 1066, 1074 (Pa. 2003); 42 Pa.C.S. § 931. Accordingly, the
trial court had jurisdiction in the underlying prosecution. The issue lacks
merit.
Next, Appellant asks whether his guilty plea was knowingly, intelligently,
and voluntarily entered. Anders Brief at 14. In assessing challenges to the
validity of a guilty plea, we are guided by the following standard of review.
“Pennsylvania law makes clear that by entering a plea of guilty, a defendant
waives his right to challenge on direct appeal all nonjurisdictional defects
except the legality of the sentence and the validity of the plea.”
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468 (Pa. Super.
2017); Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013).
“Our law presumes that a defendant who enters a guilty plea was aware of
what he was doing. He bears the burden of proving otherwise.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(citation omitted). Post-sentence motions for withdrawal “are subject to
higher scrutiny since courts strive to discourage entry of guilty pleas as
sentence-testing devices.” Commonwealth v. Kehr, 180 A.3d 754, 757 (Pa.
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Super. 2018) (quoting Commonwealth v. Broaden, 980 A.3d 124, 129 (Pa.
Super. 2009)). A defendant has no absolute right to withdraw a guilty plea;
rather, the decision to grant such a motion lies within the sound discretion of
the trial court. Kehr, 180 A.3d at 757.
Any challenge to Appellant’s guilty plea is waived.
A defendant wishing to challenge the voluntariness of a guilty plea
on direct appeal must either object during the plea colloquy or file
a motion to withdraw the plea within ten days of sentencing.
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver. Historically, Pennsylvania courts
adhere to this waiver principle because it is for the court which
accepted the plea to consider and correct, in the first instance,
any error which may have been committed.
Lincoln, 72 A.3d at 609–610 (internal quotation marks and some citations
omitted) (emphasis added). While Appellant filed a post-sentence motion
pursuant to Pa.R.Crim.P. 720, he simply sought to modify his sentence and
did not seek to withdraw his plea despite being informed of his right to do so.
Post Sentence Motion Pursuant to Pa.[R.]Crim.P. 720(B), 7/30/18; N.T.
(Guilty Plea), 5/16/18, at 4–6. Moreover, Appellant did not challenge his plea
at either the guilty plea hearing or at sentencing. N.T. (Guilty Plea), 5/16/18;
N.T. (Sentencing), 7/24/18; see Commonwealth v. Tareila, 895 A.2d 1266,
1270 n.3 (Pa. Super. 2006) (explaining that in order to preserve an issue
related to the guilty plea, an appellant must either object at the sentence
colloquy or otherwise raise the issue at the sentencing hearing or through a
post-sentence motion); Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on appeal”).
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Accordingly, Appellant has waived any challenge to the validity of his guilty
plea.
Appellant’s final issue relates to the legality of his sentence. Anders
Brief at 13, 18 (noting that entry of a guilty plea constitutes “waiver of all
defects and defenses except lack of jurisdiction, invalidity of the plea, and
illegality of the sentence”) (citing Commonwealth v. Main, 6 A.3d 1026,
1028 (Pa. Super. 2010)). None of Appellant’s sentences exceeded the
statutory maximum, nor do any of the minimum sentences imposed exceed
more than one-half of the maximum sentence. See Commonwealth v.
Foster, 17 A.3d 332 (Pa. 2011) (setting forth exhaustive list and explanation
of claims relative to legality of sentence issues).
Despite labeling his final issue as one relating to the legality of his
sentence, Appellant includes claims, though inartfully stated, that relate to the
discretionary aspects of his sentence. A defendant may challenge the
discretionary aspects of sentencing if the plea agreement contains no
sentencing restrictions, as herein. Commonwealth v. Hill, 66 A.3d 359, 363
(Pa. Super. 2013). Appellant references 1) the trial court’s obligation to
consider the Sentencing Guidelines, and 2) the fact that all of the sentences
were imposed consecutively. Anders Brief at 19–22.
It is well settled that a challenge to the discretionary aspects of a
sentence is a petition for permission to appeal, as the right to pursue such a
claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597, 599
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(Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke this
Court’s jurisdiction when challenging the discretionary aspects of a sentence,”
by (1) preserving the issue in the court below, (2) filing a timely notice of
appeal, (3) including a Rule 2119(f) statement, and (4) raising a substantial
question for our review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa.
Super. 2015) (citation omitted); Commonwealth v. Austin, 66 A.3d 798,
808 (Pa. Super. 2013).
Herein, the first two requirements of the four-part test are met:
Appellant brought a timely appeal, and he preserved his sentencing issues in
his post-sentence motion to reconsider his sentence. However, he did not
include in his appellate brief the necessary separate statement of the reasons
relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
Nevertheless, this omission is not fatal to Appellant’s sentencing challenge
because the Commonwealth has not objected. See Commonwealth v.
Yeomans, 24 A.3d 1044 (Pa. Super. 2011) (“[W]hen the appellant has not
included a Rule 2119(f) statement, and the appellee has not objected, this
Court may ignore the omission and determine if there is a substantial question
that the sentence imposed was not appropriate”). Moreover, “Where counsel
files an Anders brief, this Court has reviewed the matter even absent a
separate Pa.R.A.P. 2119(f) statement.” Commonwealth v. Zeigler, 112
A.3d 656, 661 (Pa. Super. 2015) (citations omitted). Thus, counsel’s failure
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to submit a Rule 2119(f) statement does not preclude review of whether
Appellant’s issue is frivolous.
In assessing the merits of a challenge to the discretionary aspects of a
sentence, we apply the following standard:
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. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (citing
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)); see also
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citation omitted)
(“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 a lack of
support as to be clearly erroneous.”).
In rejecting any challenge to the sentences imposed, the trial court
noted that its imposition of sentence included careful consideration of the
presentence report. Trial Court Opinion, 10/8/18, at 2–3. When a
presentence investigation report exists, this Court presumes that the trial
court “was aware of relevant information regarding [the appellant’s] character
and weighed those considerations along with the mitigating statutory factors.”
Commonwealth v. Fullin, 892 A.2d 843, 849–850 (Pa. Super. 2006)
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(citation omitted). “The sentencing judge can satisfy the requirement that
reasons for imposing sentence be placed on the record by indicating that he
or she has been informed by the pre-sentencing report[,] thus properly
considering and weighing all relevant factors.” Commonwealth v. Ventura,
975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted).
The trial court stated the following regarding its imposition of Appellant’s
sentences:
The Pre Sentence Investigation Report (“PSI”) showed that
[Appellant] has a prior F-3 Robbery adjudication as a juvenile, and
several adult convictions including two (2) M-2 Simple Assaults,
an F-1 Aggravated Assault, and an ungraded Felony Possession
with Intent to Deliver. [Appellant’s] Prior Record Score was a “5.”
Since [Appellant] used a firearm in the incident, the “Deadly
Weapons Used” matrix was applied, except for the Firearms count,
since possession of a firearm was an element of that offense. The
Victim Impact Statement makes it clear that the Victim suffered
substantial trauma and that the Victim has been diagnosed with
Post Traumatic Stress Disorder (“PTSD”). The Victim’s PTSD has
affected his livelihood and has limited his ability to drive trucks,
which was his prior occupation.
* * *
At sentencing, this [c]ourt elaborated on the reasons for the
sentences . . . . (NT 7/24/18, 7–9). This [c]ourt stated that, in
recognition of [Appellant’s] father’s plea for leniency, this [c]ourt
did not sentence [Appellant] at the upper end of the Standard
Range for any of the offenses except the Firearms count . . . . On
the record, this [c]ourt stated that concurrent sentences “would
not do justice” (NT 7/24/18, p. 8 Ins. 16–17).
* * *
Sentencing is committed to the sound discretion of the trial
court. Commonwealth v. Whitman, 2005 Pa. Super 277, 880 A.2d
1250 (2005). The standard range of the guidelines “is
presumptively where a defendant should be sentenced.”
Commonwealth v. Fowler, 2006 Pa. Super 30, 893 A.2d 758, 767
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(2006). The Standard Range and the reasons recited by this
Court, on the record, validate all of the sentences.
As to this [c]ourt’s exercise of its discretion to sentence
consecutively, one need only look to the violent and planned
nature of the offenses, the use of a han[d]gun by [Appellant] and
the trauma suffered by the Victim. All three (3) offenses were
distinct, address differing wrongs and policies, and do not merge.
A sentencing court has broad discretion to assess consecutive
sentences:
. . . the court has discretion to impose sentences
consecutively or concurrently and, ordinarily, a
challenge to this exercise of discretion does not raise
a substantial question. Commonwealth v. Pass, 2006
PA Super 358, 914 A.2d 442, 446-47 (Pa. Super.
2006). The imposition of consecutive, rather than
concurrent, sentences may raise a substantial
question in only the most extreme circumstances,
such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the
length of imprisonment.
Commonwealth v. Moury, 2010 Pa. Super 46, 992 A.2d 162, 171–
172 (2010). 42 Pa.C.S. §9721(a) states that a sentencing court
“may” impose sentences “consecutively or concurrently.” Given
[Appellant’s] prior record, the distinctions between the crimes at
issue, and the dangerousness, offensiveness and severity of
[Appellant’s] actions in illegally possessing a handgun to force the
Victim to drive to a secluded place and in attempting to steal from
the Victim, it cannot be said that consecutive sentences were
unduly harsh.
Trial Court Opinion, 10/8/18, at 2–4. Further, Appellant exercised his right to
allocution. N.T., 7/24/18, at 2–3; Pa.R.Crim.P. 704 (C)(1) (trial court shall
afford the appellant the opportunity to make a statement in his behalf at the
time of sentencing).
Based on the foregoing, we conclude that Appellant failed to establish
by reference to the record that the sentencing court ignored or misapplied the
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law, exercised its judgment for reasons of partiality, prejudice, bias, or ill will,
or arrived at a manifestly unreasonable decision. Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015).
Finally, we have independently reviewed the record in order to
determine if counsel’s assessment about the frivolous nature of the present
appeal is correct. Yorgey, 188 A.3d at 1195. After review of the issues raised
by counsel and our independent review of the record, we conclude that an
appeal in this matter is frivolous. Accordingly, we grant counsel’s petition 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: 05/07/2019
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