J-S01010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIJIFA AYESHA ANDERSON :
:
Appellant : No. 1084 MDA 2018
Appeal from the Judgment of Sentence Entered June 11, 2018
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000193-2015,
CP-41-CR-0000401-2014, CP-41-CR-0001253-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIJIFA AYESHA ANDERSON :
:
Appellant : No. 1085 MDA 2018
Appeal from the Judgment of Sentence Entered June 11, 2018
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000193-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIJIFA AYESHA ANDERSON :
:
Appellant : No. 1086 MDA 2018
Appeal from the Judgment of Sentence Entered June 11, 2018
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001253-2017
J-S01010-19
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.
MEMORANDUM BY PANELLA, P.J.: FILED JULY 12, 2019
Kijifa Ayesha Anderson appeals from the judgment of sentence imposed
after the court revoked her probation as well as a guilty plea to retail theft.
Additionally, William J. Miele, Esquire (“Attorney Miele”), has filed a petition
for leave to withdraw as counsel and an accompanying brief pursuant to
Anders v. California, 386 U.S. 738 (1967). We affirm the judgment of
sentence and grant counsel’s petition to withdraw.
In September 2014, Anderson pled guilty at CP-41-CR-0000401-2014
(“No. 401-2014”), to retail theft. The trial court sentenced her to two years’
probation. Shortly thereafter, in February 2015, Anderson pled guilty at CP-
41-CR-0000193-2015 (“No. 193-2015”) to another count of retail theft. The
trial court imposed a sentence of three years’ probation.
On May 23, 2018, Anderson pled guilty at CP-41-CR-0001253-2017
(“No. 1253-2017”) to retail theft and criminal attempt to commit the crime of
receiving stolen property. This guilty plea triggered a probation violation
hearing on June 11, 2018. At the hearing, the court revoked her probation on
her conviction for retail theft at No. 401-2014, and imposed a sentence of 1
to 2 years’ imprisonment. On her conviction for retail theft at No. 193-2015,
the court revoked her probation and sentenced her to a term of imprisonment
of 2 ½ to 5 years. Additionally, for her conviction at No. 1253-2017, the court
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Retired Senior Judge assigned to the Superior Court.
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sentenced Anderson to 4 to 30 months’ imprisonment. All three sentences
were set to run concurrently. Thus, the aggregate sentence imposed was 2 ½
to 5 years’ imprisonment.
Anderson filed a post-sentence motion, seeking reconsideration of the
sentence. The court denied reconsideration, and Anderson filed this timely
appeal.1
As a threshold matter, we must examine Attorney Miele’s request to
withdraw. To withdraw pursuant to Anders, 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 [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). With respect to the third requirement of Anders,
that counsel inform the appellant of her or her rights in light of counsel’s
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1 On July 2, Anderson filed a notice of appeal at each docket bearing all three
trial court docket numbers. On July 30, 2018, this Court issued a rule directing
Anderson to show cause why her appeal should not be quashed in light of our
Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018) (holding Pa.R.A.P 341’s Note requires the filing of separate notice of
appeal for separate docket numbers; the failure to file separate notices
requires quashal of the appeal). Appellant filed a response indicating that her
case was distinguishable from Walker. We agree. While the inclusion of the
three docket numbers on each notice of appeal confuses the issue, Anderson
technically complied with the dictates of Pa.R.A.P. 341’s Note by filing a notice
of appeal at each docket court number. Accordingly, we conclude that Walker
is inapplicable here.
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withdrawal, this Court has held that counsel must “attach to their petition to
withdraw a copy of the letter sent to their client advising him or her of their
rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an Anders brief must comply with the following
requirements:
(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 conclusions 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). “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.” Commonwealth v. Wrecks,
931 A.2d 717, 721 (Pa. Super. 2007) (citation omitted).
Instantly, Attorney Miele filed a petition to withdraw, certifying he has
reviewed the case and determined that Anderson’s appeal is frivolous. Counsel
attached to his petition a copy of his letter to Anderson, advising that she may
retain new counsel, raise additional issues pro se, or discontinue her appeal.
Attorney Miele also filed a brief, which includes a summary of the history and
facts of the case, potential issues that could be raised by Anderson, and
counsel’s assessment of why those issues are meritless, with citations to
relevant legal authority.
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Counsel has thus complied with the requirements of Anders. Anderson
has not filed a response. We may now proceed to review the issues outlined
in the Anders brief.
Counsel has identified a single issue Anderson believes entitles her to
relief. Anderson asserts the court abused its discretion in imposing sentence.
She concedes this argument raises a challenge to the discretionary aspects of
her sentence. See Anders’ Brief, at 10. “A challenge to the discretionary
aspects of a sentence must be considered a petition for permission to appeal,
as the right to pursue such a claim is not absolute.” Commonwealth v.
McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted). “Two
requirements must be met before we will review this challenge on its merits.”
Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).
“Second, the appellant must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.” Id. (citation
omitted). That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).
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We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.” Id.
(citation and emphasis omitted).
In her Rule 2119(f) statement, Anderson contends the court abused its
discretion by imposing an unduly harsh and manifestly excessive sentence
while failing to consider her individual characteristics, the nature of the
offense, and her rehabilitative needs. This raises a substantial question for our
review. See Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013)
(holding a claim that a failure to account for rehabilitative needs resulted in
an excessive sentence raises a substantial question).
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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted). When imposing sentence, a court must consider “the protection of
the public, gravity of the offense in relation to impact on victim and
community, and rehabilitative needs of defendant.” Commonwealth v.
Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (citation omitted).
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Anderson challenges the sentences imposed following both the
revocation of probation and a guilty plea. The imposition of these distinct types
of sentences requires different considerations by the trial court. “Upon
revocation 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.A. §
9771(b). The court may impose a sentence of total confinement upon
revocation if “the defendant has been convicted of another crime[.]” Id., at
(c)(1). “The trial court is limited only by the maximum sentence that it could
have imposed originally at the time of the probationary sentence.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (citations
omitted).
In addition, in all cases where the court resentences an offender
following 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
[and] [f]ailure to comply with these provisions shall be grounds
for vacating the sentence or resentence and resentencing the
defendant. A trial court need not undertake a lengthy discourse
for its reasons for imposing a sentence or specifically reference
the statute in question, but the record as a whole must reflect the
sentencing court’s consideration of the facts of the crime and
character of the offender.
Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (internal
citations and quotation marks omitted; brackets in original).
Here, the court considered all necessary factors, and determined that
Anderson’s recidivism required a term of imprisonment to protect the public.
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There is no abuse of the court’s discretion as to the imposition of sentences
following revocation of Anderson’s probation at No. 401-2014 and No. 193-
2014.
Further, we find no abuse of discretion in the trial court’s sentence at
No. 1253-2017. Anderson does not argue the sentencing court misapplied the
guidelines or sentenced her outside the guidelines. In fact, Anderson’s
sentence was in the mitigated range of the guidelines. See Trial Court Opinion,
9/25/18, at 6-7. However, Anderson asserts her sentence was excessive
because the sentencing court failed to consider certain mitigating factors such
as her individual circumstances, the nature of the offense, and her need for
rehabilitation. See Anders Brief, at 8.
We note that, “[w]hen, as here, the trial court has the benefit of a pre-
sentence report [“PSI”], we presume that the court was aware of the 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) (citation omitted).
Additionally, in its sentencing order, the trial court specifically stated:
[i]n making these sentences, the [c]ourt has considered the PSI,
the long time criminal behavior, the defendant’s association with
negative and criminal people during her period of supervision, her
general lack of obedience with the supervision, the fact that she
flunked out of Drug Court, the fact that she performed no
community service on Drug Court and committed the new offense
at [No.] 1253-2017.
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Sentencing Order, 6/11/18, at 2 (unnumbered). It is clear from the record
that the sentencing court did not ignore or misapply any of the sentencing
guidelines. See Raven, 97 A.3d at 1254. As such, we do not find that the trial
court abused its discretion in sentencing Anderson.
Anderson’s challenges to the discretionary aspects of her sentence are
meritless. Our independent review of the record reveals no other, non-
frivolous issues that Anderson could raise on appeal. Therefore, we affirm
Anderson’s judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/12/2019
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