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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JUAN BATISTA SORIANO, JR. :
:
Appellant : No. 1511 MDA 2018
Appeal from the Judgment of Sentence Entered December 15, 2016
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000080-2014
BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 10, 2019
Juan Batista Soriano, Jr., appeals, nunc pro tunc, from the judgment of
sentence, entered in the Court of Common Pleas of Dauphin County, following
the revocation of his probation. Counsel has filed an Anders/McClendon1
brief and a petition to withdraw. For the reasons that follow, we affirm
Soriano’s judgment of sentence and grant counsel’s petition to withdraw.
On November 6, 2014, Soriano entered a guilty plea to charges of
burglary,2 conspiracy3 and possession of instruments of crime (“PIC”).4 The
court sentenced him 6 to 23 months’ imprisonment for burglary, with work
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1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
2 18 Pa.C.S.A. § 3502(a)(2).
3 18 Pa.C.S.A. § 903.
4 18 Pa.C.S.A. § 907(a).
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release eligibility, followed by an aggregate probationary term of three years
on the remaining charges. Soriano filed neither post-sentence motions nor a
direct appeal.
On December 15, 2016, Soriano was brought before the trial court for
a revocation hearing after he directly and indirectly violated the terms of his
probation.5 The court resentenced him to two to four years’ incarceration for
conspiracy and a consecutive term of one to two years’ incarceration for PIC.
Soriano filed a post-sentence motion seeking credit for time served, which the
court granted. Soriano did not file a direct appeal, but on June 8, 2017, filed
a petition under the Post Conviction Relief Act (“PCRA”).6 Present counsel was
appointed and filed an amended petition seeking reinstatement of Soriano’s
post-sentence and direct appellate rights. Relief was granted by order dated
July 11, 2018. Soriano filed post-sentence motions, nunc pro tunc, which
were denied. On August 9, 2018, Soriano filed a timely notice of appeal, nunc
pro tunc, followed by a court-ordered concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Soriano challenges
the discretionary aspects of his revocation sentence.
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5 Specifically, the court found that Soriano had: been charged with driving
under the influence in Dauphin County; pled guilty to felony drug and firearm
possession charges in New York state; failed to report to his probation officer
as required; traveled more than 50 miles outside Dauphin County without
prior approval from his probation officer; and failed to pay his fines, costs or
restitution. Soriano does not dispute the underlying factual basis for his
revocation.
6 42 Pa.C.S.A. §§ 9541-9546.
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Before addressing Soriano’ appellate claim, we must resolve counsel’s
petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). An attorney seeking to withdraw on appeal must
comply with certain procedural and briefing requirements. 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 [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). In addition, our Supreme Court in Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009), 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 (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 also must provide the appellant with a copy of the Anders brief,
together with a letter that advises the appellant of his or her right to “(1)
retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)
raise any points that the appellant deems worthy of the [C]ourt’s attention in
addition to the points raised by counsel in the Anders brief.”
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Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation
omitted). Substantial compliance with these requirements is sufficient.
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).
Here, counsel has filed a petition to withdraw as counsel and an Anders
brief. In her amended petition, counsel states that, after a conscientious
examination of the record, she has determined that the appeal is wholly
frivolous. Amended Petition to Withdraw, 8/6/19, at ¶ 17. Additionally,
counsel states in her amended petition that she mailed a copy of the Anders
brief to Soriano, and advised him of his right to retain counsel or proceed pro
se to represent his interest in his appeal or to raise any additional issues for
appellate review. Id. at ¶ 22. Counsel also attached to her amended petition
a letter to Soriano advising him of his right to retain new counsel or proceed
pro se in his appeal and/or raise any additional issues he believed the Court
should consider.7 See Letter from Amanda A. Batz, Esquire, to Soriano,
8/6/19, at 2. Finally, counsel’s brief sets out one issue of arguable merit and,
pursuant to the dictates of Santiago, explains why counsel believes the
appeal to be frivolous. Accordingly, counsel has substantially complied with
the requirements of Anders and Santiago. We now turn to our independent
review of the record and the claim raised by Soriano.
Soriano asserts that the trial court failed to consider the mitigating
evidence he presented at his revocation hearing and sentenced him to an
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7 Soriano has not filed a response to counsel’s Anders brief.
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unreasonable term of incarceration. Anders Brief, at 12. Specifically, Soriano
claims that he demonstrated remorse for his actions, noted that he had a
daughter and fiancée in New York, and had made “some attempts” to make
payments towards his costs, fines and restitution. Id. at 13. Soriano is
entitled to no relief.
Soriano’s sole appellate claim implicates the discretionary aspects of his
sentence. Such a challenge is not appealable as of right. Rather, an appellant
must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).
Before we reach the merits of this issue, we must engage in a four
part analysis to determine: (1) whether the appeal is timely; (2)
whether Appellant preserved his issue; (3) whether Appellant’s
brief includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under the
sentencing code. . . . [I]f the appeal satisfies each of these four
requirements, we will then proceed to decide the substantive
merits of the case.
Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013); see also Commonwealth v. Kalichak, 943 A.2d 285, 289
(Pa. Super. 2008) (“[W]hen a court revokes probation and imposes a new
sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a post-sentence motion.”).
Here, Soriano preserved his claim in a motion for reconsideration of
sentence and filed a timely notice of appeal nunc pro tunc. Although counsel
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has not included the requisite Pa.R.A.P. 2119(f) statement in her Anders
brief, “[w]here counsel files an Anders brief, this Court has reviewed the
matter even absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do
not consider counsel’s failure to submit a Rule 2119(f) statement as precluding
review of whether Appellant’s issue is frivolous.” Commonwealth v. Zeigler,
112 A.3d 656, 661 (Pa. Super. 2015) (citations omitted).
Upon revoking probation, a sentencing court may choose from any of
the sentencing options that existed at the time of the original sentencing,
including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that the defendant has
been convicted of another crime, his conduct indicates it is likely he will
commit another crime if he is not imprisoned, or such a sentence is essential
to vindicate the authority of the court. 42 Pa.C.S.A. § 9771(c). Section 9721,
which governs sentencing generally, provides that 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.”
Id. Failure to comply with these provisions “shall be grounds for vacating the
sentence or resentence and resentencing the defendant.” Id. Additionally,
the reasons stated for a sentence imposed should reflect the sentencing
court’s consideration of the criteria of the Sentencing Code, the circumstances
of the offense, and the character of the offender. Commonwealth v.
DeLuca, 418 A.2d 669, 670 (Pa. Super. 1980). Finally,
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[s]entencing 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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citation
omitted).
Upon review of the sentencing transcript and the record in this matter,
we conclude that the sentencing court did not abuse its discretion in
sentencing Soriano to an aggregate term of three to six years’ incarceration
upon revocation of his probation. As Soriano had been convicted of another
crime, a term of total incarceration was authorized under section 9771(c).
The court heard and considered defense counsel’s arguments, as well as
Soriano’s own statement of contrition. Nevertheless, the court concluded that
Soriano’s “failure to refrain from committing additional serious crimes
render[s] him a danger to society and evidence[s] a need for rehabilitation.”
Trial Court Opinion, 10/3/18, at 4. At resentencing, the court appropriately
detailed on the record its reasons for sentencing Soriano as it did, stating as
follows:
THE COURT : Well, I don’t hear a lot of good things here. And
it’s very clear to me that you were before us—you were before
Judge Dowling in November of 2014 and you were convicted of a
burglary and criminal conspiracy and possession of instruments of
crime.
And then in January of 2016 you pleaded guilty before me for DUI.
And I direct that 5141 be closed.
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But not only did you violate technically several provisions—and
I'm going to repeat them for the record so that someone’s not
confused about why you are being revoked—you committed DUI,
you did not refrain from overt behavior the DUI and new arrest to
which you’ve already pleaded guilty which are felony drug and
firearms charges, you haven’t paid your fines, costs, and
restitution. You owe almost $5,000 on that. You didn’t have
approval to be in New York. And you were found in possession of
a loaded firearm.
All those matters tell me that you need serious rehabilitation and
that the society is in great danger with you.
N.T. Resentencing, 12/15/16, at 5-6.
In short, Soriano’s dissatisfaction with his sentence does not equate to
a viable excessiveness claim. The trial court acted within its discretion in
sentencing Soriano, and he is entitled to no relief. Antidormi, supra.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2019
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