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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GABRIELLE VICTORIA AYALA :
:
Appellant : No. 392 MDA 2019
Appeal from the Judgment of Sentence Entered January 30, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000200-2016
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 24, 2019
Appellant, Gabrielle Victoria Ayala, appeals from the judgment of
sentence entered on January 30, 2019, in the Franklin County Court of
Common Pleas following the revocation of her probation. 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 and procedural history of this case
as follows:
On August 10, 2015, the Pennsylvania State Police charged
[Appellant] with Retail Theft,1 graded as a felony of the third
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* Retired Senior Judge assigned to the Superior Court.
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degree. See Police Criminal Complaint. The Public Defender’s
Office was appointed to represent [Appellant]. After a number of
continuances, [Appellant] appeared with counsel before the
issuing authority and waived her right to a preliminary hearing on
February 2, 2016. See Waiver of Preliminary Hearing, February 2,
2016.
1 18 Pa.C.S. § 3929(a)(1).
The Commonwealth filed an Information charging
[Appellant] with Retail Theft (F3) on March 4, 2016. See
Information, March 4, 2016. [Appellant] entered a plea of not
guilty in this court on March 9, 2016. Id.
After a number of continuances of trial, the parties appeared
before the court on August 11, 2016; at that time, [Appellant]
entered into a negotiated plea agreement with the
Commonwealth. See Order, August 11, 2016, and attached Plea
Agreement. In exchange for [Appellant’s] plea of guilty to the
charge as filed, the Commonwealth agreed to, inter alia, a pled-
to sentence of not less than time-served to twelve (12) months in
the county jail, followed by twelve (12) months of probation. Id.
The court accepted [Appellant’s] plea and the agreement with the
Commonwealth and immediately imposed the agreed-upon
sentence. See Order of Court, August 11, 2016.
On May 25, 2017, the court found2 [Appellant] in violation
of . . . parole . . ., and recommitted her to the county jail to serve
the balance of the sentence; the twelve-month probationary
period was reinstated at the expiration of the parole sentence.
See Order of Court, May 25, 2017. [Appellant] was paroled on
October 6, 2017.
2 [Appellant] waived her Gagon I & II hearings. See
Order of Court, May 25, 2017.
On December 4, 2018, the Adult Probation Department filed
a Notification of Hearing for Violation of Probation, Parole,
Intermediate Punishment, or Conditions of Suspended Sentence
(Notification). The Probation Department alleged [Appellant] was
in violation of the probation period of the sentence due to being
charged with multiple counts of drug trafficking and related
offenses in the State of Maryland, being charged with Retail Theft
(F3) by the Chambersburg Police Department (Franklin County),
failing to comply with special conditions of probation (drug &
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alcohol treatment and community service), and failing to pay
fines/costs/restitution. See Notification, ¶¶ 1–4.
On January 23, 2019, [Appellant] appeared before the court
in this matter and in three un-related charges of Retail Theft (F3)
that had been filed3 against [Appellant]. See Transcript of
Proceedings of Plea Colloquy, January 23, 2019. [Appellant]
entered a negotiated plea agreement with the Commonwealth on
the new offenses, and sentencing was deferred until January 30,
2019, for consideration with this violation case. Id., p. 10.
3 Docket Numbers CP-28-CR-0002216-2018, CP-28-
CR-0002320-2018, and CP-28-CR-0002321-2018.
On January 30, 2019, [Appellant] appeared before this court
with counsel and knowingly and voluntarily waived her right to a
Gagon II hearing. See Order of Court, January 30, 2019.
[Appellant] admitted to failing to live as a law abiding citizen (the
aforementioned Retail Theft pleas), possessing a controlled
substance and paraphernalia, and failed to make payments on
fines/costs/restitution as directed; [Appellant] denied failing to
comply with special conditions of the sentence. See Transcript of
Proceedings of Re-sentencing Hearing, January 30, 2019, p. 4.
The court accepted her waiver, her acknowledgement of being in
violation of probation, and proceeded to resentencing.
After hearing argument from counsel and [Appellant’s]
statements, the [c]ourt imposed a sentence of not less than
twenty-four (24) months to not more than eighty-four (84)
months[1] in the state correctional system.4 [Appellant] filed a
Post-Sentence Motion seeking modification of sentence on
February 6, 2019. The Court issued an order determining
hearing/argument to be unnecessary and directed the
Commonwealth to file a response by February 22, 2019. See
Order, February 7, 2019. The Commonwealth timely complied.
4 The sentences for the new offenses resulted from
the plea agreement between the parties whereby
those sentences would be state sentences and be
consecutive to the sentence herein. See Transcript of
Proceedings of Plea Colloquy, January 23, 2019, p. 5.
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1 The court granted “credit for time previously served.” Sentencing order,
1/30/19.
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However, before this court decided the Post-Sentence
Motion, [Appellant] filed a Notice of Appeal to the Superior Court.5
See Notice of Appeal, March 1, 2019. That same day, the court
directed [Appellant] to file a concise statement of matters
complained of on appeal. See Order, March 1, 2019. [Appellant]
timely complied on March 19, 2019. See Concise Statement of
Matters Complained of on Appeal (Concise Statement), March 19,
2019.
5 Because the sentence in this case was imposed after
revocation of probation, [Appellant’s] Post-Sentence
Motion did not toll the thirty day period to perfect an
appeal in the Superior Court. See Pa.R.Crim.P. 708.
Trial Court Opinion, 3/25/19, at 1–5.
Before we address any question raised on appeal, we 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;
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(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 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, 5/8/19, at ¶ 7. Additionally, counsel sent a letter to Appellant, and
he attached a copy of the letter to his motion. Counsel informed Appellant
that he has filed a motion to withdraw and an Anders brief, and he apprised
Appellant of his immediate right to proceed pro se or with private counsel, in
light of the motion to withdraw as counsel. Id. at Exhibit A. 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
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.
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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, and refers to an issue
of arguable merit.2 Anders Brief at 7–12. Further, the brief advances
counsel’s conclusion that the appeal is frivolous and the reasons for counsel’s
conclusion. Id. at 13–14. Accordingly, we proceed to examine the issue
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 8. However, counsel
set forth one possible issue on Appellant’s behalf:
1. Did the trial court abuse its discretion when it sentenced
[Appellant] on January 30, 2019 to a sentence of twenty-four (24)
months to eighty-four (84) months in a State Correctional
Institution in case no. 200-2016?
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2 While counsel did not attach a certificate of service to the brief or application
to withdraw as cousel, the letter to Appellant indicates that the brief and
withdrawal request were attached. Moreover, we have overlooked counsel’s
failure to cite to the record in his brief, but remind counsel of his duty to do
so. See Pa.R.A.P. 2117(a)(4) (Statement of the case shall contain, inter alia,
“an appropriate reference in each instance to the place in the record where
the evidence substantiating the fact relied on may be found.”); Santiago, 978
A.2d at 361 (emphasis added) (“in the Anders brief that accompanies . . .
counsel’s petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record.”).
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Anders Brief at 7.
Appellant’s issue presents a challenge to the discretionary aspects of his
sentence, and it is well settled that “[t]he right to appellate review of the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). When an appellant challenges
the discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. Hill, 210 A.3d 1104,
1116 (Pa. Super. 2019). Moreover, when considering the merits of a
discretionary-aspects-of-sentencing claim, we analyze the sentencing court’s
decision under an abuse-of-discretion standard. Commonwealth v. Dodge,
77 A.3d 1263, 1274 (Pa. Super. 2013).3
As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 708; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed
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3 We recognize that the sentencing guidelines do not apply to a revocation
sentence. 204 Pa. Code § 303.1(b); Commonwealth v. Pasture, 107 A.3d
21, 27 (Pa. 2014).
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from is not appropriate under the Sentencing Code,
42 Pa.C.S.A. § 9781(b).
Id. at 170. Whether a particular issue constitutes a substantial question about
the appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Hill, 210 A.3d at 1116.
Herein, Appellant filed a timely appeal and preserved the issue in his
post-sentence motion. Appellant has included a Pa.R.A.P. 2119(f) statement
in his brief. Thus, we determine whether Appellant has raised a substantial
question that the sentence imposed is inappropriate under the Sentencing
Code. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).
Appellant asserts that the sentence imposed was manifestly
unreasonable. Anders Brief at 9. Specifically, Appellant posits that a
reasonable sentence would have been either eighteen to sixty months of
imprisonment as recommended by Franklin County Adult Probation or nine to
sixty months as counsel advanced in his argument at re-sentencing. Id. at 9,
12. While counsel asserts in the Pa.R.A.P. 2119(f) statement that he was
unable to advance a colorable argument that the sentence imposed was
inconsistent with a specific provision of the Sentencing Code, Anders Brief at
10, it is clear he contends that the court failed to consider Appellant’s drug
addiction, which she alleged was at the root of her criminal conduct, and
therefore, failed to consider mitigating factors. Id. at 12. We conclude that
Appellant raised a substantial question that the sentence appealed is not
appropriate under the Sentencing Code, but we find that the claim lacks merit.
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See Commonwealth v. Caldwell, 117 A.3d 763, 769-770 (Pa. Super. 2015)
(en banc) (holding that an assertion that a sentence is excessive, in
conjunction with a claim that the trial court failed to consider mitigating
factors, raises a substantial question).
At sentencing, defense counsel had ample opportunity to provide the
court with a background of relevant mitigating factors. N.T., 1/30/19, at 7–
9. Counsel averred that Appellant’s drug addiction “inspire[d] a lot of what’s
happened here.” Id. at 8. Counsel emphasized that Appellant has children
who will “inspire her to do better.” Id. at 7. Appellant, herself, addressed
the court and also emphasized her reliance on drugs and her responsibility to
her children. Id. at 9–10.
The sentencing judge has broad discretion in determining the proper
penalty, and this Court accords the sentencing court great deference because
the sentencing court is in the best position to view a defendant’s character,
displays of remorse, defiance, or indifference, and the overall effect and
nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (quotations and citations omitted). As we have stated, “In particular,
the court should refer to the defendant’s prior criminal record, his age,
personal characteristics and his potential for rehabilitation.” Commonwealth
v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).
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The trial court reviewed all relevant and available information, and
informed Appellant of the basis for the sentence. In relevant part, the trial
court stated:
[By the court:] Ms. Ayala, in imposing sentence, I’ve considered
the Fulton County Adult Probation Department’s probation
violation sentence summary sheet and all the attachments there
to and I’ve considered the comments of counsel. I’ve considered
your comments today and I’ve considered your prior record as laid
out by the day. And I think it’s quite relevant to explain some
things in regards to the [c]ourt’s sentence.
The first of which is your record begins, at least as far as we
know, from 2009 with the paraphernalia charge out of North
Hamilton County in Pennsylvania[. T]here’s a DUI out of West
Virginia in 2015, prostitution out of West Virginia in 2015, three
retail thefts at the felony level in Virginia in 2016; Delaware, two
counts in 2015; there’s an accident involving damage out of
Delaware, 2015; another retail theft, felony level, out of this
County in 2016; retail theft, felony level, out of this County in
2017; there is a theft conviction out of the State of Maryland from
2018; and then begins a number of pending theft offenses in the
State of Maryland, State of West Virginia, Cumberland County,
Pennsylvania and more out of Virginia that are all pending at some
level.
What’s interesting to the [c]ourt based upon your
comments, Ms. Ayala, is that you have a son who’s 9 years old
and it would appear that your criminal career launched sometime
around the time you began having children. So it’s a bit
disingenuous in the [c]ourt’s mind that your children have been
any kind of incentive for you to reform your conduct to comply
with the law.
In fact, based on your criminal record, it would appear that
you care very little for your children. Your repeated violations of
the law have basically ensured that you will not be available to
them as a mother and that is as basic [a] violation of human
decency as you can have.
The mother of a child is basically the child’s last line of
defense against the world. Sometimes there’s a father,
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sometimes there’s not, but the mother in almost all cases is the
last one available to the child. And if she can’t prioritize the child
in her life and in your case children in your life[,] that’s quite
frankly, pretty disgusting.
My opinion, Ms. Ayala, is—I fall somewhere between
w[h]ere the Commonwealth is saying you’re not rehabilitatively
capable and your attorney who says you absolutely are. It could
be that your children are incentive for you to bring your behavior
in conformance with the law. There’s not much evidence of that,
if any.
The other side of it is, there’s a substantial amount of
evidence that you’re going to continue to victimize the
community. Retail theft, unlike other types of theft, has a rippling
effect. You steal an individual’s car, you victimize that individual
and maybe their family, it makes it difficult for them to provide
transportation for themselves and others and their family.
You steal from a store, the store doesn’t just absorb that
cost. In other words, the store will pass that cost along to
everyone else who obeys the law and pays for the goods that are
offered for sale and that results in higher prices. So your
victimization is not just of the business and having to pay for
security personnel and security systems and those things, but it
goes beyond that to all the customers of that business. They now
suffer because of your conduct. And that includes people in
Virginia, West Virginia, North Hamilton County, the State of
Maryland, and Fulton County.
That’s setting aside the fact that you committed similar
offenses while under supervision for similar conduct. There can
really be no better evidence that you have not reformed than to
go out and do the same thing.
N.T., 1/30/19, 11–14.
The trial court set forth its considerations, explained the basis for the
sentence, and considered the mitigating factors put forth by Appellant.
Accordingly, we discern no abuse of discretion in the sentence imposed.
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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 issue raised
by counsel and our independent review of the record, we conclude that an
appeal in this matter is frivolous.4 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: 09/24/2019
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4 When reviewing the outcome of a revocation proceeding, this Court is limited
to determining the validity of the proceeding, the legality of the judgment of
sentence imposed after probation revocation, and the discretionary aspects of
sentencing. Cartrette, 83 A.3d at 1035–1037.
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