Com. v. Bailey, K.

J-S27035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN R. BAILEY :
:
Appellant : No. 1628 WDA 2018

Appeal from the Judgment of Sentence Entered October 26, 2018
In the Court of Common Pleas of Crawford County Criminal Division at
No: CP-20-CR-0000485-2018

BEFORE: OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED DECEMBER 31, 2019

Appellant, Kevin R. Bailey, appeals from the judgment of sentence

imposed by the Honorable Mark D. Stevens, after entering a guilty plea to

three counts of Rape of a Child, one count of Involuntary Deviate Sexual

Intercourse of a Child (IDSI) and two counts of Aggravated Indecent Assault.1

Appellant’s counsel has filed a petition to withdraw and an Anders2 brief,

stating that the appeal is wholly frivolous. After careful review, we affirm and

grant counsel’s petition to withdraw.

1 18 Pa.C.S. §§ 3121(c), 3123 (b), 3125 (a)(7), respectively.
2 Anders v. California, 386 U.S. 738 (1967).

* Retired Senior Judge assigned to the Superior Court.
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The facts underlying this appeal are as follows. On multiple occasions

between January 1, 2017 and March 14, 2018, Appellant touched the vagina

of his biological daughter, J.L.B., with his fingers and tongue. J.L.B. would

have been six years old when the abuse started. Appellant was arrested and

charged with 51 total counts, including multiple charges of Rape of a Child,

IDSI of a Child, Aggravated Indecent Assault, Indecent Assault, Endangering

the Welfare of a Child and Corrupting the Morals of a Child. Appellant made

an admission to police that he touched the vagina of his daughter with his

tongue and fingers at least thirty times.

On September 6, 2018, Appellant entered into a guilty plea to three

counts of Rape of a Child, one count of IDSI of a Child and two counts of

Aggravated Indecent Assault. On October 26, 2018, Appellant was sentenced.

The trial court sentenced Appellant to 240-480 months’ incarceration on each

charge of Rape of a Child, to run concurrent. Appellant was sentenced to 240-

480 months’ incarceration as to the count of IDSI of a Child, to run

consecutively to the counts above. As to the two charges of Aggravated

Indecent Assault, Appellant was sentenced on each charge to 60-120 months’

incarceration to run concurrent to the count of IDSI of a Child but consecutive

to the counts of Rape of a Child. Appellant received an aggregate sentence of

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480 to 960 months’ incarceration (40-80 years’ incarceration). Appellant was

also advised that he must comply with lifetime registration under SORNA, as

a Tier III offender.3 Appellant filed a timely post-sentence motion, requesting

that the trial court modify his sentence to run all of his counts concurrently

and to “modify his sentence at count 1-3 and 11 not to be at the top of the

standard range.” Appellant’s Motion for Reconsideration, 11/2/18. The trial

court denied Appellant’s motion. On November 9, 2018, Appellant filed this

timely direct appeal.4

On December 9, 2019, Counsel filed an Anders Brief, in which he

presented the following issue:

Whether Appellant has any non-frivolous issues to raise on
appeal?

Anders Brief at 5.

On December 9, 2019, Counsel sent a letter to Appellant, informing him

that he intended to file an Anders brief and petition to withdraw. On

3 42 Pa.C.S. § 9799.23.

4Appellant timely filed his statement of errors complained of on appeal on
November 30, 2018. The trial court entered its opinion on December 13,
2018.

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December 13, 2019, the Commonwealth sent a letter to this Court stating that

it did not intend to file a responsive brief.5

“When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (internal citation omitted). An Anders brief shall comply with the

requirements set forth by the Supreme Court of Pennsylvania in

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009):

[W]e hold 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.

5 Appellant has been represented by the Crawford County Public Defender
throughout the guilty plea and this direct appeal. Appellant’s original counsel
on direct appeal submitted an Anders brief and application to withdraw on
March 30, 2019, but did not attach the notes of testimony from the guilty plea.
On July 15, 2019, this Court denied counsel’s motion to withdraw and
remanded the appeal, retaining jurisdiction, to allow counsel to obtain the
transcripts and submit an appellate brief or new Anders brief. See
Commonwealth v. Flowers, 113 A.3d 1246, 1251 (Pa. Super. 2015) (Court
determined that counsel could not have fulfilled his duty to review the entire
record for any non-frivolous issues where notes of testimony from appellant’s
guilty plea were not a part of the record). After a second remand on
September 30, 2019, to determine the status of counsel, a newly appointed
Defender entered his appearance on December 2, 2019 and filed this current
Anders brief and application to withdraw as counsel. Counsel reviewed and
attached the notes of testimony from Appellant’s guilty plea to this Anders
brief.

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Counsel seeking to withdraw on direct appeal must meet the following

obligations to his or her client:

Counsel must also provide a copy of the Anders brief to his client.
Attending the brief must be a letter that advises the client of his
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 court’s attention in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks, citation, and brackets omitted). 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. Commonwealth v. Yorgey, 188 A.3d

1190, 1196 (Pa. Super. 2018) (en banc); Commonwealth v. Dempster, 187

A.3d 266, 271 (Pa. Super. 2018) (en banc). This Court first considers the

issues raised by counsel in the Anders brief and then conducts an examination

of the record to discern if there are any other issues of arguable merit

overlooked by counsel. Commonwealth v. Prieto, 206 A.3d 529, 533 (Pa.

Super. 2019); Yorgey, 188 A.3d at 1197.

In this appeal, we observe that Appellant was provided with a copy of

the Anders brief. Appellant was informed of his right to proceed pro se or to

retain new counsel to raise any points he deems worthy of the Court’s

attention. Appellant filed a pro se response to counsel’s Anders brief on

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December 24, 2019.6 Further, Counsel’s Anders Brief, at 6-7, complies with

prevailing law in that Counsel has provided a procedural and factual summary

of the case with references to the record. Counsel believes there is nothing

in the record that arguably supports the appeal. Anders brief at 16, 19.

Ultimately, Counsel cites his reasons and conclusion that Appellant’s “case

presents no non-frivolous issues for review.” Id. at 20. Counsel’s Anders

brief and procedures, therefore, comply with the technical requirements of

Santiago and Orellana. We therefore proceed to conduct an independent

review to ascertain whether the appeal is indeed wholly frivolous.

This Court first considers the issues raised by counsel in the Anders

brief and determines whether they are in fact frivolous. Yorgey, 188 A.3d at

1197; 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 first issue raised in counsel’s Anders brief is whether the sentencing

court was within its discretion in sentencing Appellant within the standard

range and running some counts consecutive and others concurrent. Anders

Brief at 12. Appellant argues that the trial court abused its discretion in

sentencing him to the high end of the standard range and sentencing him to

6In his pro se response, Appellant requested a new attorney in order to fully
brief the issue that his sentence is manifestly excessive.

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consecutive sentences for three of the counts. Appellant’s Pa.R.A.P. 1925(b)

Statement of Errors Complained of on Appeal, 11/30/18. Appellant argues

that the sentence is clearly unreasonable despite being within the standard

range because it will effectively be a death sentence. Id. Appellant avers the

sentence is contrary to the fundamental norms underlying the sentencing

process because it is manifestly excessive. Id.

Appellant’s first issue is a challenge to the discretionary aspects of

Appellant’s sentences and are therefore not appealable as of right.

Dempster, 187 A.3d at 272; Commonwealth v. Bynum-Hamilton, 135

A.3d 179, 184 (Pa. Super. 2016).

Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, 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. 720;
(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 from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018). Appellant filed a timely notice of appeal and properly preserved this

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issue in a post-sentence motion.7 We must now determine whether Appellant

has raised a substantial question for review.

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).

An appellant may raise a substantial question where he receives

consecutive sentences within the guideline ranges if the case involves

circumstances where the application of the guidelines would be clearly

unreasonable, resulting in an excessive sentence; however, a bald claim of

excessiveness due to the consecutive nature of a sentence will not raise a

7 Counsel did not provide a Pa.R.A.P. 2119(f) statement in his Anders brief.
In cases 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).
Accordingly, we do not consider this defect as precluding review of whether
Appellant’s issue is frivolous. Additionally, we note the Commonwealth did
not file a brief, nor did they object to this defect. See Commonwealth v.
Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (declining to find waiver of
sentencing claim due to lack of Pa.R.A.P. 2119(f) statement where
Commonwealth did not object); See also Commonwealth v. Dodge, 77
A.3d 1263, 1271 (Pa. Super. 2013).

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substantial question. Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa.

Super. 2018) (internal citations omitted).

Generally, Pennsylvania law “affords the sentencing court discretion to

impose its sentence concurrently or consecutively to other sentences being

imposed at the same time or to sentences already imposed. Any challenge to

the exercise of this discretion ordinarily does not raise a substantial question.”

Commonwealth v. Pass, 914 A.2d 442, 446–47 (Pa. Super. 2006). See

also Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995)

(stating appellant is not entitled to “volume discount” for his crimes by having

all sentences run concurrently). “Thus, in our view, the key to resolving the

preliminary substantial question inquiry is whether the decision to sentence

consecutively raises the aggregate sentence to, what appears upon its face to

be, an excessive level in light of the criminal conduct at issue in the case.”

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (internal

citation omitted). See Commonwealth v. Moury, 992 A.2d 162, 171–72

(Pa. Super. 2010) (“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.”).

We find that Appellant did not raise a substantial issue for review. See

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (holding

consecutive, standard range sentences on thirty-seven counts of theft-related

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offenses for aggregate sentence of 58 ½ to 124 years' imprisonment

constituted virtual life sentence and, thus, was so manifestly excessive as to

raise substantial question, and appellant also raised a challenge to trial court’s

failure to consider mitigating factors). See Commonwealth v.

Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010) (appellant was the

“mastermind” behind the illegal harvesting of body parts from 244 corpses in

Pennsylvania, falsified records, destroyed evidence, and placed diseased

tissue into the stream of commerce, pled guilty to 1,353 criminal counts.

Court determined that aggregate sentence of twenty-five years to fifty-eight

years in prison is neither grossly disparate to appellant’s conduct nor does it

viscerally appear as patently unreasonable and appellant did not present a

substantial question for review because the decision to sentence consecutively

did not raise the aggregate sentence to, what appears upon its face to be, an

excessive level in light of the criminal conduct at issue in the case.) See

Prisk, 13 A.3d at 533 (appellant sentenced to 633-1500 years’ incarceration,

Court decided that although a substantial question appeared to exists on the

surface, court deemed the sentence was not excessive in light of the violent

criminal conduct of systematic sexual abuse of his stepdaughter which

occurred almost daily over six years). See also Commonwealth v.

Coulverson, 34 a.3d 135, 143 (Pa. Super. 2011) (appellant argued that his

sentence was manifestly excessive and trial court failed to consider mitigating

circumstances, Court found substantial question existed).

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Appellant’s argument that the imposition of consecutive sentences on

some of his charges is manifestly excessive because it will effectively be a

death sentence does not present a substantial question for our review. The

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. Radecki, 180 A.3d at 468-70; Commonwealth v. Zirkle, 107 A.3d

127, 133-34 (Pa. Super. 2014). The choice between consecutive and

concurrent sentences is solely within the discretion of the trial court. See,

e.g., Commonwealth v. Boyer, 856 A.2d 149, 153-54 (Pa. Super. 2004)

(and cases cited therein). We find this issue frivolous.

Appellant’s second issue is whether there was a basis for filing a motion

to suppress Appellant’s interview with investigators. Anders brief at 16. It

is well settled Pennsylvania law that by entering a negotiated guilty plea, a

defendant waives his right to challenge on direct appeal all non-jurisdictional

defects except the legality of the sentence and the validity of the plea. See

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991) (“[A]

plea of guilty amounts to a waiver of all defects and defenses except those

concerning the jurisdiction of the court, the legality of the sentence, and the

validity of the guilty plea.”); see also Commonwealth v. Moyer, 444 A.2d

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101 (Pa. 1982); Commonwealth v. Coles, 530 A.2d 453, 457 (Pa. Super.

1987). Moreover, 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.

Commonwealth v. Tareila, 895 A.2d 1266, 1270 n. 3 (Pa. Super. 2006).

See Commonwealth v. Lincoln, 72 A.3d 606, 609–610 (Pa. Super. 2013).

A review of the notes of testimony from Appellant’s guilty plea confirm

that Appellant did not object during the plea colloquy, nor did Appellant file a

motion to withdraw the plea. As such, Appellant has waived his right to

challenge an issue that does not concern the jurisdiction of the court, the

legality of the sentence, or the validity of the guilty plea. Additionally, if

Appellant chooses to challenge the failure of counsel to file a motion to

suppress, as it relates to an ineffectiveness of counsel challenge, he must do

so in a petition pursuant to the Post Conviction Relief Act (PCRA).8 “Claims of

ineffective assistance of counsel are to be deferred to PCRA review; trial courts

should not entertain claims of ineffectiveness upon post-verdict motions; and

such claims should not be reviewed upon direct appeal.” Commonwealth v.

Holmes, 79 A.3d 562, 576 (Pa. 2013). Accordingly, we find this issue

frivolous.

8
See 42 Pa.C.S. §§ 9541-9546.

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Appellant’s final issue concerns whether his prior record score was

properly calculated and whether there was any basis for challenging the

accuracy of the prior convictions in the pre-sentence investigative report.

Anders brief at 18. Appellant challenges the trial court's calculation of his

prior record score, contending that the grading of his prior conviction for

Burglary should be a misdemeanor and not a felony. This presents a challenge

to the discretionary aspects of his sentence. See Commonwealth v.

Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (internal citations omitted). A

claim that the trial court erroneously computed a defendant's prior record

score presents a substantial question. Commonwealth v. Johnson, 758

A.2d 1214, 1216 (Pa. Super. 2000). However, Appellant did not preserve this

issue at sentencing or in a motion to reconsider and modify sentence. See

Pa.R.Crim.P. 720; See Manivannan, 186 A.3d at 489. Accordingly, this issue

is waived and we find the issue frivolous.

Based on the foregoing, we agree with appellate counsel that the issues

raised by Appellant lack merit. In addition, we have reviewed the certified

record consistent with Flowers, 113 A.3d at 1250, and have discovered no

additional arguably meritorious issues. Therefore, we grant Appellate

counsel’s petition to withdraw and affirm the trial court’s judgment of

sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/31/2019

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