J-S38033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYLER JONATHAN WILLIAMS :
:
Appellant : No. 291 MDA 2020
Appeal from the Judgment of Sentence Entered September 12, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002541-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYLER JONATHAN WILLIAMS :
:
Appellant : No. 292 MDA 2020
Appeal from the Judgment of Sentence Entered September 12, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002540-2019
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 10, 2020
Appellant, Tyler Jonathan Williams, appeals from the September 12,
2019, judgment of sentence entered in the Court of Common Pleas of Luzerne
County following his open guilty pleas to two separate incidents of flight to
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* Former Justice specially assigned to the Superior Court.
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avoid apprehension1 with one count docketed at CP-40-CR-0002540-2019
(“2540-2019”) and one count docketed at CP-40-CR-0002541-2019 (“2541-
2019”). Additionally, Appellant’s counsel has filed a petition seeking to
withdraw his representation, as well as a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter “Anders brief”).
After a careful review, we grant counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
The relevant facts and procedural history are as follows: The lower
court issued an arrest warrant for Appellant while he was on parole with regard
to two unrelated cases.2 Thereafter, on two separate occasions in June of
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1 18 Pa.C.S.A. § 5126(a).
2 Prior to the instant offenses, Appellant was convicted and sentenced for
criminal trespass and theft by unlawful taking, docketed at CP-40-CR-
0000993-2015 (“993-2015”), as well as criminal trespass, docketed at CP-40-
CR-0003405-2016 (“3405-2016”). While Appellant was on parole with regard
to these two cases, for reasons unclear from the instant record, the trial court
issued a warrant for Appellant’s arrest on June 10, 2019. The instant offenses
at docket numbers 2540-2019 and 2541-2019 arose from the police officers’
attempts to serve the arrest warrant upon Appellant.
On July 26, 2019, Appellant appeared before the Honorable Michael T.
Vough for a revocation hearing with regard to docket numbers 993-2015 and
3405-2016. Judge Vough revoked Appellant’s parole. With regard to docket
number 993-2015, he sentenced Appellant to an aggregate of nine months to
twenty-three months in prison. With regard to docket number 3405-2016, he
sentenced Appellant to two years of probation, to run consecutively to the
sentence imposed at docket number 993-2015.
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2019, Appellant fled from Nanticoke police officers, who were attempting to
execute the arrest warrant.3 N.T., 9/12/19, at 5-6.
As indicated supra, in connection with his attempts to evade capture,
Appellant was charged with separate offenses at two lower court docket
numbers. The trial court consolidated the cases. On September 12, 2019,
Appellant, who was represented by counsel, appeared before Judge Vough,
and he entered open guilty pleas to two separate charges of flight to avoid
apprehension.
Appellant, noting Judge Vough had previously sat for Appellant’s
revocation of parole hearing in two unrelated cases, specifically waived his
right to a presentence investigation in the instant matter. Id. at 5. However,
Appellant’s counsel offered the following information on behalf of Appellant:
I was not at [Appellant’s] parole violation hearing. I
represented him on two charges, coincidentally one being on June
21st of ’19 with Hanover Township, a harassment by
communication with his girlfriend.
He had another one out of Hanover Township on June 19 th.
They both resolved by summary harassment pleas at the
magistrate. The last one ended today.
From my knowledge of the case, it all happened at the same
time, but they’ve all been processed at different points. He and
his girlfriend have a child, [who is a] one year old. It was a bitter
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3 Specifically, with regard to docket number 2541-2019, Appellant fled from
the Nanticoke police on June 12, 2019, and with regard to docket number
2540-2019, Appellant fled from the Nanticoke police on June 21, 2019. N.T.,
9/12/19, at 5-6.
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dispute in separation. They both have three-year PFAs against
each other.
He was using drugs. He was out of control during this time
period as a result of all of this happening. Since then, luckily now,
he has reunited with his family, his grandmother, his mother.
He’s serving your sentence. The Commonwealth has agreed
to make these concurrent to each other.[4] If you think it’s
appropriate that there will be additional supervision after serving
the sentence on your case, I don’t believe you made him
immediately eligible for parole.
I did talk to him possibly about getting case management
with a bed-to-bed release on your earlier case.
Id. at 7-8 (footnote added).
At the conclusion of the hearing, the trial court sentenced Appellant as
follows: For the offense docketed at 2540-2019, one-year of probation, to run
consecutively to the sentences imposed in the unrelated parole revocation
cases. For the offense docketed at 2541-2019, one-year of probation, to run
concurrently to the sentence docketed at 2450-2019.5
On September 18, 2019, Appellant filed a timely, counseled motion for
modification of his sentence. Therein, Appellant averred the trial court abused
its discretion in imposing his sentence at 2540-2019 consecutively to the
sentences imposed in his unrelated parole revocation cases. Appellant argued
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4 During the guilty plea hearing, the Commonwealth advised the trial court
that each of Appellant’s offenses carried a “maximum of two years and a
maximum fine of $5,000.” Id. at 2. The Commonwealth noted there was no
agreement to sentencing but that the Commonwealth “doesn’t object to these
cases running concurrent to each other.” Id.
5Appellant was provided with his post-sentence rights and appellate rights.
Id. at 8.
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the consecutive nature of the sentence resulted in an excessive period of
probation. By order entered on January 15, 2020, the trial court denied
Appellant’s motion for modification of his sentence. On February 13, 2020,
Appellant filed a separate counseled notice of appeal at each lower court
docket number, and this Court sua sponte consolidated the appeals. All
Pa.R.A.P. 1925 requirements have been sufficiently met.6
On May 27, 2020, counsel filed in this Court a petition seeking to
withdraw his representation, as well as an Anders brief. Appellant filed no
further submissions either pro se or through privately-retained counsel.
Prior to addressing any issue raised on appeal, we must first resolve
counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa.Super. 2007) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal
pursuant to which 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.
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6 In response to the trial court’s Pa.R.A.P. 1925(a) order, counsel filed a
statement pursuant to Pa.R.A.P. 1925(c)(4) indicating his intent to file an
Anders/Santiago brief.
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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago 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, 602 Pa. at 178-79, 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 court’s attention in addition to the points raised
by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super. 2007) (citation omitted). Substantial compliance with the
Anders requirements is sufficient. See id.
Herein, counsel contemporaneously filed his petition to withdraw as
counsel and Anders brief. His brief and petition substantially comply with the
technical requirements of Anders and Santiago. Moreover, counsel has
provided this Court with a copy of the letter, which he sent to Appellant
advising him of his right to retain new counsel, proceed further with his case
pro se, and raise any points that he deems worthy of this Court’s attention.
See Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005).
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Therefore, we proceed to examine the issues counsel identified in the Anders
brief and then 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) (quotation omitted).
Counsel has set forth the following issue in the “Statement of Questions
Presented” portion of the Anders brief (verbatim):
1. Whether the trial court abused its discretion and impose [sic]
an unduly harsh sentence when it imposed an aggregate term
of probation of 1 year on two cases, but ran that probation
consecutive to any other previous sentence?
Anders Brief at 2.
Appellant argues the trial court abused its discretion in imposing an
unduly harsh sentence when it ordered the sentence for docket number 2540-
2019 to run consecutively, as opposed to concurrently, to his sentences in the
unrelated parole revocation cases.7 Appellant argues the consecutive nature
of the sentence resulted in an excessive period of probation.
When an appellant challenges the discretionary aspects of his sentence,
we must consider his brief on this issue as a petition for permission to appeal.
See Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010). Prior to
reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1)
whether [A]ppellant has filed a timely notice of appeal, see
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7 Appellant acknowledges the trial court ordered his sentence for docket
number 2541-2019 to run concurrently with his sentence for docket number
2540-2019.
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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 [A]ppellant’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).
Moury, 992 A.2d at 170 (citation omitted).
In the case sub judice, Appellant satisfied the first three requirements
of Moury. He filed a timely notice of appeal, preserved his issue in his motion
for modification of sentence, and included a Pa.R.A.P. 2119(f) statement in
his brief. Turning to the fourth requirement, we have found that a substantial
question exists “when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Phillips, 946
A.2d 103, 112 (Pa.Super. 2008).
By way of background,
[w]e have stated that the imposition of consecutive rather than
concurrent sentences lies within the sound discretion of the
sentencing court. Long standing precedent of this Court
recognizes that 42 Pa.C.S.[A.] § 9721 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. A challenge to the imposition of consecutive
rather than concurrent sentences does not present a substantial
question regarding the discretionary aspects of sentence.
Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008) (citations
omitted).
Subsequently, we recognized:
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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 substantial
question.
Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa.Super. 2018) (citing
Moury, 992 A.2d at 171–72 (“The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances[.]”)).
In the case sub judice, Appellant’s bald claim of excessiveness due to
the consecutive nature of Appellant’s sentence at 2540-2019 as it relates to
the unrelated parole revocation cases, without more, does not raise a
substantial question warranting the exercise of this Court’s discretionary
review.8 Radecki, supra. Thus, Appellant is not entitled to relief on this
claim.
After examining the issue contained in the Anders brief, we agree with
counsel that the appeal is wholly frivolous. “Furthermore, after conducting a
full examination of all the proceedings as required pursuant to Anders, we
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8 In the Anders brief, counsel suggests, for the first time, that the trial court
failed to consider the mitigating circumstances in imposing Appellant’s
sentence at 2540-2019 consecutively to the unrelated parole revocation
cases. This issue has been waived as Appellant did not challenge the court’s
consideration of the mitigating circumstances in the lower court. See Moury,
supra.
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discern no non-frivolous issues to be raised on appeal.” Yorgey, 188 A.3d at
1195. Thus, we grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2020
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