J-S10037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD EUGENE KERR :
:
Appellant : No. 935 MDA 2020
Appeal from the Judgment of Sentence Entered June 3, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000461-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED MAY 13, 2021
Ronald Eugene Kerr (Kerr) appeals from the judgment of sentence
imposed by the Court of Common Pleas of Lackawanna County (trial court)
after he pleaded guilty to one count of robbery. Counsel has filed a brief under
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), and a petition for leave to withdraw as
counsel. We grant the petition to withdraw and affirm the judgment of
sentence.
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* Retired Senior Judge assigned to the Superior Court.
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I.
A.
We take the following facts and procedural history from our independent
review of the record. Kerr entered a guilty plea to one count of robbery of a
financial institution under 18 Pa.C.S. § 3701(a)(1)(vi).1 Robbery under
subsection (vi) is a felony of the second degree. 18 Pa.C.S. § 3701(b). At
the guilty plea hearing, the Commonwealth gave a short factual summary of
Kerr’s offense, stating only that he threated a clerk at a Scranton check
cashing store during the commission of a robbery and that he removed money
from that institution. In exchange for Kerr pleading guilty to robbery, the
Commonwealth agreed that all other charges would be dismissed.
Additionally, though Kerr used a pellet gun during the robbery, the
Commonwealth agreed that it would not seek any weapon enhancements or
mandatories at sentencing.
Because he was awaiting a state parole violation hearing, Kerr requested
that the trial court sentence him that same day. The trial court, however,
wanted an updated presentence investigation (PSI) but agreed to expedite
sentencing to the next week. The PSI revealed that Kerr was a “REFEL” on
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1A person commits a robbery of a financial institution when, while committing
a theft, the person “takes or removes the money of a financial institution
without the permission of the financial institution by making a demand of an
employee of the financial instruction orally or in writing with the intent to
deprive the financial institution thereof.” 18 Pa.C.S. § 3701(a)(1)(vi).
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the prior record score scale. See 204 Pa. Code § 303.4(a)(2) (defining
“REFEL” as a repeat offender with prior felony 1 and felony 2 convictions
totaling 6 or more points in the prior record). Kerr’s robbery conviction,
meanwhile, had an offense gravity score of seven. See 204 Pa. Code § 303.15
(offense listing). As a result, the standard range guidelines recommended a
minimum term of incarceration between 35 and 45 months. 204 Pa. Code §
303.16(a) (basic sentencing matrix). In addition, “[f]or the Offense Gravity
Scores of 6 and 7, the court may impose a sentence that is up to 6 months
longer than the upper limit of the standard range.” 204 Pa. Code §
303.13(a)(3).
The Commonwealth began sentencing by stating that the victim did not
wish to be present. It noted, though, that Kerr used a pellet gun and tied her
up during the robbery. The Commonwealth represented that the victim
wanted the trial court to know that she was “absolutely petrified by [Kerr’s]
actions” and that she thought she would die. She also stated, however, that
she appreciated Kerr taking responsibility and confessing to the police. N.T.,
6/3/20, at 3.
In his allocution, Kerr apologized for his actions and their effect on the
victim, stating that he had no intention of ever hurting her during the robbery.
He explained that he committed the offense because of a lack of funds.
According to him, at the time of the offense, he was working 60 hours a week
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at Home Depot and doing carpentry on weekends to save up money to pay
for his mother’s senior care living.
After hearing from Kerr, the trial court explained how it viewed Kerr’s
actions:
Well, Mr. Kerr, I appreciate your efforts in trying to provide
an explanation. And, you know, in some ways you’re sounding as
if, you know, you’re defending Robin Hood. But, you know, Robin
Hood was still a thief.
What you do with the money does not in any way change
the impact on what it has on the victim. And you may have said
you never intended to hurt her. But when a criminal enterprise
such as this gets under way, there’s no predicting the way that
it’s going to turn out.
You don’t know how somebody is going to react. They don’t
know how you’re going to react. You don’t know if somebody else
is going to come in while the thing is in progress.
And, you know, as far as saying that it wasn’t quite planned,
do you always carry around zip locks in your pockets to have
handy to tie up her hands when you want to restrain her? I would
expect not.
So, I mean, this is really, really serious conduct. I
appreciate the fact that you are saying you regret what you’ve
done and that you regret the impact on her. But as you pointed
out, you took away her sense of safety. She will never feel the
same again in her lifetime.
There will always be a note of fear when someone is
approaching her. And that is really conduct that, you know, no
Commonwealth, no community can tolerate. And, you know, you
do have a prior robbery. And this was committed while you were
still serving the parole portion of that robbery.
So I’ve taken into consideration the nature and gravity of
the offense. I’ve taken into consideration your words here today.
I’ve taken into consideration your rehabilitative needs as well as
the contents of your presentence file.
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Id. at 7-9.
Having put its reasons on the record, the trial court sentenced Kerr in
the aggravated range, ordering him to serve 4 to 8 years’ imprisonment
consecutive to any other sentence that he was serving.2 Kerr expressed his
confusion by stating that it was his understanding that the pellet gun and
restraints used on the victim would not be part of the sentence. Id. at 11.
The trial court responded that it did not refer to the pellet gun in its reasons
for sentencing, instead relying on the threat of violence that Kerr made to the
victim. Id.
Out of precaution, though, the trial court asked the parties if its sentence
had violated the plea agreement in any way. The Commonwealth responded
that it had not, reminding the trial court that it had not sought the weapon
enhancement. Kerr’s counsel agreed. He explained that he told Kerr that he
would ask for a sentence within the standard range guidelines but, ultimately,
sentencing was up to the trial court. With those responses, the trial court
concluded the sentencing hearing.
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2 When a state parolee receives a new state sentence, the parolee must serve
their back time first before commencement of their new state sentence. See
61 Pa.C.S. § 6138(a)(5)(i).
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B.
While still represented by counsel, Kerr filed a pro se post-sentence
motion for reconsideration of sentence.3 In his motion, Kerr asserted several
bases for relief. First, he echoed his complaint at sentencing that the trial
court relied on facts that were not a part of his guilty plea. Second, he
contended that the trial court erred in allowing the Commonwealth to provide
the victim’s statements at sentencing, characterizing the Commonwealth’s
statement as hearsay because the victim never returned a victim impact
statement. Third, Kerr complained that the expedited PSI failed to include
that he did not receive any misconducts in the 17 months he spent in pretrial
incarceration, nor did it include any information about the re-entry programs
he completed. He also complained that the PSI did not include his version of
events or any of the letters of support that he wanted to present. Finally, he
argued that the trial court improperly considered that he was on state parole
when he committed the offense.
The trial court denied Kerr’s post-sentence motion and advised him that
he had 30 days to appeal, following which Kerr filed a timely notice of appeal.
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3 Though filed beyond ten days of sentencing, Kerr’s post-sentence motion
was timely because the tenth day for filing the motion fell on a Saturday. See
Pa.R.Crim.P. 720(A)(1) (“[A] written post-sentence motion shall be filed no
later than 10 days after imposition of sentence.”); 1 Pa.C.S. § 1908 (stating
that when computing statutory time periods where the last day of the period
being calculated falls “on Saturday or Sunday, or on any day made a legal
holiday ..., such day shall be omitted from the computation”).
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We later directed the trial court to determine Kerr’s eligibility for court-
appointed counsel. The trial court complied and appointed current counsel to
represent Kerr. After being ordered to do so, counsel filed a Pa.R.A.P. 1925(b)
statement listing six issues:
1. Did the trial court err as a matter of law or abuse its discretion
by allowing the Commonwealth to change the facts at the time of
sentence from the facts offered at the time of the guilty plea?
2. Did the trial court err as a matter of law or abuse its discretion
by allowing the Commonwealth to introduce hearsay evidence
from the alleged victim at [the] time of sentence?
3. Did the trial court err as a matter of law or abuse its discretion
in not considering any mitigating factors at the time of sentence?
4. Was trial counsel ineffective for failing to object to the
Commonwealth’s recitation of the facts at the time of sentence
which differed from the facts offered at the time of the guilty plea?
5. Was trial counsel ineffective for failing to file a motion for
reconsideration of sentence on behalf of [Kerr]?
6. Was trial counsel ineffective for advising [Kerr] that he could
not receive an aggravated sentence?
Pa.R.A.P. 1925(b) Statement, 11/17/20, at unpaginated 1-2.
Addressing the sentencing hearing, the trial court found no error in its
consideration of the facts that Kerr used a pellet gun and tied up the victim.
Besides Kerr’s counsel not objecting, the trial court pointed out that the
criminal information and the court’s file already included the offense’s facts.
The trial court also noted that Kerr did not deny that he brandished the pellet
gun and tied up the victim. Further, the trial court explained, it would have
been error to not consider the facts of the offense as part of its consideration
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of the protection of the public and gravity of the offense under 42 Pa.C.S.
§ 9721(b). The trial court reiterated that it did not consider the pellet gun
because the parties agreed there would be no weapon enhancement. Instead,
as it stated at sentencing, the trial court considered the gravity of the offense;
Kerr’s testimony; his rehabilitative needs; the PSI; the facts of the offense,
including the impact on the victim; and Kerr’s status as a state parolee when
he committed the offense.
The trial court also found no error in the Commonwealth presenting the
victim’s input. On this point, the trial court observed that the admissibility of
evidence is in its discretion and that it is not bound by the rules of evidence
at sentencing. As a result, since a sentencing court can consider any evidence
it deems relevant, the admission of hearsay is common at sentencing. The
trial court further noted that it was aware of the facts of the offense and Kerr
himself acknowledged the effect the offense would have had on the victim.
Finally, the trial court rejected Kerr’s assertion that it did not consider
any mitigating factors. As it stated at sentencing, the trial court considered
Kerr’s testimony, his rehabilitative needs and the contents of the PSI in
determining his sentence.4
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4The trial court also noted that any issues related to trial counsel effectiveness
were premature. TCO at 7 (citing Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002)).
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Kerr’s counsel has filed an Anders brief in which he claims that the
appeal is frivolous and requests permission from this Court to withdraw from
representation. Kerr did not respond to counsel’s Anders brief.
II.
We first address counsel’s petition to withdraw which must satisfy both
procedural and substantive requirements. Procedurally, 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. See Commonwealth v. Cartrette, 83 A.3d 1030, 1032
(Pa. Super. 2013).
Counsel has complied with these procedural mandates. The motion to
withdraw reflects that counsel reviewed the entire record and concluded that
the appeal is frivolous. See Petition to Withdraw as Counsel, 2/16/21, at 1.
Counsel certifies that he sent a copy of the Anders brief and petition to
withdraw to Kerr. Additionally, counsel’s letter advises Kerr of the right to
hire private counsel or raise pro se any additional arguments he would like us
to consider. See Letter from Kurt T. Lynott, Esquire to Kerr, 2/15/21.
Turning to the substantive elements, the brief accompanying counsel’s
petition to withdraw must (1) summarize the procedural history and facts of
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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. See Santiago, 978 A.2d at 361. Counsel’s Anders brief
summarizes the factual and procedural history, identifies three potential
issues for appeal, and outlines the legal reasons that led counsel to conclude
that any appeal would be frivolous.5
Because counsel has complied with these requirements, we now “make
a full examination of the proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.” Id. at 355 n.5. The
Anders brief identifies three issues that potentially support Kerr’s appeal.
III.
A.
In the first issue, counsel reasserts that the trial court erred in allowing
the Commonwealth to change the factual basis for the robbery at sentencing.
This complaint is essentially the same one that Kerr raised in his post-sentence
motion in which he argued that the trial court was precluded at sentencing
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5 We note that counsel failed to include the Pa.R.A.P. 1925(b) statement in
his Anders brief. Cf. Pa.R.A.P. 2111(d) (“In the Superior Court, there shall
be appended to the brief of the appellant a copy of the statement of errors
complained of on appeal, filed with the trial court pursuant to Pa.R.A.P.
1925(b).”). Because this omission does not affect our review, we will address
the claims raised in the Anders brief.
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from being able to consider that he used a pellet gun and tied up the victim
during the robbery, since the Commonwealth did not include those facts at
the guilty plea hearing. We find the issue meritless.
At a sentencing hearing, both the Commonwealth and the defendant
have the opportunity “to present information and argument relative to
sentencing.” Pa.R.Crim.P. 704(C)(1). Here, the Commonwealth’s statement
that Kerr found objectionable consisted of the following:
Judge, just on behalf of the Commonwealth, there is no
restitution. The money was found during Mr. Kerr’s cooperation
in the investigation. I reached out to the victim in this case [S.P.].
She is the clerk at the check cashing facility that was held at - -
with a pellet gun and tied up during the course of the robbery.
She did not want to be present.
However, she did indicate that she wanted me to advise the
Court that she was absolutely petrified by [Kerr’s] actions and
thought she was going to die. She also stated that she
appreciated the fact that [Kerr] took responsibility by admitting
and confessing to police in an interview and by pleading guilty.
N.T., 6/3/20, at 3.
We find no error in the Commonwealth commenting that Kerr committed
the robbery by using a pellet gun and restraining the victim, even though
those details were not mentioned at the guilty plea. Facts about the nature
and circumstances of the offense that are not necessarily elements of the
convicted offense are proper facts to consider in deciding to sentence in the
mitigated range or the aggravated minimum range. See Commonwealth v.
Darden, 531 A.2d 1144, 1149 (Pa. Super. 1987) (“... facts regarding the
nature and circumstances of the offense, which are not necessary elements of
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the offense for which appellant has been convicted, are also proper factors to
consider in deciding whether to sentence in the mitigated minimum range, the
aggravated minimum range, or outside the guidelines.”).
Kerr entered a guilty plea to robbery of a financial institution. Under
that offense, the Commonwealth need only prove that the defendant, while
committing a theft, “takes or removes the money of a financial institution
without the permission of the financial institution by making a demand of an
employee of the financial institution orally or in writing with the intent to
deprive the financial institution thereof.” 18 Pa.C.S. § 3701(a)(1). While
Kerr’s use of the pellet gun and restraint of the victim were unnecessary to
the elements of the offense, they were proper factors for the trial court to
consider in imposing a sentence of total confinement that takes into account
“the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S. § 9721(b).
Moreover, as the trial court pointed out, besides counsel not objecting
at the sentencing hearing, Kerr has never denied that he used the pellet gun
or that he tied the victim up during the robbery. See TCO at 5. In fact, during
his allocution, Kerr recognized the seriousness of his actions and the effect
they had on the victim. N.T., 6/3/20, at 6. Kerr, however, wants the benefit
of both avoiding the weapon enhancement and insulating the trial court from
considering the individualized facts of the offense that he committed. While
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he was entitled to and received the benefit of the former, he is not entitled to
the latter. See Darden, supra. For these reasons, we agree that the first
issue is meritless.
B.
Next, counsel reasserts Kerr’s other sentencing hearing complaint that
the trial court improperly allowed the Commonwealth to offer hearsay
evidence at sentencing from the victim because she did not want to be
present. As explained in his post-sentence motion, Kerr’s complaint was that
the victim did not submit a victim impact statement, but the Commonwealth
was still permitted to present the victim’s feelings about the offense. See
Motion for Reconsideration of Sentence, 6/15/20, at 3.
First, as the trial court points out in its opinion, Kerr’s counsel did not
object at sentencing to the Commonwealth informing the trial court about the
victim. As a result, to the extent there was an error, it would need to wait
until collateral review.
In any event, as this Court has explained:
The admissibility of evidence, including victim impact evidence,
rests with the sound discretion of the trial court. The conduct of
a sentencing hearing differs from the trial of the case. To
determine an appropriate penalty, the sentencing court may
consider any evidence it deems relevant. While due process
applies, the sentencing court is neither bound by the same rules
of evidence nor criminal procedure as it is in a criminal trial.
Commonwealth v. King, 182 A.3d 449, 455 (Pa. Super. 2018) (internal
quotations and citations omitted).
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The Commonwealth offered the victim’s input at sentencing to inform
the trial court that Kerr’s actions “petrified” her and put her in fear for her life.
Kerr himself acknowledged that his actions “robbed” the victim of her feeling
of security. N.T., 6/3/20, at 6. As a result, the victim’s input was not admitted
to prove a factual matter disputed by Kerr; indeed, he did not minimize his
actions or their effect on the victim. Additionally, as the trial court observed,
it was already aware that Kerr used a pellet gun and tied up the victim during
the robbery, and did not need to rely on the victim’s statement in inferring
that the victim was terrified by Kerr’s robbery. We find the issue lacking merit.
C.
Finally, counsel examines whether the sentencing court abused its
discretion in failing to consider any mitigating factors in sentencing Kerr in the
aggravated range. In finding the issue meritless, counsel notes that the trial
court considered Kerr’s statements, his rehabilitative needs and the PSI in
imposing its sentence. Moreover, the trial court put its reasons on the record
for sentencing Kerr in the aggravated range. When Kerr questioned whether
this violated his plea, the parties clarified that the agreement excluded only
the weapon enhancement. While counsel requested a sentence within the
standard range (which the Commonwealth did not oppose), the trial court still
had the final authority to fashion its sentence. After reviewing the record,
including both the guilty plea and sentencing transcripts, we agree.
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First, since this issue implicates the discretionary aspects of sentencing,
Kerr would need to invoke this Court’s jurisdiction by demonstrating that his
claim involves a “substantial question.”6 See generally Commonwealth v.
Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013). Because the trial court
sentenced him in the aggravated range, and Kerr asserted the trial court failed
to consider mitigating factors, Kerr’s challenge would raise a substantial
question. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014) (“This Court has held that an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.”).
A claim of excessive sentence is reviewed under an abuse of discretion
standard. See Commonwealth v. Perry, 883 A.2d 599, 603 (Pa. Super.
2005). In order to prevail on this challenge, Kerr would need to “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.
Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted).
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6 Kerr’s issue meets the procedural requirements for a challenge to the
discretionary aspects of sentencing because he has filed a timely notice of
appeal; preserved the issue in a post-sentence motion; and counsel has
included a Pa.R.A.P. 21119(f) statement.
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As quoted earlier, the trial court stated on the record that it considered
all the mitigating evidence presented by Kerr, including his own statements
and the information contained in the PSI.7 “Our Supreme Court has
determined that where the trial court is informed by a pre-sentence report, it
is presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Bullock, 170 A.3d 1109, 1126
(Pa. Super. 2017) (quoting Commonwealth v. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009)) (citation omitted).
Moreover, a sentencing court may deviate from the guidelines, if
necessary, to fashion a sentence that takes into account the protection of the
public, the rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact of the life of the victim and the
community. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001); see also 42 Pa.C.S. § 9721(b) (expressly stating that the trial court
may sentence outside the guidelines provided the court provides its reasons
for doing so on the record). Here, the trial court considered Kerr’s mitigating
evidence, but gave more weight to the gravity of the offense and the fact that
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7 Kerr averred in his post-sentence motion that there was additional mitigating
evidence that the trial court did not consider. Based on our review, however,
it does not appear that any of the additional mitigating evidence was
presented to the trial court. Indeed, in his post-sentence motion, Kerr does
not allege that he was prevented from presenting any evidence or supporting
witnesses at the sentencing hearing.
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Kerr committed the offense while on parole. These were proper considerations
for a sentence outside of the standard range guidelines, which the trial court
aptly explained on the record. Thus, we agree with counsel and cannot find
that the trial court imposed an excessive sentence or otherwise abused its
discretion with respect to the length of its sentence.
For all these reasons, Kerr is due no relief on his claims. Moreover, our
independent review of the record does not reveal any non-frivolous issues for
our review. We affirm the judgment of sentence and grant counsel’s
application to withdraw.
Judgment of sentence affirmed. Counsel’s application to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2021
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