J-S05012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONNA M. BREZNAY,
Appellant No. 1111 MDA 2016
Appeal from the Judgment of Sentence Entered June 1, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003780-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 17, 2017
Appellant, Donna M. Breznay, appeals from the judgment of sentence
of 27 to 54 months’ incarceration, imposed after she pled guilty to one count
of possession of a controlled substance by an inmate, 18 Pa.C.S. §
5123(a.2). Appellant seeks to raise one issue challenging the discretionary
aspects of her sentence. Additionally, her counsel, Ferris P. Webby, Esq.,
seeks to withdraw his representation of Appellant pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.
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*
Retired Senior Judge assigned to the Superior Court.
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Appellant pled guilty to the above-stated offense on March 14, 2016.
After a presentence report (PSI) was prepared, the court sentenced her on
June 1, 2016, to the term of incarceration stated supra. Appellant did not
file a post-sentence motion. Instead, she filed a timely notice of appeal on
June 27, 2016. The court then ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On July 12, 2016,
Appellant’s counsel - who at that time was Amanda M. Young, Esq., of the
Public Defender’s Office of Luzerne County - filed a Pa.R.A.P. 1925(c)(3)
statement of her intent to file an Anders brief and petition to withdraw. The
trial court nonetheless issued a Rule 1925(a) opinion on September 22,
2016.
On November 3, 2016, Attorney Webby - also a member of the Public
Defender’s Office of Luzerne County - entered his appearance with this Court
on Appellant’s behalf. On November 28, 2016, he filed with this Court a
petition to withdraw from representing Appellant. He also filed an Anders
brief, asserting that Appellant’s sentencing issue is frivolous, and that there
are no other, non-frivolous issues that counsel could assert on appeal.
Consequently,
[t]his Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
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(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 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 addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In this case, Attorney Webby’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could
arguably support Appellant’s sentencing claim, and he sets forth his
conclusion that Appellant’s appeal is frivolous. He also explains his reasons
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for reaching that determination, and supports his rationale with citations to
the record and pertinent legal authority. Attorney Webby states in his
petition to withdraw that he has supplied Appellant with a copy of his
Anders brief, and he attaches a letter directed to Appellant in which he
informs her of the rights enumerated in Nischan. Accordingly, counsel has
complied with the technical requirements for withdrawal. We will now
independently review the record to determine if Appellant’s sentencing issue
is frivolous, and to ascertain if there are any other, non-frivolous issues she
could pursue on appeal.
According to Attorney Webby, Appellant seeks to argue “that the trial
court should have imposed a lighter sentence due to her cooperation,
handicap, and involvement in prison programs.” Anders Brief at 3.
Appellant’s claim is a challenge to the discretionary aspects of her sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
We 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. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
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generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
question exists “only 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.” Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant filed a timely notice of appeal. However, our review of
the record confirms that she failed to preserve this claim orally at the time of
her sentencing hearing, or in a written post-sentence motion. Accordingly,
the issue Appellant seeks to raise on appeal is waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”); Commonwealth v. Mann, 820 A.2d 788, 794
(Pa. Super. 2003) (directing that issues challenging the discretionary aspects
of sentence must be raised in post-sentence motion or orally during
sentencing proceedings; “[a]bsent such efforts, an objection to a
discretionary aspect of a sentence is waived).
Nevertheless, even had Appellant properly preserved her claim below,
we would conclude that her sentencing claim is frivolous. Initially, as
Attorney Webby points out, “an allegation that the sentencing court did not
consider certain mitigating factors does not raise a substantial question.”
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Anders Brief at 4 (quoting Commonwealth v. McNabb, 819 A.2d 54, 57
(Pa. Super. 2003)); see also Commonwealth v. Cruz-Centeno, 668 A.2d
536, 545 (Pa. Super. 1995) (“[A]n allegation that a sentencing court ‘failed
to consider’ or ‘did not adequately consider’ certain factors does not raise a
substantial question that the sentence was inappropriate.”) (citations
omitted).1
Additionally, even if Appellant’s claim did amount to a substantial
question for our review, we would ascertain no abuse of discretion in the
court’s decision to impose the term of incarceration that it did. See
McNabb, 819 A.2d at 55 (“Sentencing 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.”). The trial court had the
benefit of a PSI and, thus, “we can assume the sentencing court ‘was aware
of relevant information regarding [Appellant’s] character and weighed those
considerations along with mitigating statutory factors.’” Commonwealth v.
Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citations omitted). Moreover,
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1
We note that Attorney Webby did not set forth a Rule 2119(f) statement in
his Anders brief. However, the Commonwealth did not file a brief in this
case and, therefore, it has not objected to that omission. See
Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa. Super. 2009)
(declining to find waiver of a discretionary sentencing issue where the
Commonwealth did not object to the appellant’s omission of a Rule 2119(f)
statement). Moreover, this Court has previously held that we may ignore
the omission of a Rule 2119(f) statement in cases where counsel is seeking
leave to withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.
Super. 2009) (citation omitted).
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at the sentencing hearing, defense counsel stressed that Appellant
“cooperated from the start,” and Appellant informed the court that she was
participating in various programs while incarcerated, including drug and
alcohol therapy. N.T. Sentencing, 6/1/16, at 3, 5. Appellant also told the
court that she is handicapped, and the court noted that she was “in a
wheelchair the last time [she was] before the court.” Id. at 5.2
After Appellant’s statements to the court, it offered the following
explanation for the sentence it imposed:
THE COURT: All right. The Court has had an opportunity to
review the [PSI] and what’s been offered here in court today.
Again, [Appellant] does have a number of priors going
back to approximately 1988 or ’89, again which indicate that
she’s been involved in the system before and has had ample
opportunity to reform her ways but has not done so.
Again, also, considering the serious nature of this offense
being a Felony, the Court noting the applicable guideline ranges
in the standard range being 24 to 30 months, the Court, also
considering the age and health of [Appellant], and I do take note
that she is serving a revocation sentence, which arose because
of this incident, I do feel a sentence to a [s]tate correctional
institution for a period of incarceration to allow her to avail
herself of the programs and attempt to reform her ways is
appropriate and, also, appropriate so as to not diminish the
serious nature of this offense[.] [T]he Court, therefore, is going
to sentence [Appellant] on Count 1 within the standard range of
the guidelines to a minimum of 27 months to a maximum of 54
months’ incarceration….
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2
Appellant waived her right to appear in person at the sentencing hearing,
so she was participating via video conference. See N.T. Sentencing at 3, 4.
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Id. at 6-7. The court also directed that Appellant’s sentence run
concurrently with the sentence she was serving at that time.
In light of this record, we would ascertain no abuse of discretion in the
court’s decision to impose a concurrent, standard range sentence. Again,
the court reviewed the PSI and considered the totality of the circumstances
in Appellant’s case, including the mitigating factors she cites on appeal. The
court stated sufficient reasons on the record to support the sentence it
imposed, including Appellant’s lengthy criminal history, the seriousness of
her offense, and her need for further rehabilitation, which she was receiving
through her participation in prison programs. Consequently, we agree with
Attorney Webby that the sentencing issue Appellant seeks to raise on appeal
is frivolous. Additionally, our independent review of the record reveals no
other, non-frivolous claims that Appellant could assert herein. Accordingly,
we grant Attorney Webby’s petition to withdraw and affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2017
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Com. v. Breznay, D.
Combined Opinion