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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON GARDNER
Appellant No. 1481 EDA 2016
Appeal from the Judgment of Sentence Dated April 8, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006452-2015
BEFORE: OTT, J., SOLANO, J., and JENKINS, J.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 12, 2016
Appellant Aaron Gardner appeals from the judgment of sentence of 2
to 5 years’ incarceration, followed by 5 years’ probation, imposed after he
pled guilty to Criminal Solicitation1 to commit Involuntary Deviate Sexual
Intercourse with a complainant less than 16 years of age.2 With this appeal,
Appellant’s counsel has filed a petition to withdraw and an Anders3 brief,
stating that the appeal is wholly frivolous. After careful review, we affirm
and grant counsel’s petition to withdraw.
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1
18 Pa.C.S. § 902.
2
18 Pa.C.S. § 3123(a)(7).
3
Anders v. California, 386 U.S. 738 (1967).
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On August 12, 2015, Appellant was charged with Involuntary Deviate
Sexual Intercourse (complainant less than 16 years of age) and related
offenses. On March 14, 2016, the Commonwealth moved to amend Count I
of the information to charge Appellant with Criminal Solicitation to commit
Involuntary Deviate Sexual Intercourse. Appellant did not object to the
amendment, and the trial court allowed it. Immediately thereafter,
Appellant entered an open plea of guilty to Count I of the amended
information. The Commonwealth withdrew the remaining charges pursuant
to the plea. Trial Ct. Op., 7/12/16, at 1-2; N.T., 3/14/16, at 8-9.
On April 8, 2016, the trial court held a sentencing hearing, where it
noted Appellant’s criminal history score was zero and his offense gravity
level was eleven. Consequently, the sentencing guidelines recommended a
standard range sentence of 36-54 months’ incarceration. N.T., 4/8/16, at 3-
4. By way of mitigation, Appellant’s counsel discussed Appellant’s mental
health issues, including bipolar disorder, schizophrenia, and depression, and
noted Appellant’s acceptance of responsibility. Id. at 4-8. Appellant’s
counsel requested a sentence that would allow Appellant “to get the
treatment he needs” and stay close to his family. Id. at 9. The
Commonwealth requested a sentence with a minimum period of
incarceration no lower than the bottom of the standard guideline range of 36
months. Id. at 15.
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At the end of the sentencing hearing, the trial court imposed a
sentence of 2 to 5 years’ incarceration, followed by 5 years’ probation. The
court explained its reasoning for imposing this sentence on the record as
follows:
Before this morning[,] I had an opportunity to review the
presentence investigation as well as the diagnostic reports
attached to the presentence investigation, notably the
psychosexual evaluation from Dr. Surbeck as well as the
psychological evaluation of Dr. Germadagez. Such is made part
of the case record. Given my review of these materials, I think
mitigation has been offered to the Court. Mr. Gardner has
suffered from mental health challenges for an appreciable period
of time. I was frankly somewhat surprised by the number of
hospitalizations that he’s had to date particularly given his age.
I think somewhere these mental health challenges play the role
in what brings Mr. Gardner to Court today. To what extent, I’m
not certain. That’s not my area of expertise. I’m also mindful
that this is Mr. Gardner’s first criminal Court contact, but
recognize as I pointed out the guidelines do reflect a prior record
score of zero, yet the sentencing commission has set a standard
range of 36 to 54 months. I also think Mr. Gardner’s in dire
need of offense specific treatment. I think that treatment is
going to be made a bit more of a challenge than perhaps usual
because of the overlay of [] mental health issues that Mr.
Gardner, unfortunately is going to be facing a multitask
situation. He’s going to have to deal with the mental health
issue, stabilize the mental health issues and get those squared
away as reasonably possible, probably before the offense specific
treatment will be effective. While finding mitigation, I don’t find
that I’ve been presented that which would warrant a complete
deviation from the guidelines. I’m also mindful of the difference
between the offense specific treatment programs offered at
Delaware County Prison and the state system, most notably the
length. I think the length of that offered at the state level of the
18 months is more appropriate in these circumstances for the
reasons indicated.
N.T., 4/8/16, at 20-21.
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On April 15, 2016, while still represented by plea counsel, Appellant
filed a pro se petition for reconsideration of sentence. On April 18, 2016,
the trial court dismissed Appellant’s petition because “a defendant’s pro se
lodging when represented of-record by an attorney is a legal nullity which a
court cannot adjudicate.” Order, 4/18/16, at 2 n.3 (citing Commonwealth
v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007), appeal denied, 936
A.2d 40 (Pa. 2007)).
On April 21, 2016, Appellant’s plea counsel filed a petition to withdraw.
At the hearing on that petition, Appellant stated that he did not object to the
relief sought in plea counsel’s petition, and the court granted it. N.T.,
5/4/16, at 4-5.
On May 9, 2016, Appellant, represented by new counsel, filed a timely
notice of appeal.4 On May 11, 2016, the trial court ordered Appellant to file a
Concise Statement of Matters Complained of on Appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). On May 27, 2016,
Appellant’s counsel timely filed the following statement: “In accordance with
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4
Regardless of whether Appellant’s pro se motion for reconsideration of
sentence tolled the time for filing a notice of appeal, the appeal was timely.
At the earliest, Appellant was required to file a notice of appeal within 30
days of the imposition of sentence. See Pa.R.Crim.P. 720. May 8, 2016, the
30th day following the date of sentencing, was a Sunday. When computing a
filing period, “[if] the last day of any such period shall fall on Saturday or
Sunday . . . such day shall be omitted from the computation.” 1 Pa.C.S. §
1908. Therefore, Appellant’s notice of appeal, which was filed on Monday,
May 9, was timely.
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Pennsylvania Rule of Appellate Procedure 1925(c)(4), counsel informs the
Court that he intends to file an Anders brief with the Superior Court.” In its
subsequent opinion, the trial court set forth the procedural history of the
case and then stated, “After reviewing this matter’s salient record and in
light of defense counsel’s stated intent to lodge an Anders brief with the
Superior Court, further exposition by this court regarding Defendant
Gardner’s conviction is unnecessary.” Trial Ct. Op. at 5 (footnote and
citations omitted).
In the Anders brief, counsel raises a single issue for our review:
Whether the prison term of 2 to 5 years is harsh and
excessive under the circumstances?
Anders Brief at 1.
“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). An Anders brief shall comply with the requirements set forth by the
Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d
349 (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,
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and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Id. at 361.
Counsel seeking to withdraw on direct appeal must meet the following
obligations to his or her client:
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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once 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, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,
“this Court must 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)
(footnote and citations omitted).
In this appeal, counsel’s September 8, 2016 letter to Appellant
indicates that counsel provided a copy of the Anders brief to Appellant and
advised Appellant of his right to either retain new counsel or proceed pro se
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on appeal, and to raise any issues he wished to bring to this Court’s
attention.5 Further, counsel’s Anders brief complies with prevailing law in
that counsel has provided a procedural and factual summary of the case with
references to the record. Counsel additionally advances relevant portions of
the record that arguably support Appellant’s claim on appeal. Ultimately,
counsel cites his reasons and conclusion that this appeal is frivolous.
Anders Brief at 4-7.
Appellant challenges the discretionary aspects of his sentence, which
are not appealable as of right. Commonwealth v. Colon, 102 A.3d 1033,
1042 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).6 Before
we exercise jurisdiction to reach the merits of Appellant’s issue, we must
determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant's brief includes a
concise statement of the reasons relied upon for allowance of an
appeal with respect to the discretionary aspects of his sentence;
and (4) whether the concise statement raises a substantial
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5
Appellant did not file an additional pro se or counseled brief with this Court.
6
“Upon entry of a guilty plea, a defendant generally waives all defects and
defenses except those concerning the validity of the plea, the jurisdiction of
the trial court, and the legality of the sentence imposed. However, when the
plea agreement is open, containing no bargain for a specific or stated term
of sentence, the defendant will not be precluded from appealing the
discretionary aspects of his sentence.” Commonwealth v. Guth, 735 A.2d
709, 710 n.3 (Pa. Super.) (citations omitted), appeal denied, 743 A.2d 915
(Pa. 1999).
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question regarding the sentence’s impropriety under the
Sentencing Code.
Id. at 1042-43 (citation omitted). Only if the appeal satisfies each of these
four requirements may we proceed to decide the substantive merits of the
case. Id. at 1043.
In the current case, Appellant filed a timely notice of appeal. He also
filed a post-sentence motion seeking reconsideration of his sentence.
Although he filed that pro se motion while represented by counsel, his
attorney filed a motion to withdraw less than a week later and never filed a
post-sentence motion on Appellant’s behalf. Moreover, by the time of the
hearing on counsel’s motion to withdraw, the period for filing a post-
sentence motion had expired. Under these circumstances, we decline to find
waiver. See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super.
2015) (declining to find waiver where appellant filed pro se post-sentence
motion, counsel did not file one, and court did not appoint new counsel until
after deadline for filing post-sentence motion).
Additionally, counsel’s Anders brief contains a concise statement of
the reasons for which Appellant seeks allowance of an appeal, in compliance
with Rule 2119(f) of the Rules of Appellate Procedure. See Anders Brief at
4-5.7 The statement sets forth the claim that the sentence is “harsh and
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7
Although the statement is labeled “Petition for Allowance of Appeal from
the Discretionary Aspects of the Judgement of Sentence,” without reference
(Footnote Continued Next Page)
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excessive under the circumstances.” Id. at 4. As counsel recognizes, “[a]
bald assertion that a sentence is ‘harsh and excessive’” does not raise a
substantial question. Id. (citing Commonwealth v. Giordano, 121 A.3d
998, 1008 (Pa. Super. 2015), appeal denied, 131 A.3d 490 (Pa. 2016)).8
Appellant’s statement therefore fails to raise a substantial question under
our case law.
Even if Appellant had raised a substantial question, however, we would
find his claim to be meritless. We apply the following standard of review:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must 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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation
omitted), appeal denied, 117 A.3d 297 (Pa. 2015).
This Court has held that “where the sentencing court imposed a
standard-range sentence with the benefit of a pre-sentence report, we will
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(Footnote Continued)
to Rule 2119(f), we conclude that Appellant substantially complied with the
rule. See Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super.
2011) (finding substantial compliance although the statement was not
labeled as a Rule 2119(f) statement).
8
Counsel notes that a claim that a sentence is “so manifestly excessive as to
constitute too severe a punishment” does raise a substantial question.
Counsel concludes, however, “[t]hat is not the case here.” Anders Brief at
5. We agree.
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not consider the sentence excessive.” Commonwealth v. Corley, 31 A.3d
293, 298 (Pa. Super. 2011); see also Commonwealth v. Moury, 992 A.2d
162, 171 (Pa. Super. 2010) (“where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code”). Under such circumstances, “we can assume the
sentencing court ‘was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.’” Corley, 31 A.3d at 298 (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
Here, Appellant’s sentence is in the mitigated range of the Sentencing
Guidelines. Further, in imposing the sentence, the trial court considered a
presentence report. N.T. 4/8/16, at 20. In light of these circumstances, we
conclude that Appellant’s sentence was not excessive. See Corley, 31 A.3d
at 298.
Based on the foregoing, we agree with appellate counsel that the
sentencing issue raised by Appellant lacks 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.
Accordingly, 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: 12/12/2016
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