J-S19034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GINA VANSYCKEL :
:
Appellant : No. 1777 MDA 2016
Appeal from the Judgment of Sentence September 28, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005912-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GINA VANSYCKEL :
:
Appellant : No. 1778 MDA 2016
Appeal from the Judgment of Sentence September 28, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004422-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GINA VANSYCKEL :
:
Appellant : No. 1779 MDA 2016
Appeal from the Judgment of Sentence September 28, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005910-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
J-S19034-17
: PENNSYLVANIA
:
v. :
:
:
GINA VANSYCKEL :
:
Appellant : No. 1780 MDA 2016
Appeal from the Judgment of Sentence September 28, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005911-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E. and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 23, 2017
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Berks County following Appellant’s open guilty plea to
the following charges: docket number CP-06-CR-4422-2015-three counts of
criminal conspiracy (to commit burglary); docket number CP-06-CR-5910-
2015-one count of criminal conspiracy (to commit burglary); CP-06-CR-
5911-2015-one count of burglary; and CP-06-CR-5912-2015-one count of
burglary.1 In addition to this appeal, appellate counsel has filed a petition
seeking to withdraw her representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 602
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1
18 Pa.C.S.A. § 903 (conspiracy) and 18 Pa.C.S.A. § 3502(a)(2) (burglary).
The docket numbers were consolidated in the trial court.
*
Former Justice specially assigned to the Superior Court.
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Pa. 159, 978 A.2d 349 (2009). After a careful review, we affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history are as follows: Following her
arrest, Appellant, who was represented by the public defender’s office,
entered a guilty plea to the above charges on September 28, 2016. At the
guilty plea colloquy, Appellant admitted that she entered unoccupied
residences in Reading, PA, with the intent to commit a crime therein, and on
several different occasions, she conspired with Crystal Roarke, Patrick
McDonough, and Adam Greenawalt to commit burglary of additional
residences in Reading, PA.
After finding Appellant had knowingly and voluntarily tendered her
guilty pleas, the trial court proceeded to sentencing. At the hearing, the
Commonwealth noted Appellant’s prior record score is that of an RFEL. N.T.,
9/28/16, at 10. The Commonwealth further noted:
The offense gravity score for burglary in Docket 5912 of
2015, Count 2, is a 7, making the standard range 35 to 45, plus
or minus 6.
In Docket 4422 of 2015, Count 1, 2, and 3, all conspiracy
to commit burglaries, the offense gravity score is a 6, making
the standard range 24 to 36, plus or minus 3.
In regards to Docket 5910 of 2015, Count 1, conspiracy to
commit burglary, the offense gravity score is again a 6, making
the standard range 24 to 36, plus or minus 3.
In docket 5911 of 2015, Count 2, burglary, the offense
gravity score is a 7, making the standard range 35 to 45, plus or
minus 6.
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Id. at 10-11. The Commonwealth provided the trial court with its sentencing
recommendations, which it characterized as “bottom-of-the standard-range”
sentences. Id. at 12. The Commonwealth further noted the residents of
five homes were “affected by the crimes committed by [Appellant].” Id. at
18.
The trial court indicated that it had reviewed a pre-sentence
investigation report, and defense counsel acknowledged that the
Commonwealth’s recitation of the prior record score and standard range
sentences was correct. Id. at 13. Defense counsel noted that Appellant
was presently employed at Grab-a-Cab, and although Appellant had prior
theft and burglary charges, she had been “crime-free, arrest-free” for the
“last decade.” Id. at 13-14. Defense counsel informed the trial court that
Appellant has “severe health problems,” takes prescription medications, and
“is in the final stages of COPD.” Id. at 14. Defense counsel expressed the
belief that a lengthy prison sentence could limit Appellant’s lifespan due to
her disease and the diminished health care available in prison settings. Id.
Additionally, defense counsel provided the trial court with letters from
Appellant’s stepchild, fiancé, co-workers, and employers, all of whom
expressed Appellant is a pleasant person willing to help others. Id. at 15.
Further, defense counsel noted that Appellant volunteers at the Humane
Society, she adopted a sick animal, and she is not the “mastermind” behind
the crimes at issue. Id. at 15-16.
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As to the nature of the crimes, defense counsel noted the subject
homes were “vacant or for sale,” and it was apparent that the criminal
participants did not wish to encounter or hurt anyone during the crimes. Id.
at 16. In light of the aforementioned, defense counsel sought house arrest
or some type of intermediate punishment for Appellant.
The trial court gave Appellant an opportunity to make a statement,
and she stated: “I’m really not a violent person. I met Crystal and Pat
through my job. And that was the wrong decision. I just really don’t want
to die in prison. I don’t have three years.” Id. at 17. Appellant also noted
that she cooperated with the police. Id. at 18.
At the conclusion of the hearing, the trial court indicated:
All right. I have taken the time to read all of the letters,
and I’ve taken into consideration what your counsel has
represented. I appreciate the fact that you have some health
challenges right now, but the fact of the matter is, you crossed
the threshold of a home, you know, the sanctity of someone
else’s hard work. I find burglary to be one of the most offensive
crimes for that fact, but—and I will tell you, initially my intention
was to even go beyond the Commonwealth’s recommendation.
That’s how strongly I felt about the facts of this case.
Id. at 19.
The trial court then imposed the following sentences: docket number
CP-06-CR-5912-2015, thirty-five months to ninety months in prison for
burglary, to be followed by five years of probation; docket number CP-06-
CR-4422-2015, two years to four years in prison for each count of
conspiracy, the sentences to run concurrently to each other and to the
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sentence for docket number CP-06-CR-5912-2015; docket number CP-06-
CR-5910-2015, two years to four years in prison for conspiracy, the
sentence to run concurrently to the sentence for docket number CP-06-CR-
5912-2015; and docket number CP-06-CR-5911-2015, thirty-five months to
ninety months in prison for burglary, the sentence to run concurrently to the
sentence for docket number CP-06-CR-5912-2015.
The trial court specifically noted that its first inclination was to impose
the sentences consecutively; however “based on the words of [defense]
counsel, and the letters submitted [on Appellant’s behalf], and [Appellant’s]
health,” the trial court “reassessed” its initial inclination, thus imposing the
sentences concurrently. Id. at 23.
Appellant filed a timely, counseled motion seeking the modification of
her sentence,2 which the trial court denied. This timely, counseled appeal
followed. The trial court directed Appellant to file a Pa.R.A.P. 1925(b)
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2
Under Pa.R.Crim.P. 720(A)(1), “a written post-sentence motion shall be
filed no later than 10 days after imposition of sentence.” Here, the tenth
day fell on Saturday, October 8, 2016, and thus, generally in order to be
timely, Appellant would have been required to file her post-sentence motion
on Monday, October 10, 2016. However, in this case, Monday was a legal
holiday, and thus, Appellant timely filed her post-sentence motion on
Tuesday, October 11, 2016. See 1 Pa.C.S.A. § 1908 (“Whenever the last
day of any such period shall fall on Saturday or Sunday, or on any day made
a legal holiday by the laws of this Commonwealth or of the United States,
such day shall be omitted from the computation.”).
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statement, appellate counsel filed a statement of intent to file an Anders
brief in accordance with Pa.R.A.P. 1925(c)(4), and the trial court filed a brief
statement in lieu of an opinion. Thereafter, appellate counsel filed a petition
to withdraw and submitted an Anders/Santiago brief.
When faced with a purported Anders brief, this Court may not review
the merits of the issues raised therein without first passing on the request to
withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005).
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:
(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 must also 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).
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Instantly, counsel provided a summary of the history of the case,
referred to anything in the record that counsel believed arguably supports
the appeal, set forth her conclusion that the appeal is frivolous, and stated in
detail her reasons for so concluding. Moreover, counsel has provided this
Court with a copy of the letter, which counsel sent to Appellant informing her
of her right to retain new counsel, proceed pro se, or raise any points
Appellant deems worthy of this Court’s attention.3 Accordingly, we conclude
counsel has substantially complied with the requirements of Anders and
Santiago. We, therefore, turn to the issue of arguable merit counsel
presented in her Anders brief to make an independent judgment as to
whether the appeal is, in fact, wholly frivolous. Commonwealth v. Bynum-
Hamilton, 135 A.3d 179 (Pa.Super. 2016).
Appellant challenges the discretionary aspects of her sentence.
Specifically, she avers her individual sentences were manifestly excessive
given the fact the trial court focused on the gravity of the offenses and the
impact to the victims without consideration of Appellant’s rehabilitative
needs in accordance with 42 Pa.C.S.A. § 9721(b). She further avers the trial
court did not adequately state its reasons on the record for the imposition of
her sentences as required by Section 9721(b).
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3
Appellant has filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel.
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A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
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) (citations
omitted).
Here, Appellant filed a timely notice of appeal and a timely post-
sentence motion in which she preserved her discretionary aspect of
sentencing claims. Further, counsel included a separate Pa.R.A.P. 2119(f)
statement in her Anders brief. As to whether Appellant has presented a
substantial question, we note the following:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation,
quotation marks, and quotation omitted).
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“This Court has previously found a substantial question to be raised
where an appellant alleged that the sentencing court...failed to consider
relevant sentencing criteria, including the protection of the public, the
gravity of the underlying offense and the rehabilitative needs of appellant[.]”
Commonwealth v. Serrano, 150 A.3d 470, 473 (Pa.Super. 2016) (citation
omitted). “[Further,] [t]he failure to set forth adequate reasons for the
sentence imposed has been held to raise a substantial question.”
Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.Super. 2009) (citation
omitted). Accordingly, we find that Appellant has raised a substantial
question and will proceed to review the merits of her claims.
It is well-settled that:
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. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)
(quotation omitted). In reviewing the sentence, an appellate court shall
have regard for: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the opportunity of the
sentencing court to observe the defendant, including any presentence
investigation; (3) the findings upon which the sentence was based; and (4)
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the guidelines promulgated by the commission. See 42 Pa.C.S.A. §
9781(d)(1)–(4).
A sentence may be found to be unreasonable if it fails to properly
account for these four statutory factors, or if it “was imposed without
express or implicit consideration by the sentencing court of the general
standards applicable to sentencing[.]” Commonwealth v. Walls, 592 Pa.
557, 569, 926 A.2d 957, 964 (2007). These general standards mandate
that a sentencing court impose a sentence “consistent with 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.A. § 9721(b). Moreover, “a trial court is required to
state its reasons for the sentence on the record.” 42 Pa.C.S. § 9721(b).
“This requirement can be satisfied by the trial court indicating, on the
record, that it has been informed by a pre-sentence report.”
Commonwealth v. Coss, 695 A.2d 831, 834 (Pa.Super. 1997) (citation
omitted).
Where the sentencing court imposed standard-range sentences with
the benefit of a pre-sentence investigation report, we will not consider the
sentence excessive. Commonwealth v. Corley, 31 A.3d 293, 298
(Pa.Super. 2011). Under such circumstances, “we can assume the
sentencing court was aware of relevant information regarding the
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defendant’s character and weighed those consideration along with mitigating
statutory factors.” Id. at 298 (quotation marks and quotation omitted).
Here, the trial court was provided with information regarding the
applicable sentencing guidelines, and as appellate counsel notes, Appellant’s
individual sentences, which were imposed concurrently, are in the standard
range of the guidelines. Because the trial court reviewed Appellant’s pre-
sentence investigation report, we assume the sentencing court took into
account the mitigating circumstances presented by Appellant, as well as her
rehabilitative needs. Id. Moreover, the trial court explicitly indicated it
considered the letters presented in support of Appellant, as well as her
health issues; however, in light of the intrusive nature of Appellant’s crimes
and her past history of theft crimes, the trial court concluded the sentence
imposed was necessary. We find no abuse of discretion and conclude
Appellant’s sentencing issues are meritless.
For all of the foregoing reasons, and after an independent review, we
conclude Appellant is not entitled to relief and we grant counsel's petition to
withdraw her representation.
Judgment of Sentence Affirmed. Petition to Withdraw as Counsel
Granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2017
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