J-S92018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MITCHELL CRAIG LITZ
Appellant No. 516 WDA 2016
Appeal from the Judgment of Sentence March 1, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001495-2015
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED APRIL 18, 2017
Mitchell Craig Litz appeals from the March 1, 2016 judgment of
sentence entered in the Erie County Court of Common Pleas following his
guilty plea to aggravated assault by vehicle while driving under the influence
(“Count One”), accidents involving death or personal injury (“Count Three”),
driving under the influence – highest rate of alcohol (“Count Six”), and
driving while operating privilege is suspended or revoked (“Count Nine”).1
Litz’s appellate counsel has filed an Anders2 brief and a petition to
withdraw. We affirm and grant counsel’s petition to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S. §§ 3735.1(a), 3742(a), 3802(c), 1543(a), respectively.
2
Anders v. California 386 U.S. 738 (1967).
J-S92018-16
On July 18, 2014, Litz caused a motor vehicle collision while driving
under the influence of alcohol. N.T., 3/1/16, at 20. After the collision, Litz
fled the scene, leaving an injured, 12-year-old family friend in the back seat
of the car. Id. at 20-21. Before taking off into the woods, Litz took a 12-
pack of beer and some loose beer cans that he had in his car. Id. Litz
repeatedly called the police barracks and informed the police he was at a
certain location, but when the police arrived he was not there. Id. at 21-22.
Two and one-half hours after the incident, he walked out of the woods and
was arrested. Id. at 22. The police brought Litz to the hospital where two
blood draws were performed: The first indicated a .299 blood alcohol
content (“BAC”) and the second indicated a .27 BAC. Id.
On January 6, 2016, Litz entered a guilty plea to the aforementioned
counts. On March 1, 2016, the trial court sentenced Litz to an aggregate
term of 102 to 204 months’ incarceration.3 He filed a motion to
reconsider/modify sentence on March 8, 2016, which the trial court denied
on March 11, 2016. On April 7, 2016, Litz filed his notice of appeal to the
Superior Court.
Because counsel has filed a petition to withdraw pursuant to Anders
____________________________________________
3
The trial court sentenced Litz to 60 to 120 months’ incarceration at
Count One and a consecutive term of 42 to 84 months’ incarceration at
Count Three. Count Six merged with Count One for sentencing purposes.
-2-
J-S92018-16
and its Pennsylvania counterpart, Santiago,4 we must address counsel’s
petition before reviewing the merits of Litz’s underlying issues.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established by the
Pennsylvania 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel
must also provide a copy of the Anders brief to the appellant, together with
a letter that advises 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.
Orellana, 86 A.3d 877, 880 (Pa.Super. 2014) (quoting Commonwealth v.
Nischan, 928 A.2d 349, 353 (Pa.Super. 2007)). Substantial compliance
____________________________________________
4
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
-3-
J-S92018-16
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007).
Counsel’s petition states that she conducted a thorough review of the
record and determined that any appeal would be frivolous. In the Anders
brief, counsel provides a summary of the facts and procedural history of the
case, refers to evidence of record that might arguably support the issues
raised on appeal, states her conclusion that the appeal is frivolous, and cites
relevant case law to support her conclusion that the appeal is frivolous.
Additionally, counsel provided Litz with a copy of the Anders brief and
petition to withdraw, together with a letter advising Litz of counsel’s intent to
withdraw and of Litz’s right to retain new counsel or proceed pro se to raise
any additional points. Accordingly, counsel has substantially complied with
the requirements of Anders and Santiago.
Litz has not filed a pro se brief or a counseled brief with new,
privately-retained counsel. We, therefore, review the issues raised in the
Anders brief.
Counsel raises the following issue: “Whether [Litz]’s sentence is
manifestly excessive, clearly unreasonable and inconsistent with the
objectives of the Sentencing Code.” Anders Br. at 3.
When challenging the discretionary aspects of sentencing, an appellant
is “not entitle[d] . . . to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super. 2011). We must first determine:
-4-
J-S92018-16
(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 appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));
see also Allen, 24 A.3d at 1064.
Litz’s appeal is timely, and the Anders brief contains a concise
statement of the reasons relied upon for allowance of appeal. Furthermore,
Litz’s claim that the trial court failed to consider the factors set forth in 42
Pa.C.S. § 9721(b)5 in imposing a sentence above the aggravated range
raises a substantial question. See Commonwealth v. Dodge, 77 A.3d
1263, 1272 n.8 (Pa.Super. 2013) (“arguments that the sentencing court
failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a
substantial question”). However, we agree with the trial court that while Litz
properly preserved his claim as to Count Three, he failed to preserve his
____________________________________________
5
Section 9721(b) of the Sentencing Code provides in relevant part:
[T]he court shall follow the general principle that the
sentence imposed should call for confinement that is
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. § 9721(b).
-5-
J-S92018-16
claim with regard to Count One.6 See 1925(a) Opinion, 6/22/16, at 3
(“1925(a) Op.”).7 Thus, we will consider the merits as to Count Three only.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). “An
abuse of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
____________________________________________
6
The sentence imposed at Count One was in the standard range.
7
In Litz’s motion, he asserted:
4. Counsel is only requesting that the Court reconsider
modifying Count 3 to a term of incarceration [in] the
standard range of the guidelines as opposed to beyond the
aggravated range.
5. [Trial] counsel respects the Court’s wisdom in fashioning
the sentence and the reasons for it, however, it appears to
be unduly harsh at Count 3.
6. [Trial] counsel believes that a standard range sentence,
perhaps in the high end, would still achieve the
punishment that this Honorable Court was seeking and
[Litz] deserves.
7. [Trial] counsel believes that the sentencing guidelines
already take into account [Litz]’s prior record and current
offense, therefore he should be sentenced within the
standard range. However, if the Court will not reconsider
sentencing [Litz] in the standard range, we would
respectfully request an aggravated range instead of one
beyond the aggravated range.
Mot. to Modify Sent., 3/8/16, ¶¶ 4-7.
-6-
J-S92018-16
support so as to be clearly erroneous.” Id. “A sentencing court need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Id. at 1283.
Litz argues that the trial court failed to consider his rehabilitative
potential in that he has the ability to be a productive member of society, he
showed remorse for his actions, and he admitted fault. We disagree.
The trial court considered
the pre-sentence investigative report,[8] the Pennsylvania
Sentencing Code and all its factors, the Pennsylvania
Sentencing Guidelines, statements by the parties, and
submissions from the defense and the Commonwealth.
N.T. Sentencing, 03/01/16, at 14-28. Th[e trial court] also
heard testimony from the victim, David Peters, who
testified to his extensive injuries, ongoing medical
treatment, the loss of his employment due to his injuries.
Id., at 7-12.
1925(a) Op. at 4. Among the submissions from the defense were letters
explaining “what [Litz] went through and the childhood and the horrific
childhood that he endured.” N.T., 1/1/16, at 14.
____________________________________________
8
“Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).
-7-
J-S92018-16
Additionally, the trial court stated its reasons for deviating from the
sentencing guidelines on the record. In fashioning Litz’s sentence, the trial
court stated:
But looking at this case in its entirety and all [of Litz]’s
conduct that day, on his decades of drinking and driving
and killing someone in the past and almost killing someone
in the present, the appropriate sentence is above the
aggravated ranges of the guidelines. And I’m going to
impose a sentence of three and a half to seven years on
this count. And it’s my intention this count be consecutive
to Count 1.
So I’m going beyond the standard range and beyond
the aggravated range. This has been decades and decades
of [Litz] drinking and driving. I don’t find him to be an evil
person, but his inability to control his conduct has logically
led to the death of two people[9] and would lead to the
deaths of more, perhaps, if he were permitted.
In imposing this sentence, it’s not my intention to
rehabilitate [Litz], that’s beyond the state’s power. It is
simply my intention to punish and incapacitate him for as
long a period as the law allows. If rehabilitation can occur,
that would be nice, but my primary goal is simply to
incapacitate someone who has proven himself to be a
danger to all of us.
...
My recommendation to the state is that [Litz] receive a
mental health evaluation and alcohol counselling, but
that’s a matter for state authorities.
N.T., 3/1/16, at 31-33; 1925(a) Op. at 4.
____________________________________________
9
It appears that the trial court may have misspoken, as the record
shows that Litz had one prior involuntary manslaughter conviction, not two.
See N.T., 3/1/16, at 26-27 (“The Court: . . . this is the second time
someone has basically been hurt by [Litz]. In October of ’79, it shows . . .
involuntary manslaughter, which looks to me like someone died in a vehicle
in which [Litz] was operating. . . . Litz: Yes.”).
-8-
J-S92018-16
While we are mindful that a trial court should consider all section 9721
factors in fashioning its sentence, it is also clear that some factors may
weigh more heavily than others. That the trial court may have placed more
weight on the need for protection of the public and the gravity of the offense
is not violative of section 9721(b), which simply requires the court to
consider all the factors set forth therein. The trial court found that the need
for protection of the public and the gravity of the offense outweighed Litz’s
rehabilitative needs. We conclude that the trial court properly considered
the section 9721(b) factors and the mitigating factors in sentencing Litz
outside the guidelines and, therefore, did not abuse its discretion.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
-9-
Com. v. Litz, M.
Combined Opinion