Com. v. Shaw, W. (memorandum)

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J-S67006-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM T. SHAW, JR., Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 732 MDA 2013 Appeal from the Judgment of Sentence Entered November 21, 2012, In the Court of Common Pleas of Franklin County, Criminal Division, at No. CP-28-CR-0002150-2010. BEFORE: SHOGAN, ALLEN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 31, 2013 Appellant, William T. Shaw, Jr., appeals from the judgment of sentence entered following his convictions of indecent assault of a child, unlawful contact with a minor, and indecent exposure. In addition, counsel has filed a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 The trial court summarized the history of this case as follows: On September 19, 2011, [Appellant] was found guilty by a jury of his peers to one count of unlawful contact with a minor, 18 Pa.C.S.A. § 6318(A)(1), one count of indecent assault of a child, 18 Pa.C.S.A. § 3126(A)(2), and one count of indecent J-S67006-13 exposure, 18 Pa.C.S.A. § 3127(A). The Honorable Shawn D. Meyers sentenced [Appellant] on November 21, 2012. Postsentence motions were filed by [Appellant] on December 3, 2012 and the Commonwealth filed its Answer on December 28, 2012. The [trial c]ourt issued its opinion on March 26, 2013 granting modification of the sentence, in part, to allow [Appellant] to have supervised contact with his two daughters, and denying in claiming that the sentence imposed by [the trial court] was excessive. [Appellant] filed a notice of appeal on April 23, 2013 and the [trial c]ourt ordered him to file a concise statement of matters complained of on appeal, which the [trial c]ourt received on May 10, 2013. Trial Court Opinion, 6/18/13, at 1-2. At the Anders brief, this Court may not review the merits of the underlying issues without Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005). Furthermore, there are clear mandates that counsel seeking to withdraw pursuant to Anders, McClendon, and Santiago must follow: In order for counsel to withdraw from an appeal pursuant to Anders (1) counsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) counsel must file a brief referring to anything that might arguably support the appeal, but which does not amicus curiae brief; and (3) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new -2- J-S67006-13 counsel, proceed pro se or raise any additional points on. Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). In Santiago, the Supreme Court set forth specific requirements for [I]n the Anders brief that accompanies court-appointed etition 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 conclusion that the 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. requirements of Santiago supporting documentation, and Anders brief reveals that counsel has satisfied all of the additional requirements. Counsel has furnished a copy of the brief to Appellant; he has advised Appellant of his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy s attached a copy of the letter sent to Appellant as required under Millisock. Counsel also avers that the appeal is frivolous. Anders Brief at 10. responsibility of the reviewing court to make a full examination of the -3- J-S67006-13 proceedings and make an independent judgment to decide whether the Santiago, 978 A.2d at 355 n.5. Thus, we will now examine the issue presented by counsel in the Anders brief. Counsel sets forth the following issue for our review: Whether the Sentencing Court abused its discretion by not modifying its order of sentence by reducing the period of incarceration from 54 to 204 months in a State Correctional Institution to 54 to 108 months in a State Correctional Institution and/or by not running Counts 2 and 3 concurrently with Count 1 rather than consecutively? Anders Brief at 11. We note that this issue implicates the discretionary aspects of e is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hartle, be considered to be a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010): An appellant challenging the discretionary aspects of four-part test: [W]e 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 -4- his J-S67006-13 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). Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001). As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the iolated the sentencing code. Id. Herein, the first three requirements of the four-part test are met, those being that Appellant brought an appropriate appeal, raised the challenge in his post-sentence motion, and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court. Appellant claims that the sentencing court relied upon improper factors in sentencing Appellant within the aggravated range of the sentencing guidelines for each of the three offenses. -5- Anders Brief at 14. We have J-S67006-13 stated considered improper factors in placing the sentence in the aggravated range, Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005). Accordingly, because Appellant has stated a substantial question, we will consider this issue on appeal.1 Because Appellant has stated a substantial question, we will review his issue with regard to the trial court failing to consider proper factors in imposing aggregate sentences on appeal. Nevertheless, we conclude that Appellant is entitled to no relief on this claim, as the record reveals that the sentencing court did not consider improper factors. It is undisputed 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. 892 A.2d 843, 847 (Pa. Super. 2006). Commonwealth v. Fullin, In this context, an abuse of discretion is not shown merely by an error in judgment. Id. Rather, the 1 In addition, Appellant baldly claims that the sentencing court unreasonably imposed the sentences in a consecutive fashion. Anders Brief at 14. This Court has concluded that a challenge to the consecutive nature of a sentence decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal Commonwealth v. Mastromarino, 2 A.3d improper sentencing in a consecutive manner does not raise a substantial question. -6- J-S67006-13 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. Id Commonwealth v. Griffin n Id. Our review of the record reflects that at the time of sentencing, the trial court listened to detailed testimony regarding Appellant from an expert -12. Notably, the expert discussed the fact that Appellant had been through sex offender treatment on two, unrelated, prior occasions. Id. at 7. Ultimately, the expert opined that Appellant is a sexually violent predator and that - Id. at 9-11. The trial court also heard from the Commonwealth regarding its request for sentencing. Id. at 13-14. In addition, the trial court received testimony incident has had upon the victim. Id. at 14-16. -7- J-S67006-13 The record further reflects that the trial court offered the following explanation for the imposition of the instant sentences of incarceration upon Appellant: For the record, the Court will reiterate that it sat through the trial. It has had the benefit of the report of [the sexual offenders assessment board expert]. It has had the benefit of [a] pre-sentence report. The pre-sentence report sets forth the nature of the offenses. The Court notes the response by [Appellant]. The Court guardian.] Has taken into account the recommendations offered by probation, has taken into account the sentencing memo set forth by the Commonwealth and has also considered the sentencing guideline sheets. Taking all that into consideration, to sentence in accordance with the recommendation of probation aggravated range, on each offense and they are going to be considering the impact that this has had upon the victim in this case. Specifically, that the aggravated sentence is warranted because of the impact upon the victim. It has caused her substantial trauma, causing regression, social limitations and an impact upon her educational accomplishments. Those are my well on the sentencing orders. N.T., 11/21/12, at 22-23. Furthermore, at the conclusion of imposing each sentence in open court, the trial court stated on the record its reasons for giving Appellant a sentence in the aggravated range. Id. at 25, 26-27, 28. In addition, in its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court offered the following discussion pertaining to its decision to -8- J-S67006-13 impose sentences within the aggregate range of the sentencing guidelines upon Appellant: [Appellant] was found guilty of one count of contact with a minor, 18 Pa.C.S.A. § 6318(A)(1), one indecent assault of a child, 18 Pa.C.S.A. § 3126(A)(2), count of indecent exposure, 18 Pa.C.S.A. § 3127(A). At unlawful count of and one the time two previous convictions one for indecent exposure in 1998 and one for statutory sexual assault in 2007. Under the sentencing guidelines, the standard ranges are as follows: 1. Unlawful contact with a minor (F3) (OGS 6): nine to sixteen months; 2. Indecent assault (MI) (OGS 5): three fourteen months, to 3. Indecent exposure (M1) (OGS 4): RS - <12 months. The standard ranges are set forth in the sentencing guidelines but it is well-settled that there may be aggravating circumstances that justify an increased sentence. Pursuant to §303.13(c) of the Sentence Guidelines and 42 Pa.C.S.A. § 9721(b), the Court must state its reasons for an aggravated sentence on the record. At sentencing on November 21, 2012, the Court first heard from Herbert Hays, a member of the Pennsylvania Sexual Offenders Assessment Board, who testified that he conducted an assessment of [Appellant] and, in his professional opinion, within a reasonable degree of professional certainty that [Appellant] meets the criteria to be classified as a sexually violent predator. The Court also heard testimony from emotional state at the current time. The Court also took into consideration the Sentencing memorandum and recommendations from the Franklin County Probation Department. The Court stated on the record that its reasons for imposing the aggregated sentence were: 1) safeguard the community, 2) bring about punishment that is appropriate to the impact on victim consisting of substantial trauma, depression, -9- J-S67006-13 accomplishments. Subsequently, following sentences: the Court imposed the 1 Unlawful contact with a minor (F3) (OGS 6): twenty-two to eighty-four months; 2. Indecent assault (M1) (OGS 5): seventeen to sixty months, 3. Indecent exposure (M1) (OGS 4): fifteen to sixty months. Section 303.13(a) of the Sentencing Guidelines states that ose a sentence that is up to six months longer than the upper limit of 5, the court may impose a sentence that it up to three months §303.13(a)(3)-(4). In this instance, the Court imposed an aggregated sentence as allowed by § 303.13(a) of the discretion to aggregation. do so because the circumstances justified Some semblance of this argument was made in -sentence motion from December 3, 2012. The Court listed at sentencing, and again in its opinion from March sentence. Although the sentence was within the aggravated range, it was still within the sentencing guidelines and the Court stated its reasons for doing so. Trial Court Opinion, 6/18/13, at 2-4. Upon review, we discern no abuse of discretion as the trial court carefully considered the appropriat sentence, which was within the aggravated range of the sentencing guidelines. Accordingly, Appellant is entitled to no relief. -10- J-S67006-13 complied with the requirements of Anders and that an appeal in this case would be wholly frivolous. Furthermore, we have conducted our own, independent review of the record. We do not discern any non-frivolous issues that Appellant could have raised. In light of the foregoing, we grant Petition to withdraw granted. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/31/2013 -11-

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