Com. v. Bonafide, N. (memorandum)

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J-S54015-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. NICHOLAS ANDREW BONAFIDE Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1292 MDA 2019 Appeal from the Judgment of Sentence Entered July 9, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001938-2018 BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY NICHOLS, J.: FILED APRIL 22, 2021 Appellant Nicholas Andrew Bonafide appeals from the judgment of sentence following a guilty plea to indecent assault.1 Appellant’s counsel has filed a petition to withdraw and an Anders/Santiago2 brief. We grant counsel’s request to withdraw and affirm. ____________________________________________ 18 Pa.C.S. § 3126(a)(1). Section 3126(a)(1) is categorized as a Tier I sexual offense under revised Subchapter H, 42 Pa.C.S. § 9799.15(a)(1) of the amended Sex Offender Registration and Notification Act (SORNA II). We acknowledge that although the parties, the trial court, and the record use the term “SORNA,” SORNA II is the applicable statute, and it was enacted before Appellant committed the instant indecent assault. See 2018, Feb. 21, P.L. 27, No. 10 (Act 10); 2018, June 12, P.L. 140, No. 29, (Act 29); see generally Commonwealth v. Moose, ___ A.3d ___, 1897 MDA 2014, 2021 WL 19030 (Pa. Super. filed Jan. 3, 2021) (en banc). 1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). 2 J-S54015-20 We adopt the trial court’s facts and procedural history. See Trial Ct. Op., 8/17/20, at 1-5. Briefly, at docket 1938-2018, on September 10, 2018, Appellant committed an indecent assault. On April 16, 2019, Appellant pled guilty to indecent assault, and executed a written SORNA II colloquy as part of his written guilty plea colloquy. SORNA Suppl. To Guilty Plea Colloquy, 4/16/19, at 1-4. The SORNA II colloquy stated that Appellant was required to register for a period of fifteen years. Id. at 1. At sentencing, Appellant was found not to be a sexually violent predator (SVP). Sentencing Guideline Form, 7/12/19, at 1. At docket 18 MD 596, Appellant pled guilty to two separate counts of indirect criminal contempt, and at docket 19 MD 288, the trial court had earlier found Appellant guilty of a separate count of indirect criminal contempt. Trial Ct. Op. at 2-3.3 On July 9, 2019, the trial court sentenced Appellant at all three docket numbers. Id. at 4-5. Specifically, at docket 1938-2018, the trial court sentenced Appellant to twelve to twenty-four months’ imprisonment for indecent assault. At docket 18 MD 596, the trial court sentenced Appellant to two concurrent sentences of six months’ incarceration, which were made ____________________________________________ All three contempt convictions were due to Appellant’s violation of the protection from abuse orders that the indecent assault victim had obtained against Appellant. Trial Ct. Op. at 4. Specifically, Appellant attempted to contact, and instructed others to contact, the victim via telephone or social media. Id. at 2-4. 3 -2- J-S54015-20 concurrent to Appellant’s indecent assault sentence. At docket 19 MD 288, the trial court sentenced Appellant to six months’ imprisonment, which was made consecutive to Appellant’s indecent assault sentence. Id. at 5. Therefore, Appellant’s aggregate sentence, including the indecent assault sentence, was eighteen to twenty-four months’ imprisonment. Id. Appellant signed a written notice of his post-sentence rights. On July 11, 2019, Appellant, then represented by Joseph P. Kalinowski, Esq., of the Public Defender’s Office, timely filed a counseled motion for reconsideration of sentence, which requested only that his contempt sentence at docket 19 MD 288 be run concurrent to his indecent assault sentence. Mot. for Reconsid. of Sentence, 7/11/19. The trial court denied Appellant’s motion for reconsideration on July 29, 2019. On August 1, 2019, Appellant, who was still represented by Attorney Kalinowski, filed a pro se notice of appeal, which listed only the abovecaptioned docket number of 1938-2018.4 Notice of Appeal, 8/1/19. Appellant’s notice of appeal only stated he wanted to challenge his “sentence for . . . SORNA.” Id. (formatting altered). Appellant’s notice of appeal did ____________________________________________ The notice of appeal, which was timestamped by the trial court, was not transmitted to this Court as part of the certified record, but a copy of the notice was docketed in this Court. See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016) (holding “that this Court is required to docket a pro se notice of appeal despite Appellant being represented by counsel . . . .”). 4 -3- J-S54015-20 not state that Appellant wanted to appeal the contempt sentences at docket numbers 18 MD 596 or 19 MD 288. On August 8, 2019, the trial court appointed Donna DeVita, Esq., also of the Public Defender’s Office, as Appellant’s counsel, and ordered her to comply with Pa.R.A.P. 1925(b).5 Order, 8/8/19. Attorney DeVita’s Rule 1925(b) statement raised issues with respect to Appellant’s sentences at docket numbers 18 MD 596 and 19 MD 288, as well as the indecent assault sentence at the above-captioned docket number. Rule 1925(b) Statement, 8/29/19. Appellant’s initial Rule 1925(b) statement did not raise any challenges to SORNA II. On September 3, 2019, Attorney DeVita filed a supplemental Rule 1925(b) statement, asserting that “the trial court erred when it found that SORNA applied to him and that he must register for a period of 15 years as required under SORNA.” Suppl. 1925(b) Statement, 9/3/19. The trial court filed a responsive Rule 1925(a) opinion, which addressed all the issues raised in Appellant’s initial and supplemental Rule 1925(b) statements. Counsel’s Anders/Santiago brief identifies the following issues, which we reordered to facilitate disposition: 1. Whether the Commonwealth proved that the Appellant was guilty of indirect criminal contempt in [docket number] 19 MD 288. ____________________________________________ The record does not reflect that Attorney Kalinowski requested or was otherwise granted permission to withdraw. 5 -4- J-S54015-20 2. Whether the sentences imposed on the indirect criminal contempt charges were unreasonably harsh and excessive given the de [minimis] nature of the violations. 3. Whether the sentence imposed on the indecent assault charge was unreasonably harsh and excessive. 4. Whether the trial court erred when it found that SORNA applied to him and that he must register for a period of 15 years as required under SORNA. Anders/Santiago Brief at 4. Initially, “[w]hen faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted). Appellant’s counsel must comply with the following: (1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) file a brief referring to anything that arguably might support the appeal but which does not resemble a “no-merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the court’s attention. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (citation omitted) (en banc). Additionally, Appellant’s counsel must file a brief that meets the requirements established by Santiago Court: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that -5- J-S54015-20 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. Only after determining that counsel has satisfied these technical requirements, may this Court conduct an independent review of the record to discern if counsel overlooked any potentially non-frivolous issues. See Goodwin, 928 A.2d at 292. Here, Appellant’s counsel has complied with the procedures for seeking withdrawal by filing a petition to withdraw, sending Appellant a letter explaining his appellate rights, and supplying Appellant with a copy of the Anders/Santiago brief. See id. at 290. Moreover, counsel’s Anders/Santiago brief complies with the requirements of Santiago. See Santiago, 978 A.2d at 361. The brief includes a summary of the relevant factual and procedural history, refers to the portions of the record that could arguably support Appellant’s claims, and sets forth the conclusion that the appeal is frivolous. Accordingly, we conclude that counsel has met the technical requirements of Anders and Santiago, and we will proceed to address the issues raised in counsel’s Anders/Santiago brief. We summarize counsel’s discussion of the first two issues. First, counsel discusses the issue that the Commonwealth failed to prove Appellant was guilty of indirect criminal contempt at docket number 19 MD 288. Anders/Santiago Brief at 13. Second, counsel addresses the issue that -6- J-S54015-20 Appellant’s sentences for indirect criminal contempt at docket numbers 18 MD 596 and 19 MD 288 were excessive. Id. Counsel contends that Appellant waived the issues by failing to file notices of appeal for those dockets. Id. Counsel did not otherwise develop substantive arguments. Pennsylvania Rule of Appellate Procedure 341 provides that “[w]here, however, one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed.” Pa.R.A.P. 341 note. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court noted that under Rule 341, a single notice of appeal in a criminal case that seeks appellate review of orders or judgments arising on more than one docket is not permitted. Id. at 976; accord West’s Pa. Appellate Practice § 341:3.1.02; cf. Commonwealth v. Nichols, 208 A.3d 1087, 1089 (Pa. Super. 2019) (quashing an appeal because the appellant failed to file separate notices of appeal for each docket number at issue). Here, pro se Appellant filed a single notice of appeal listing only the docket number for his indecent assault conviction and challenging only the SORNA II registration requirement for that conviction. Notice of Appeal, 8/1/19. Appellant, either pro se or through counsel, did not file notices of appeal from his judgments of sentence at docket numbers 18 MD 596 and 19 MD 288. Because Appellant failed to comply with Rule 341, we lack appellate jurisdiction to resolve appeals at those docket numbers. See Pa.R.A.P. 341; Walker, 185 A.3d at 976; cf. Nichols, 208 at 1089. Therefore, we agree -7- J-S54015-20 with counsel that this Court lacks appellate jurisdiction to review those issues.6 See Pa.R.A.P. 341. Counsel’s third issue is that Appellant’s indecent assault sentence was unreasonably harsh and excessive. Anders/Santiago Brief at 13-15. Initially, we note that an allegation that a sentence is excessive is a challenge to the discretionary aspects of sentencing. See Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008). Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging ____________________________________________ We acknowledge the apparent confusion following sentencing, as well as the appointment of new counsel for the purpose of appeal. Further, it appears that the trial court issued a single order denying Appellant’s post-sentence motion listing all three docket numbers but the order indicated that Appellant could file “an appeal.” If Appellant had filed a single notice of appeal listing all three docket numbers, then this would have constituted a breakdown as discussed in Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019). Unfortunately, Appellant, who was acting pro se at the time, listed only a single docket number on his notice of appeal. The change in counsel also may have caused additional confusion, and although counsel had time to file separate notices of appeal in each case, she did not do so. Instead, Attorney DeVita filed Rule 1925(b) statements raising issues at all three docket numbers. 6 Considering these circumstances, we add that Appellant’s intended sentencing claims concerning 18 MD 596 and 19 MD 288 were frivolous. See Anders/Santiago Brief at 6-7. Specifically, Appellant failed to file a postsentence motion at 18 MD 596, which precludes him from seeking review of the discretionary aspects of that sentence. See Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016). In 19 MD 288, Appellant’s intended claim that the imposition of a six-month sentence of incarceration consecutive to the one-to-two year sentence for indecent assault was excessive fails to raise a substantial question warranting review. See Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). Therefore, even if Appellant had properly appealed from the sentences in 18 MD 596 and 19 MD 288, and preserved his issues for appeal, there is no basis in the record or law for relief. -8- J-S54015-20 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; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. Tukhi, 149 A.3d at 888 (citations omitted and formatting altered). Here, Appellant did not file a post-sentence motion at the appropriate docket or otherwise raise a challenge to his sentence for indecent assault in the counseled motion filed in 19 MD 288. Therefore, this claim is waived. See id. Counsel’s final issue is that the trial court erred when it held that Appellant must register for fifteen years under SORNA II. Anders/Santiago Brief at 15. Counsel contends that Appellant waived the issue by not previously raising it before the trial court. Id. at 16. In Commonwealth v. Reslink, ___ A.3d ___, 2020 PA Super 289, 2020 WL 7415959 (Pa. Super. filed Mar. 2, 2021), the defendant was found not to be an SVP but was subject to lifetime registration as a Tier III offender. Reslink, 2020 WL 7415959 at *1. For the first time on appeal, the defendant raised a claim that revised Subchapter H of SORNA II was unconstitutional for several reasons. Id. at *3. In holding that the defendant waived the claim, the Reslink Court reasoned as follows: -9- J-S54015-20 It is well-settled that issues not raised before the trial court cannot be advanced for the first time on appeal. Pa.R.A.P. 302(a). See In re F.C. III, 607 Pa. 45, 2 A.3d 1201, 1212 (2010) (finding appellant’s constitutional claims waived where he failed to raise them before the lower court, depriving that tribunal of opportunity to consider and rule upon them); Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (“Constitutional issues, including sentencing issues based upon the constitution, are waived if they are not properly raised in the trial court.”). . . . Here, [the defendant] did not raise these claims before the trial court, in a motion to bar application of SORNA, or in post-sentence motions. Rather, [the defendant] raises these claims for the first time on appeal. We, therefore, are constrained to find that [the defendant] has waived these claims. Pa.R.A.P. 302(a). No relief is due. Id. at *4 (some citations omitted). Instantly, we reiterate that it was in counsel’s supplemental Rule 1925(b) statement that counsel first raised a claim that “the trial court erred when it found that SORNA [II] applied to him and that he must register for a period of 15 years as required under SORNA [II].” Suppl. 1925(b) Statement. Identical to the defendant in Reslink, Appellant did not raise his SORNA II claim before the trial court and now raises it for the first time on appeal. See Reslink, 2020 WL 7415959, at *4. We, therefore, agree with the trial court’s determination of waiver, and “are constrained to find that [Appellant] has waived” this claim under Rule 302(a). Id.; Trial Ct. Op. at 13-14. In sum, based on our review of the record, we agree with trial counsel’s assessment that the issues discussed in the Anders/Santiago brief are frivolous. Moreover, our independent review of the record does not reveal any additional, non-frivolous issues preserved in this appeal. See Goodwin, - 10 - J-S54015-20 928 A.2d at 292. Accordingly, we grant counsel’s petition to withdraw and affirm the judgment of sentence. Judgment of sentence affirmed. Petition to withdraw granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 04/22/2021 - 11 - Circulated 03/31/2021 12:16 PM

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