Opinion
J-S12033-17 No. 1460 MDA 2016 No. 1461 MDA 2016 No. 1462 MDA 2016
03-21-2017
COMMONWEALTH OF PENNSYLVANIA v. JAY TYLER BARD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 10, 2016 in the Court of Common Pleas of Franklin County, Criminal Division, No(s): CP-28-CR-0000206-2014, CP-28-CR-0001558-2012, CP-28-CR-0001856-2013 BEFORE: PANELLA, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Jay Tyler Bard ("Bard") appeals from the judgments of sentence entered following the revocation of probation for his separate convictions of forgery, retail theft and possession of a controlled substance. Counsel for Bard has filed a Petition to Withdraw from representation, and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We grant counsel's Petition to Withdraw and affirm Bard's judgments of sentence.
Bard filed separate appeals of the sentences imposed upon the revocation of each sentence of probation. This Court consolidated the appeals for review.
In its Opinion, the trial court concisely summarized the history underlying the instant appeal. See Trial Court Opinion, 10/2/16, at 1-2 (unnumbered). We adopt the trial court's recitation for the purpose of this appeal. See id.
Before addressing Bard's claims, this Court "must first pass upon counsel's petition to withdraw[.]" Commonwealth v. Orellana , 86 A.3d 877, 880 (Pa. Super. 2014).
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.
Orellana , 86 A.3d at 879-80 (some citations 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. Wimbush , 951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted).
Santiago , 978 A.2d at 361. 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."
Here, counsel's Petition to Withdraw states that he has reviewed the record and concluded that the appeal is frivolous. Additionally, counsel notified Bard that he was seeking permission to withdraw, furnished Bard with copies of the Petition and Anders Brief, and advised Bard of his right to retain new counsel or proceed pro se to raise any points he believes worthy of this Court's attention. Accordingly, counsel has satisfied the procedural requirements of Anders. In addition, counsel's Anders Brief meets the substantive dictates of Santiago. Accordingly, we will proceed with our independent review of the trial court's proceedings to determine whether Bard's appeal is wholly frivolous.
In the Anders Brief, Bard presents the following claims for our review:
1. Did the trial court abuse its discretion when it sentenced [Bard] to a sentence of 9 months to 60 months in a State Correctional Institution [for his conviction of forgery at No.] 1558-2012?Anders Brief at 9.
2. Did the trial court abuse its discretion when it sentenced [Bard] to a sentence of 6 months to 36 months in a State Correctional Institution [for his conviction of retail theft at No.] 1856-2013?
3. Did the trial court abuse its discretion when it sentenced [Bard] to a sentence of 3 months to 12 months in a State Correctional Institution [for his conviction of simple possession at No.] 206-2014?
Bard's claims challenge the discretionary aspects of his sentences, from which there is no right of appeal. See 42 Pa.C.S.A. § 9781(b). Instead, Bard must petition this Court for permission to appeal the discretionary aspects of his sentences. Id.
As this Court has explained,
To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, 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[.]Commonwealth v. Cook , 941 A.2d 7, 11 (Pa. Super. 2007) (footnote added).
"[W]hen a court revokes probation and imposes a new sentence, a criminal defendant needs to preserve challenges to the discretionary aspects of that sentence either by objecting during the revocation sentencing or by filing a post-sentence motion." Commonwealth v. Kalichak , 943 A.2d 285, 289 (Pa. Super. 2008). --------
Here, Bard timely filed a Notice of Appeal, and properly preserved his claims in a post-sentence motion. The Anders Brief also contains a Pa.R.A.P. 2119(f) Statement of Reasons relied upon for allowance of appeal. Consequently, we next address whether the appeal presents a substantial question.
The determination of what constitutes a substantial question is evaluated on a case-by-case basis. See Commonwealth v. Paul , 925 A.2d 825, 828 (Pa. Super. 2009). "A substantial question exits 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. Clarke , 70 A.3d 1281, 1286-87 (Pa. Super. 2013) (internal citations and quotation marks omitted).
In his Rule 2119(f) Statement, Bard's counsel states that,
[d]ue to the fact that [Bard] received a legal sentence following a re-sentencing hearing, it is undersigned counsel's position that Bard is unable to put forth a colorable argument that his sentences were inconsistent with a specific provision of the Sentencing Code, or contrary to the fundamental norms which underlie the sentencing process, ... so as to justify permission to appeal in the Superior Court.Anders Brief at 13. Notwithstanding the inadequacy of the Rule 2119(f) Statement, we conduct our own independent review of the trial court's proceedings to determine whether there exist any non-frivolous issues that could be raised in this appeal. See Wimbush , 951 A.2d at 382.
In his Post-Sentence Motion, Bard sought a modification of his sentence, requesting
the opportunity to serve a term of imprisonment locally in the Franklin County Jail. He makes this request based on his desire to maintain his local employment through the Work Release Program[,] and to be nearer to his family, including his son, who are his support system. Additionally, he notes that the basis for his violation of supervision is receiving new charges[,] and those charges are merely pending at this point, as well as being behind on payments, which is due to his current incarceration.Post-Sentence Motion, 8/18/16, at 2. From Bard's Post-Sentence Motion, it appears that he challenged the fact that his sentences were to be served in a state correctional facility, rather than the county jail.
In his Motion and on appeal, Bard failed to refer to any particular provision of the Sentencing Code that requires a sentence following multiple violations of probation to be served in a county jail rather than a state correctional facility. Accordingly, we could conclude that Bard has failed to raise a substantial question. Cf. Commonwealth v. Hartle , 894 A.2d 800, 806 (Pa. Super. 2006) (holding that claim that sentencing court abused its discretion by sentencing defendant to serve his sentence in a state correctional facility, rather than county jail, raised a substantial question where the defendant was able to point to a violation of particular provision of sentencing guidelines). However, as Bard's present counsel filed the Post-Sentence Motion and, on appeal, a Petition to Withdraw, we will address Bard's substantive claim in an abundance of caution.
"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." Clarke , 70 A.3d at 1287 (citation omitted). On appeal from resentencing following the revocation of probation, our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. 42 Pa.C.S.A. § 9771(b). Once probation has been revoked, a sentence of total confinement may be imposed if "the defendant has been convicted of another crime; or the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or, such a sentence is essential to vindicate the authority of court." Commonwealth v. Coolbaugh , 770 A.2d 788, 792 (Pa. Super. 2001) (quoting 42 Pa.C.S.A. § 9771(c)).
In its Opinion, the trial court addressed Bard's challenge to the sentences imposed, and concluded that the challenge lacks merit. See Trial Court Opinion, 10/2/16, at 2-4 (unnumbered). We agree with the sound reasoning of the trial court, as set forth in its Opinion, and affirm on this basis. See id.
Finally, our independent review discloses no other non-frivolous claims that Bard could raise on appeal. Accordingly, we grant counsel's Petition to Withdraw, and affirm Bard's judgments of sentence.
Petition to Withdraw granted. Judgments of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/21/2017
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