Commonwealth v. Dubbs, J-S10035-15
| Decision Date | 04 March 2015 |
| Docket Number | J-S10035-15,No. 1874 EDA 2014,No. 1873 EDA 2014,No. 1872 EDA 2014,No. 1871 EDA 2014,1871 EDA 2014,1872 EDA 2014,1873 EDA 2014,1874 EDA 2014 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH OF PENNSYLVANIA Appellee v. ARTHUR J. DUBBS IV Appellant |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appellant, Arthur J. Dubbs IV, appeals nunc pro tunc from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his open guilty pleas to multiple counts of criminal conspiracy, burglary, criminal trespass, theft by unlawful taking or disposition, and related offenses.1 We affirm and grant counsel's petition to withdraw.
The relevant facts and procedural history of this appeal are as follows. In November and December of 2010, Appellant and his cohorts committed astring of burglaries throughout Bucks County. The Commonwealth charged Appellant with multiple counts of burglary and related offenses at four (4) different docket numbers. On August 10, 2012, the court conducted a guilty plea hearing. At No. 5591 of 2011, Appellant pled guilty to three (3) counts of conspiracy and one (1) count each of burglary, criminal trespass, and theft by unlawful taking or disposition. At No. 5912 of 2011, Appellant pled guilty to two (2) counts each of burglary, theft by unlawful taking or disposition, criminal trespass, and receiving stolen property and one (1) count of criminal mischief.
The court conducted a second guilty plea hearing on August 14, 2012. At No. 5267 of 2012, Appellant pled guilty to one (1) count each of burglary, criminal mischief, and criminal attempt. At No. 5268 of 2012, Appellant pled guilty to two (2) counts each of burglary, theft by unlawful taking or disposition, and criminal mischief and one (1) count of conspiracy. In exchange for Appellant's pleas, the Commonwealth agreed to withdraw additional charges. The Commonwealth also recommended that Appellant's sentences run concurrently with a related federal sentence he was already serving. The court accepted the guilty pleas, and Appellant immediately proceeded to sentencing.
At No. 5591 of 2011, the court sentenced Appellant to concurrent terms of six (6) to twelve (12) years' imprisonment, followed by two (2) years' probation, for one count each of burglary and conspiracy. The courtimposed no further penalty for Appellant's remaining convictions. At No. 5912 of 2011, the court sentenced Appellant to concurrent terms of five (5) to ten (10) years' imprisonment for two counts of burglary. The court imposed no further penalty for Appellant's remaining convictions. At No. 5267 of 2012, the court sentenced Appellant to four and one-half (4½) to nine (9) years' imprisonment for one count of burglary. The court imposed no further penalty for Appellant's remaining convictions. At No. 5268 of 2012, the court sentenced Appellant to concurrent terms of four and one-half (4½) to nine (9) years' imprisonment, followed by two (2) years' probation, for two counts of burglary and one count of conspiracy. The court imposed no further penalty for Appellant's remaining convictions. Significantly, the court ordered the sentences at all docket numbers to run concurrently with each other. The court also ordered the sentences to run concurrently with Appellant's federal sentence. Thus, the court imposed an aggregate sentence of six (6) to twelve (12) years' imprisonment, followed by two (2) years' probation. 2
Appellant timely filed a motion for reconsideration of sentence on August 20, 2012. In it, Appellant complained that the state sentences would hinder his ability to enter into certain programs at the federal prison.Further, Appellant argued that mitigating circumstances warranted reconsideration of the sentences. The court conducted a hearing on the post-sentence motion on October 11, 2012. On November 20, 2012, the court filed an amended sentencing order "to reflect that the sentences be served concurrent with and not consecutive to the FEDERAL sentence [Appellant] is already serving." (Order, entered 11/20/12, at 1). The court also ordered that Appellant serve his state sentences at a federal facility. The court denied Appellant's post-sentence motion in all other respects. Appellant did not file a direct appeal.
On August 9, 2013, Appellant timely filed a pro se petition pursuant to the Post Conviction Relief Act ("PCRA").3 The court appointed counsel, who filed an amended petition on April 4, 2014. In the amended petition, Appellant argued plea counsel was ineffective for failing to file a notice of appeal. On June 5, 2014, the court granted PCRA relief and reinstated Appellant's direct appeal rights nunc pro tunc.
Appellant timely filed notices of appeal nunc pro tunc at each docket number on June 6, 2014. On July 15, 2014, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On July 21, 2014, appellate counsel filed a Rule 1925(c)(4) statement of intent to file a brief pursuant to Anders v.California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant subsequently filed an application to consolidate the appeals, which this Court granted on August 4, 2014.
As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdrawrepresentation:
Neither Anders nor McClendon4 requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
* * *
Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed counsel's petition 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 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw. The petition states counsel performed a thorough review of the record and concluded the appeal would be wholly frivolous. Counsel also supplied Appellant with a copy of the withdrawal petition, the brief, and a letter explaining Appellant's right to proceed pro se or with new privately retainedcounsel to raise any additional points Appellant deems worthy of this Court's attention. In his Anders brief, counsel provides a summary of the procedural history of the case. Counsel refers to facts in the record that might arguably support the issues raised on appeal and offers citations to relevant law. The brief also provides counsel's conclusion that the appeal is wholly frivolous. Thus, counsel has substantially complied with the requirements of Anders and Santiago.
As Appellant has filed neither a pro se brief nor a counseled brief with new privately retained counsel, we review this appeal on the basis of the issues raised in the Anders brief:
SHOULD APPELLANT'S COUNSEL BE PERMITTED TO WITHDRAW HIS APPEARANCE BECAUSE THE APPEAL IS WHOLLY FRIVOLOUS?
On appeal, Appellant contends each of his sentences for the burglary and conspiracy convictions exceeds the aggravated range of the sentencing guidelines. Appellant argues the court imposed unduly harsh sentences, because it did not adequately consider Appellant's evidence of mitigating circumstances. Appellant insists his sentences are unreasonable. Appellant concludes the court abused its discretion by imposing manifestly excessive sentences. Appellant challenges the discretionary aspects...
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