Commonwealth v. Thomas
| Decision Date | 10 June 2021 |
| Docket Number | No. 168 EDA 2021,168 EDA 2021 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Anthony THOMAS, Appellant |
| Court | Pennsylvania Superior Court |
Appellant, Anthony Thomas, appeals nunc pro tunc from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his stipulated bench trial convictions for burglary, attempted burglary, and conspiracy to commit burglary.1 We affirm and grant counsel's petition to withdraw.
The relevant facts and procedural history of this case are as follows. On September 12, 2018, Appellant was arrested and charged with eight counts of burglary, three counts of criminal attempt to commit burglary, seven counts of criminal trespass, seven counts of theft by unlawful taking, ten counts of receiving stolen property, ten counts of criminal mischief, and possessing instruments of crime. Appellant proceeded to a stipulated bench trial on July 31, 2019, and the court convicted him of seven counts of burglary, three counts of attempted burglary, and six counts of criminal conspiracy to commit burglary. Sentencing was deferred pending a pre-sentence investigation report ("PSI").
On December 11, 2019, the court held a sentencing hearing. At the hearing, the sentencing court agreed with Appellant's counsel that Appellant's prior record score was a five and that he should not be sentenced as a Repeat Felon ("RFEL"). The court also agreed with Appellant's counsel that Appellant was eligible for the recidivism risk reduction incentive ("RRRI") program. The court also agreed with counsel's recommendation that Appellant be sent to State Correctional Institution ("SCI") Chester to be evaluated for drug treatment. The court sentenced Appellant to consecutive terms of 12 to 24 months’ imprisonment for the burglary counts; consecutive terms of 12 to 24 months’ imprisonment for attempted burglary; and concurrent terms of 12 to 24 months’ imprisonment for conspiracy. This resulted in an aggregate sentence of 10 to 20 years’ imprisonment.
On December 18, 2019, Appellant timely filed post-sentence motions, which the court denied on June 10, 2020. On September 28, 2020, Appellant filed a pro se petition under the Post-Conviction Relief Act ("PCRA"), and the court reinstated Appellant's direct appeal rights nunc pro tunc on December 18, 2020.
On January 8, 2021, Appellant timely filed a notice of appeal nunc pro tunc .2 On January 11, 2021, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 28, 2021, counsel for Appellant filed a statement pursuant to Pa.R.A.P. 1925(c)(4), indicating counsel's intent to file a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981).
As a preliminary matter, 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 counsel has met the antecedent requirements to withdraw, this Court makes an independent review of the record to confirm that the appeal is wholly frivolous. Commonwealth v. Palm , 903 A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra , our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:
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 has filed a petition to withdraw. The petition states counsel has conducted a conscientious review of the record and determined the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to retain new counsel or to proceed pro se to raise any additional issues Appellant deems worthy of this Court's attention. In the Anders brief, counsel provides a summary of the facts and procedural history of the case. Counsel's argument refers to relevant law that might arguably support Appellant's issues. Counsel further states the reasons for his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the technical requirements of Anders and Santiago . Accordingly, we proceed to an independent evaluation of the issues raised in the Anders brief. See Palm, supra .
Counsel raises the following issues on Appellant's behalf:
For purposes of disposition, we combine Appellant's issues. Appellant argues that the trial court abused its discretion in sentencing him to an aggregate term of 10 to 20 years’ imprisonment for burglaries that occurred where no one was present; no one was hurt; the value of items taken was not large; and the driving force behind the crimes was Appellant's drug addiction. Appellant claims that there was nothing to indicate that his crimes had a profound impact on any of the victims. Additionally, Appellant insists that the court did not adequately consider his drug addiction, which was referenced in his PSI, in counsel's argument, and in Appellant's allocution.
As presented, Appellant's claims challenge the discretionary aspects of his sentence. See Commonwealth v. Austin , 66 A.3d 798, 808 (Pa.Super. 2013), appeal denied , 621 Pa. 692, 77 A.3d 1258 (2013) (); Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) ().
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:
[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 ; (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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied , 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant must invoke this Court's jurisdiction by including in his brief a separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002) ; Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases." Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied , 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc ) (emphasis in original) (internal quotation marks omitted).
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