Opinion
934 WDA 2023 J-S34001-24
10-16-2024
COMMONWEALTH OF PENNSYLVANIA v. ZAIRE HATCHIN Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered July 13, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006149-2021.
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.[*]
MEMORANDUM
DUBOW, J.
Appellant, Zaire Hatchin, appeals from the judgment of sentence entered by the Allegheny County Court of Common Pleas following his guilty plea to Persons Not to Possess Firearms, Firearms Not to Be Carried Without a License, and Possession with Intent to Deliver. On appeal, he challenges the denial of his post-sentence motion seeking reconsideration of the trial court's allocation of his time credit between his sentence in the present case and his probation violation sentence in a prior case (the "violation case"). Appellant's counsel filed an Anders Brief and a petition to withdraw as counsel. After careful review, we grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.
18 Pa.C.S. § 6105(a)(1) and § 6106(a)(1), and 35 P.S. § 780-113(a)(30), respectively.
Anders v. California, 386 U.S. 738 (1967).
A.
A detailed factual history is unnecessary to our disposition. The relevant procedural history is as follows. On January 27, 2021, police arrested
Appellant and charged him with, inter alia, the above charges. At the time of his arrest, Appellant was serving probation on the violation case, which also involved firearms offenses. Appellant was then incarcerated on both the present case and a probation violation detainer filed in the violation case, earning 2 years, 5 months, and 17 days of time credit.
On July 10, 2023, Appellant entered into a negotiated guilty plea to the above charges, in which the Commonwealth agreed to withdraw several charges and downgrade the Persons Not to Possess Firearms charge to a second-degree felony in exchange for recommending a sentence of 4 to 8 years of incarceration. The plea agreement did not address the allocation of Appellant's time credit between the present case and the violation case.
On July 13, 2023, Appellant proceeded to sentencing on both the present case and the violation case. In the present case, the court sentenced him in accordance with the plea agreement to 4 to 8 years of incarceration.Appellant's counsel also asked the court to apply all of Appellant's time credit to the present case, but the court refused. Instead, after verifying that Appellant was on probation, not parole, at the time of the arrest in the present case, the court sentenced Appellant to 1 to 2 years of incarceration on the violation case, applied 2 years of time credit to the violation case, and closed that case. The court then applied the remaining 5 months and 17 days of time credit to the present case. The court explained that it allocated the time credit this way to impress upon Appellant the seriousness of his conduct-he had promised the court that he would remain out of trouble following his conviction in the violation case, but instead, he was arrested in the present case. N.T. Sentencing Hr'g, 7/13/23, at 13, 31-32.
The court imposed the term of 4 to 8 years' incarceration on the Persons Not to Possess Firearms charge and imposed a determination of guilt without further penalty for the remaining charges.
The court noted that Appellant "is detained on the prior firearms case [the violation case] and he has no bail on this case [the present case], so that means that [Appellant's time credit] can apply to either or both." N.T. Sentencing, 7/13/23, at 19.
Appellant filed a timely post-sentence motion seeking reconsideration of the allocation of his time credit. Specifically, he asked the court to apply only 6 months of time credit to his sentence in the violation case and apply the remaining 23 months (and 17 days) to his sentence in the present case, and he noted that the amount of time he would serve in the violation case would exceed his original sentence in that case. Post-Sentence Motion, 7/18/23, at ¶¶ 5-6. On July 19, 2023, the court denied the motion.
In the post-sentence motion, Appellant did not argue that the court lacked the authority to allocate his time credit between the present case and the violation case; he only requested reconsideration of the amount that the court allocated to each case. Post-Sentence Motion, 7/18/23, at ¶ 6.
B.
Appellant timely appealed. The court appointed appellate counsel, Rachael Santoriella, Esq., who filed a Pa.R.A.P. 1925(c)(4) Statement of Intent to Withdraw. The trial court did not issue a Rule 1925(a) opinion. Attorney Santoriella then filed an Anders brief and a petition to withdraw in this Court. Appellant did not respond.
In her Anders brief, Attorney Santoriella indicated that Appellant wished to raise the following issue on appeal:
Whether the trial court abused its discretion in denying the post[-]sentence motion to reconsider the application of Appellant's time credit.Anders Br. at 5.
C.
"When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010). If counsel meets the requirements for withdrawal, "the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds[,] it may grant counsel's request to withdraw and dismiss the appeal." Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa. Super. 2018) (citation omitted).
When filing an Anders brief, 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." Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Additionally, counsel must provide the appellant with a copy of the Anders brief and petition to withdraw, as well as advise the appellant of "his right to retain new counsel, proceed pro se[,] or raise any additional points that he deems worthy of the court's attention." Commonwealth v. Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005) (citation omitted).
Our review of the record confirms that Attorney Santoriella has satisfied the above requirements. Accordingly, we will review the issue raised in the Anders brief to determine if it has arguable merit. We must conduct "a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Santiago, 978 A.2d at 355 n.5 (citation omitted); see also Yorgey, 188 A.3d at 1197 (noting that Anders requires the reviewing court to "review 'the case' as presented in the entire record with consideration first of issues raised by counsel").
D.
In her Anders brief, Attorney Santoriella indicates that Appellant wishes to claim that the trial court abused its discretion when it denied his post-sentence motion to reallocate his time credit because he "would prefer that [the court] would have awarded all the time credit on the [present case] rather than on his probation violation detainer." Anders Br. at 15. Appellant does not challenge the court's authority to allocate his time credit between the present case and the violation case; rather, he only challenges the amount that the court allocated to each case.
This claim challenges the discretionary aspects of Appellant's sentence. Challenges to the discretionary aspects of sentence "are not appealable as of right." Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a post-sentence motion; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth "a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence[;]" and (4) presenting "a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b)." Leatherby, 116 A.3d at 83.
Appellant timely appealed and preserved his claim in a post-sentence motion. Although counsel did not include a Rule 2119(f) Statement in the Anders brief, we will nevertheless proceed to consider whether Appellant's claim presents a substantial question. See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (declining to find waiver of discretionary aspects of sentencing claim "in light of [c]ounsel's petition to withdraw," even though Anders brief contained deficient Rule 2119(f) statement).
We determine whether a substantial question has been raised on a case-by-case basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). "A substantial question exists 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 [that] underlie the sentencing process." Id. (citation and quotation marks omitted).
Here, Appellant merely requests that the court apply his time credit as he would have preferred-with the majority going toward the present case. Anders Br. at 15; Post-Sentence Motion at ¶ 6. This request does not implicate the fundamental norms underlying the Sentencing Code. Further, we are unaware of a specific provision of the Sentencing Code with which the court's decision was inconsistent. Therefore, this claim does not raise a substantial question for our review. Accordingly, we agree with Attorney Santoriella's determination that a challenge to the trial court's application of Appellant's time credit is wholly frivolous.
Furthermore, after conducting our independent review pursuant to Yorgey, supra, we discern no non-frivolous issues to be raised on appeal. We, therefore, grant Attorney Santoriella's petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.