NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA GARY W. WILLIAMS, v. Appellant No MDA 2012 Appeal from the Judgment of Sentence of April 4, 2012, in the Court of Common Pleas of Lebanon County, Criminal Division at Nos. CP-38-CR CP-38-CR BEFORE: PANELLA, ALLEN and COLVILLE *, JJ. MEMORANDUM BY COLVILLE, J.: FILED JUNE 11, 2013 This case is a direct appeal from judgment of sentence. Appellant s counsel has filed a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Appellant s intended issue is that the sentencing court abused its discretion by using a prior record score ( PRS ) of repeat felony offender ( RFEL ) rather than a PRS of five when applying Appellant s sentencing guidelines. We affirm the judgment of sentence and grant counsel s request to withdraw. * Retired Senior Judge assigned to the Superior Court.

2 Appellant pled guilty to various offenses. During the sentencing hearing, but before sentence was imposed, Appellant s counsel indicated to the court that Appellant had believed, at the time of his pleas, that his PRS was five based on the criminal history information he had received from the Commonwealth. Counsel claimed, more particularly, that the criminal history information from the Commonwealth had omitted multiple prior robbery convictions. Appellant s counsel then explained to the court that, subsequent to the plea proceedings, a presentence report, which included the robberies, indicated Appellant s PRS was RFEL, thereby increasing his sentencing guidelines. Appellant did not object to the application of the RFEL PRS at sentencing. He did not seek to withdraw his pleas. Using the guidelines that were based on RFEL status and that corresponded to Appellant s offenses, the sentencing court then imposed incarceration within Appellant s standard guideline ranges. Appellant filed a post-sentence motion for reconsideration of sentence. Therein, he asked the court to lower his sentence by applying the standardrange guidelines corresponding to a PRS of five. The court denied the motion. Appellant filed this appeal. Counsel s petition and brief substantially comply with the dictates of Anders/Santiago and, therefore, we have conducted our own review of this - 2 -

3 matter. See Santiago, 978 A.2d at , 361 (discussing Anders process). Having done so, we find this matter to be frivolous. Numerous opinions detail the legal principles relevant to our review of discretionary sentencing claims. See Commonwealth v. Brown, 982 A.2d 1017, 1020 (Pa. Super. 2009); Commonwealth v. Feucht, 955 A.2d 377, (Pa. Super. 2008); Commonwealth v. Kalichak, 943 A.2d 285, (Pa. Super. 2008); Commonwealth v. Flores, 921 A.2d 517, 523 (Pa. Super. 2007) (overruled on other grounds by Commonwealth v. Goodwin, 928 A.2d 287, 293 n.2 (Pa. Super. 2007)); Commonwealth v. Hardy, 918 A.2d 766, 779 (Pa. Super. 2007); Commonwealth v. Malovich, 903 A.2d 1247, (Pa. Super. 2006). Accordingly, we will not reiterate all those principles here. Instead, the following discussion will suffice. There can be times when an incorrectly calculated PRS presents a substantial question regarding the propriety of a sentence such that this Court will grant allowance of appeal. See Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007). However, Appellant does not wish to argue that his RFEL score was arithmetically wrong in light of his prior record. Indeed, he preserved no such claim in the sentencing court and, therefore, it would be frivolous for him to attempt such a claim on this appeal. Commonwealth v. O Malley, 957 A.2d 1265, 1267 n.3 (Pa. Super. 2008); Pa.R.A.P. 302(a)

4 There can also be cases when the application of numerically accurate sentencing guidelines is clearly unreasonable in light of the particular circumstances of the case. See 42 Pa.C.S.A. 9781(c)(2). Thus, an allegation that the application of otherwise accurate guidelines was unreasonable may, at times, lead this Court to grant allowance of appeal and, perhaps, ultimately grant relief. Id. 9781(b), (c)(2). The claim that Appellant preserved in his post-sentence motion and that he again raises here is more akin to that type of issue: He apparently agrees the PRS and corresponding sentence ranges were calculated accurately, but he wants to argue they should not have been applied to him because of his pre-plea belief that was based on information from the Commonwealth. There is nothing in the record that would support a non-frivolous claim that Appellant s RFEL-based sentence ranges should not have been used. As the sentencing court pointed out during sentencing, Appellant surely knew his own criminal history at the time of his pleas, regardless of what information the Commonwealth had supplied to him during discovery. Moreover, even if the Commonwealth provided him with an inaccurate history and/or PRS before he pled guilty, he knew the correct PRS before he was sentenced. Given the facts that Appellant can certainly be charged with knowledge of his own prior record, that he was aware of his RFEL PRS before he was sentenced, that he did not seek to withdraw his pleas after having learned of the accurate PRS, and that he decided to proceed with sentencing while - 4 -

5 knowing his correct PRS, his intended complaint about the discretionary aspects of his sentence i.e., that it was unreasonable for the court to apply the RFEL score is frivolous. 1 Therefore, we affirm the judgment of sentence and grant counsel permission to withdraw. Judgment of sentence affirmed. Counsel s petition to withdraw granted. Judgment Entered. Deputy Prothonotary Date: 6/11/ Despite the claims made by the parties in their briefs, the exact extent to which Appellant s specific prior convictions were inaccurately listed in the pre-plea discovery materials is not absolutely clear to us. However, we do see that plea-agreement documents from the Commonwealth incorrectly listed Appellant s PRS as five. In any event, even assuming the pre-plea information from the Commonwealth was as inaccurate as Appellant claims, this appeal is frivolous for the reasons we have discussed