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NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :
: JUSTIN SCOTT DIGNARD , : No. 1629 W DA 20 17

: Appellant :

Appeal from the Judgment of Sentence
, August 9, 2016 , in the Court of Common Pleas of Venango County Criminal Division at No. CP

- 61

- CR

- 0000143

- 2016

BEFORE: OLSON , J., MURRAY , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 15, 2018

Justin Scott Dignard appeals from the August 9, 2016 1 judgment of

sentence entered in the Court of Common Pleas of Venango County followin g

his convictions for robbery

— threat of serious bodily injury and robbery

(felony 2). 2 Matthew C. Parson, Esq. (“Attorney Parson” ) has filed an

application to withdraw, alleging that the appeal is frivolous, accompanied by

1 Appellant’s appeal rights were reinstated pursuant to a petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546, proceeding. Appellant’s appellate counsel mistakenly stated that he appealed to this court from the order of October 2, 2017, which granted the PCRA petition. Appellant’s appeal properly lies from the judgment of sentence, dated August 9, 2016. T he caption originally stated that the appeal was from the PCRA order. We have amended the caption accordingly.

2 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 3701(a) (1)(v), respectively.J. S 21 0 35 /1 8

- 2

-

an Anders brief. 3 After careful review, we grant coun sel’s petition to withdraw

and affirm the judgment of sentence.

The following factual and procedural history as originally set forth by the

trial court is as follows:

The above

- captioned cases arise out of two armed robberies of businesses located in Oil City, Pennsylvania, occurring on December 30, 2011 and June 1, 2012, respectively. [Appellant] eluded authorities for a lengthy period of time, but was eventually arrested .

. . . [Appellant] signed a plea agreement dated June 2, 2016, in which he pled g uilty to Count 2, Robbery

Threat of Serious Bodily Injury (Felony 1) at CR No. 143

- 2016, and Count 1, Robbery (Felony 2) at CR No. 142

- 2016. The Commonwealth recommended [appellant] serve standard range sentences at both counts and that they be served con currently.

Prior to sentencing, [appellant] underwent a pre
- sentence investigation and his prior record score was calculated as being a three (3). The guidelines called for a sentence of fifteen (15) to twenty

- one (21) months, and the statutory minimum

a nd maximum sentences were sixty (60) to one hundred and twenty (120) months at Count 1, Felony 2 Robbery. The guidelines called for a sentence of forty

- two (42) to fifty

- four (54) months, and the statutory minimum and maximum sentences were one hundred an d twenty (120) to two hundred and forty [240] months at Count 2, Felony 1 Robbery

Threat of Serious Bodily Injury.

On August 9, 2016, [appellant] was sentenced by this Court at CR No. 142

- 2016 on Count 1, Felony 2 Robbery as follows:

3 See Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).J. S 21 0 35 /1 8

- 3

- pay the costs of pro secution, all other costs, pay a fine $0 in order to facilitate restitution, make restitution payable to the Clerk of Court[s] of Venango County, in the sum of $900, for the use of Leroy and Elizabeth George, said restitution shall be paid in ten (10) year s and is a condition of sentence, and undergo an imprisonment in a STATE INSTITUTION OF THE DEPARTMENT OF CORRECTIONS for a minimum of which shall be twenty

- one (21) months, the maximum of which shall be ten (10) years.

Judge Boyer’s August 9, 2016 Amende d Sentence Order (emphasis in original). In the same sentence order, [appellant] was sentenced by this Court at CR No. 143

- 2016 on Count 2, Felony 1 Robbery

Threat of Serious Bodily Injury as follows:

pay the costs of prosecution, all other costs, pay a fine $0 in order to facilitate restitution, make restitution payable to the Clerk of Court[s] of Venango County, in the sum of $6,130, for the use of Thorne’s Market, 809 Grandview Road, Oil City, Pennsylvania, 16301 (Said Restitution shall be joint and se veral with codefendant, Adrian Dignard at C.R. No. 78

- 2016.) said restitution shall be paid with [sic] ten (10) years and is a condition of sentence, and undergo an imprisonment in a STATE INSTITUTION OF THE DEPARTMENT OF CORRECTIONS for a minimum of which shall be forty

- two (42) months, the maximum of which shall be twenty (20) years.

Id. (emphasis in original). The Court stated that the sentences imposed at CR No. 142

- 2016 and CR No. 143

- 2016 were to be served concurrently. Id.J. S 21 0 35 /1 8

- 4

- [Appellant] filed a tim ely notice of appeal, and [appellant] filed the instant Concise Statement on November 17, 2017. [ 4 ]

Trial court opinion, 12/8/17 5 at 1

- 3.

Appellant raises the following issue for this court’s review: “Whether

the Sentencing Court erred as a matter of law or abused its discretion when

the Sentencing Court ordered a Sentence to the maximum of the statute for

the sole basis of ensuring restitution was paid in full[?]” (Appellant’s brief

at 5.)

On February 1 6 , 2018, Attorney Parson filed in this court a petition f or

leave to withdraw as counsel, because he found the appeal to be “ wholly

frivolous ,” and an Anders brief. (Petition for leave to withdraw as counsel,

2/16/18 at 1, ¶ 4 (emphasis in original).) This court denied the petition to

withdraw on the basis that Attorney Parson failed to comply with the third and

fourth requirements of Santiago in that he failed to set forth his conclusion

that the appeal was frivolous and failed to set forth his reasons for concluding

that the appeal was frivolous.

4 Appellant filed for reinstatement of his appeal rights due to ineffective assistance of counsel under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546. On October 2, 2017, the trial court granted the PCRA petition and ordered Attorney Parson, appellant’s PCRA counsel, to file a direct appeal on behalf of appellant from the judgment of sentence. Attorney Parson f iled the notice of appeal on October 26, 2017.

5 The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on December 8, 2017.J. S 21 0 35 /1 8

- 5

-

W hen this court denied the petition to withdraw, we remanded this case

to the trial court with instruction to counsel to file either a compliant

Anders / Santiago brief or an advocate’s brief within 30 days of the date of

this court’s memorandum. Attorney Pa rson filed a timely Anders brief on

June 20, 2018

. A request by appointed counsel to withdraw

pursuant to Anders and Santiago gives rise to certain requirements and obligations, for both appointed counsel and this Court. Commonwealth v. Flowers , 113 A. 3d 1246, 1247

- 1248 (Pa.Super. 2015).

These requirements and the significant protection they provide to an Anders appellant arise because a criminal defendant has a constitutional right to a direct appeal and to counsel on that appeal. Commonwealth v. Woo ds , 939 A.2d 896, 898 (Pa.Super. 2007). This Court has summarized these requirements as follows:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the AndersJ. S 21 0 35 /1 8

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- petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise additional points worthy of the Court’s attention.

Woods , 939 A.2d at 898 (citations omitted).

There are also requi rements as to the precise requirements of an Anders brief:

[T]he Anders brief that accompanies court

- appointed counsel’s petition to withdraw

. . . 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 appeal is frivolous. Counsel should articulate the relevant fa cts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago , 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed counsel has met these obligations, it is then our responsibility “to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” Id. at 1248. In so doing, we review not only theJ. S 21 0 35 /1 8

- 7

- issues identified by appointed counsel in the Ande rs brief, but examine all of the proceedings to “make certain that appointed counsel has not overlooked the existence of potentially non

- frivolous issues.” Id.

Commonwealth v. Hankerson , 118 A.3d 415, 419

- 420 (Pa.Super. 2015).

Regarding the requirement s of Anders , Attorney Parson has filed a

petition that avers that, after a conscientious examination of the record, he

finds the appeal to be wholly frivolous. He has also filed a brief that attempts

to set forth the issues that might arguably support the appeal. He identifies

the issue in the statement of questions involved in the brief as “Whether the

Sentencing Court erred as a matter of law or abused its discretion when the

Sentencing Court ordered a Sentence to the maximum of the statute for the

sole basis of ensuring restitution was paid in full [?]” ( Anders brief at 5.) The

body of the argument section of the brief addresses the issue contained in the

statement of questions involved, so the issue set forth in the brief complies

with Anders . A revie w of the record reveals that Attorney Parson complied

with the requirements of Anders concerning notification to appellant

. With respect to the requirements of Santiago , Attorney Parson has

provided a summary of the procedural history and facts. He has a lso set forth

his conclusion that the appeal is frivolous. Attorney Parson reaches this

conclusion because , based on his review of the relevant case law, the trial

court’s imposition of a sentence with the maximum sentence at the statutory

limit does not constitute an abuse of discretion.J. S 21 0 35 /1 8

- 8

-

Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wh olly

frivolous.” Santiago , 978 A.2d at 355 n.5. As Attorney Parson has fulfilled

the requirements of Santiago , we now turn to the merits of appellant’s

appeal.

The possible issue raised in the brief is that the trial court erred as a

matter of law or abused its discretion when it ordered a sentence to the

statutory maximum for the sole basis of ensuring that restitution was paid in

full.

In reviewing the recor d, the t rial court had the benefit of a pre

- sentence

investigation report when it imposed the sentence on appellant. The trial court

imposed minimum sentences within the sentencing guidelines for both robbery

convictions. The trial court imposed the stat utory maximums for both robbery

convictions and ran the sentences concurrent to one another. At the

sentencing hearing, the trial court initially stated, “I am putting the maximum

period of supervision in, that’s because of the restitution.” (Notes of

te stimony , 8/9/16 at 22. ) However, later at the sentencing hearing, the trial

court attempted to clarif y the sentencing with respect to restitution:

At the restitution I need to say, restitution shall be paid within twenty years. Restitution is a condition of sentence. Now that’s on the

--- wow that’s

--- no I can’t do that because of the ten years. I need to say on both of these cases, restitution shall be paid within ten years and is a condition of sentence, because the maxJ. S 21 0 35 /1 8

- 9

- on that $6,130 is the ten year se ntence, it can’t exceed that. So restitution has to be paid in ten years as a condition of sentence on both. Okay.

Id. at 26

- 27.

In addition , while discussing the imposition of the sentence, the trial

court stated, “[a]ny lesser sentence would deprecia te the seriousness of the

offense.” ( Id. at 25. )

After a revi ew of the sentencing hearing transcript, it is apparent that

the trial court did not impose the statutory maximum sentences in order for

appellant to pay restitution. One can see how appellant might think that the

trial court based the sentence on restitution, but a review of the transcript as

a whole yields a different interpretation. Attorney Parson is correct when he

determined that this issue was frivolous as it is not an accurate

characte rization of the trial court’s reasoning for the sentence. On the record,

the trial court stated that it imposed the sentences due to the seriousness of

the offenses

. A n appeal based on this issue of a sentence based on restitution

would be frivolous. Th is court reviews challenges to discretionary aspects of

sentencing based on whether there was a manifest abuse of discretion.

Commonwealth v. Mola , 838 A.2d 791, 792 n.2 (Pa.Super. 2003) . This

court agrees with Attorney Parson that the trial court did not commit a

manifest abuse of discretion.J. S 21 0 35 /1 8

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-

Additionally, our independent review of the entire record has not

disclosed any potentially non

- frivolous issues. Consequently, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

Ju dgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/15/2018