J-S46020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

JOHN RUSSELL GATES 

 Appellant No. 1255 MDA 2013 

Appeal from the Judgment of Sentence May 17, 2013

In the Court of Common Pleas of Huntingdon County 

Criminal Division at No(s): CP-31-CR-0000415-2012 

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 20, 2014 

 John Russell Gates appeals from his judgment of sentence, entered in 

the Court of Common Pleas of Huntingdon County, after entering an open 

guilty plea to nine counts of theft by failure to make required disposition of 

funds received (F-3).1

 Gates was sentenced to an aggregate term of 54 to 

144 months’ (41⁄2-12 years) imprisonment2

 and ordered to pay restitution to 

his victims in the amount of $455,158.31. Counsel has also filed a brief 

seeking to withdraw from representing Gates on appeal, pursuant to 

____________________________________________ 

1

 18 Pa.C.S. § 3927(a). 

2

 The trial judge found Gates eligible for the Recidivism Risk Reduction 

Incentive (RRRI) program so his minimum sentence was reduced to 45 

months in prison. 
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Anders/McClendon/Santiago.

3

 After careful consideration, we affirm 

Gates’ judgment of sentence and grant counsel’s petition to withdraw.

 Gates, a former Huntingdon County attorney,4

 allegedly failed to 

distribute over $455,000 of funds from nine clients and their families 

between April 1, 2011 and December 31, 2011. On February 13, 2013, 

Gates entered a guilty plea in exchange for the Commonwealth agreeing to 

nolle prosse 26 remaining charges. After a presentence investigation report 

was ordered and reviewed by the trial judge,5

 Gates was sentenced to eight 

consecutive sentences of 6 to 18 months in prison, with a two-year 

probationary tail. As a condition of his sentence, Gates was ordered to pay 

his victims restitution in the amount of $455,158. Gates filed a timely 

motion for reconsideration, which was denied after a hearing. This timely 

appeal was subsequently filed. 

 When faced with a purported Anders brief, this Court may not review 

the merits of the underlying issues without first passing on the request to 

____________________________________________ 

3 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). 

4

 Gates was disbarred, effective February 8, 2012. 

5

 In November 2013, the sentencing judge, the Honorable Timothy S. 

Searer, lost his bid for reelection. Because Judge Searer had not filed a 

Pa.R.A.P. 1925(a) opinion at the time of his leaving office, the only record 

we have of the judge’s reason for Gates’ sentence is the transcript of the 

sentencing hearing. 
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withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 

2005). In order for counsel to withdraw from an appeal pursuant to 

Anders, certain requirements must be met. 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. 

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)). 

Instantly, counsel’s petition to withdraw from representation states 

that he has made a conscientious examination of the record and concluded 

the appeal is wholly frivolous. Counsel indicates he supplied Gates with a 

copy of the brief and a letter explaining his right to proceed pro se or with 

privately-retained counsel, to raise any other issues he believes might have 

merit. Counsel also has submitted a brief, setting out in neutral form the 

issue Gates wished to raise on appeal. Thus, counsel has substantially 

complied with the Anders/McClendon/Santiago requirements. 

 Because counsel has satisfied the procedural requirements for 

withdrawal, this Court must now conduct its own review of the proceedings 

and render an independent judgment as to whether the appeal is, in fact, 
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wholly frivolous. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. 

Super. 2004). 

 In his pro se brief on appeal, Gates raises twelve issues. Several of

those issues concern the adequacy of the trial judge’s oral guilty plea 

colloquy. Specifically, Gates claims the judge’s colloquy did not comply with 

legal requirements showing that his conduct proved all the elements of the 

offenses for which he pled guilty and that the colloquy failed to set forth 

sufficient facts to support the criminal elements. Because Gates failed to 

include these issues in his timely filed post-sentence motion and did not 

object during the colloquy or file a motion to withdraw his plea, technically 

these claims are waived. See Pa.R.Crim.P. 702(B)(1)(a)(i); see also 

Pa.R.Crim.P. (B)(1)(c) (“Issues raised before or during trial shall be deemed 

preserved for appeal whether or not the defendant elects to file a postsentence motion on those issues.”). However, even if we did not deem 

these issues waived, we would conclude that they are frivolous. See 

Commonwealth v. Hernandez, 783 A.2d 784 (Pa. Super. 2001) (even 

where claims on appeal are technically waived due to counsel’s failure to file 

Pa.R.A.P. 1925(b) statement, under Anders appellate court must review 

claims on merits to determine if counsel is permitted to withdraw). 

A review of Gates’ oral and written guilty plea colloquies demonstrates 

that the judge complied with the applicable rules regarding the tender of 

pleas and plea agreements. See generally Pa.R.Crim.P. 590. Specifically, 
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Judge Searer discussed the nature of the charges brought against Gates, 

see N.T. Oral Guilty Plea, 2/13/13, at 2-3, and the deputy attorney general 

gave detailed accounts of each of Gates’ nine victims as it relates to the 

factual bases of his plea, id. at 4-8. Accordingly, we find that the oral plea 

colloquy sufficiently set forth Gates’ conduct in relation to the elements of 

the offenses for which he pled guilty and that there was a sufficient factual 

basis for his plea. 

Three of Gates’ issues concern the discretionary aspects of his sentence.6

 

When the discretionary aspects of a sentence7

 are questioned, an appeal is not 

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6

 Our standard of review when a defendant challenges the discretionary 

aspects of a sentence is very narrow. We will reverse only where the 

defendant has demonstrated a manifest abuse of discretion. 

Commonwealth v. Hermanson, 674 A.2d 281, 283 (Pa. Super. 1996). 

7

 We recognize that there are several types of guilty pleas: (1) an open plea 

(where there is an agreement as to charges to be brought, but no 

agreement with regard to sentence), (2) a hybrid plea (where agreement did 

not include specific term of imprisonment, but placed limitations on sentence 

(i.e., only certain charges would run consecutively) and also specified 

charges), and (3) a negotiated plea (where parties bargain for a specific 

sentence as well as charges to be brought). Commonwealth v. Dalberto, 

648 A.2d 16, 21 (Pa. Super. 1994). Despite the fact that Gate’s written 

guilty plea indicates he is limited to raising four specific issues on appeal, 

see Guilty Plea Colloquy, 2/13/2013, at ¶34 (“After you enter your guilty 

plea . . . [an] appeal from a guilty plea is limited to . . . guilty plea was not 

knowing, intelligent and voluntary; that the Court did not have jurisdiction to 

accept your plea[;] that the Court’s sentence is beyond the maximum 

penalty authorized by law; and that [counsel] was ineffective[.]”), because 

Gates’ plea was not negotiated with regard to sentence, he cannot be 

restricted from raising discretionary aspect of sentencing claims on appeal. 

See Dalberto, 648 A.2d at 18 (“[T]he determination of whether 

discretionary aspects of sentencing may be challenged after a guilty plea is 

(Footnote Continued Next Page) 
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guaranteed as of right. Commonwealth v. Moore, 617 A.2d 8, 11 (Pa. 

Super. 1992). Rather, two criteria must be met before an appeal may be 

taken. First, the appellant must “set forth in his brief a concise statement of 

the reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of the sentence,” Pa.R.A.P. 2119(f), and second, an 

appeal will only be granted when a “substantial question” has been presented. 

42 Pa.C.S. § 9781(b); Moore, 617 A.2d at 11. An appellate court will find a 

“substantial question” and review the decision of the trial court only where an 

aggrieved party can articulate clear reasons why the sentence imposed by the 

trial court compromises the sentencing scheme as a whole. Commonwealth 

v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (Pa. 1987). 

 First, Gates claims that the court erred in sentencing him on nine 

counts consecutively, rather than running all nine counts concurrently to one 

another because they are all part of “a single scheme.” The imposition of 

consecutive rather than concurrent sentences lies within the sound discretion 

of the sentencing court. Challenges to the exercise of this discretion 

ordinarily do not raise a substantial question. Commonwealth v. Pass, 

914 A.2d 442, 446-47 (Pa. Super. 2006). Section 9721 of the Sentencing 

Code affords the sentencing court discretion to impose its sentence 

(Footnote Continued) _______________________ 

entered depends upon the actual terms of the plea bargain, specifically, to 

what degree a sentence agreement has been reached.”).
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concurrently or consecutively to other sentences being imposed at the same 

time or to sentences already imposed. Commonwealth v. Marts, 889 A.2d 

608 (Pa. Super. 2005). In imposing a sentence, the trial judge may 

determine whether, given the facts of a particular case, a sentence should 

run consecutive to or concurrent with another sentence being imposed. 

Commonwealth v. Perry, 883 A.2d 599 (Pa. Super. 2005). The key to 

resolving the preliminary substantial question inquiry is whether the decision 

to sentence consecutively raises the aggregate sentence to, what appears 

upon its face to be, an excessive level in light of the criminal conduct at 

issue in the case. Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. 

Super. 2010). Because Gates also claims his sentence is excessive, as a 

result of multiple counts running consecutively, we find that he has 

presented a substantial question for our review. Id.

 The crime of theft by failure to make required disposition of funds is 

defined as: 

A person who obtains property upon agreement, or subject 

to a known legal obligation, to make specified payments or 

other disposition, whether from such property or its 

proceeds or from his own property to be reserved in 

equivalent amount, is guilty of theft if he intentionally 

deals with the property obtained as his own and fails to 

make the required payment or disposition. The foregoing 

applies notwithstanding that it may be impossible to 

identify particular property as belonging to the victim at 

the time of the failure of the actor to make the required 

payment or disposition. 

18 Pa.C.S. § 3927(a). 
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Here, nine individual victims and their families were affected by Gates’ 

actions, with the total theft exceeding $450,000. The client funds that Gates 

misappropriated for personal use included: (1) proceeds from decedents’ 

estates he represented; (2) money that should have been disbursed to a 

nursing home for the care of a client’s father; and (3) money held in escrow 

for clients. Gates signed a written plea colloquy acknowledging the extent of 

his criminal actions, indicating that he understood the factual nature of the 

offenses to which he was pleading guilty and that he was aware of the 

permissible range of sentences and/or fines that could be imposed. 

Moreover, he stated that he understood that the trial court could impose 

consecutive sentences. Under such circumstances, we do not find Gates’ 

aggregate sentence of 54 to 144 months’ imprisonment (consisting of nine 

counts running consecutively) is excessive, especially where the 

Commonwealth agreed to nolle prosse 26 criminal charges and the sentence 

for each individual count was within the standard range of the guidelines. 

See Commonwealth v. Fiascki, 886 A.2d 261 (Pa. Super. 2005) (where 

trial court considered unique circumstances of crimes and effect that crimes 

had on each of 23 individual theft victims, trial court’s sentence of 10-20 

years’ incarceration for defendant’s guilty plea to 23 counts of theft by 

failure to make required disposition of funds was not unreasonable). 

 Gates also asserts that pursuant to 18 Pa.C.S. § 3902 his theft 

offenses should have constituted a single offense for sentencing purposes. 

We disagree. 
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 Under section 3902 (Consolidation of theft offenses): 

Conduct denominated theft in this chapter constitutes a single 

offense. An accusation of theft may be supported by evidence 

that it was committed in any manner that would be theft under 

this chapter, notwithstanding the specification of a different 

manner in the complaint or indictment, subject only to the power 

of the court to ensure fair trial by granting a continuance or 

other appropriate relief where the conduct of the defense would 

be prejudiced by lack of fair notice or by surprise. 

18 Pa.C.S. § 3902. As previously noted, Gates pled guilty to only one theft 

offense, the offense of theft by failure to make required disposition of funds 

received, 18 Pa.C.S. § 3927(a). The fact that Gates was sentenced on nine 

separate counts for a single theft offense is legally permissible and does not 

violate section 3902. Compare Commonwealth v. Haines, 442 A.2d 757 

(Pa. Super. 1982) (where defendant convicted of theft by unlawful 

taking/disposition and receiving stolen property was properly sentenced on 

only one theft offense under section 3902; defendant’s conduct proscribed 

by both crimes making counts superfluous) with Fiascki, supra

(defendant’s guilty plea to 23 counts under section 3927 proper where there 

were 23 individual theft victims).

 Finally, Gates claims that his sentence is illegal for the following 

reasons: (1) the prosecution committed “sentencing manipulation” by 

separating one crime into nine counts and (2) several of the counts should 
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have merged, for sentencing purposes, into the one offense as “lesser 

included offenses.”8

 Gates’ arguments are misplaced.

 In Commonwealth v. Petzold, 701 A.2d 1363 (Pa. Super. 1997), our 

Court stated that sentencing manipulation occurs when "a defendant, 

although predisposed to commit a minor or lesser offense, is entrapped in 

committing a greater offense subject to greater punishment." 

Commonwealth v. Paul, (Pa. Super. 2007), citing Commonwealth v. 

Petzold, 701 A.2d at 1365. Here, Gates was not entrapped into committing 

additional acts of theft beyond the monies he misappropriated from his first 

client-victim. In short, the prosecution or government had no involvement 

in encouraging his criminal conduct or prolonging his illegal actions beyond 

the first criminal act in April 2011. Therefore, this claim has no merit. 

 With regard to Gates’ claims that the nine counts should have merged 

for sentencing purposes, based on the fact that his conduct should be 

considered a single crime, we also find he is due no relief. 

 Pursuant to section 9765 (Merger of sentences): 

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the 

other offense. Where crimes merge for sentencing purposes, the 

court may sentence the defendant only on the higher graded 

offense. 

____________________________________________ 

8

 A claim that crimes should have merged for sentencing purposes raises a 

challenge to the legality of the sentence. Commonwealth v. Allen, 24 

A.3d 1058, 1062 (Pa. Super. 2011). 
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42 Pa.C.S. § 9765 (emphasis added). 

 Here, Gates failed to properly dispose of the funds of nine clients, nine 

separate times. As a result, his conduct was not part of a single criminal 

episode; rather, he violated section 3927 each time he committed theft 

against each of his nine victims. Therefore, merger, as defined in section 

9765, is inapplicable. 

 Judgment of sentence affirmed. Petition to withdraw granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/20/2014