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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MITCHELL CRAIG LITZ

                            Appellant                  No. 516 WDA 2016


              Appeal from the Judgment of Sentence March 1, 2016
                   In the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0001495-2015


BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                             FILED APRIL 18, 2017

       Mitchell Craig Litz appeals from the March 1, 2016 judgment of

sentence entered in the Erie County Court of Common Pleas following his

guilty plea to aggravated assault by vehicle while driving under the influence

(“Count One”), accidents involving death or personal injury (“Count Three”),

driving under the influence – highest rate of alcohol (“Count Six”), and

driving while operating privilege is suspended or revoked (“Count Nine”).1

Litz’s appellate counsel has filed an Anders2 brief and a petition to

withdraw. We affirm and grant counsel’s petition to withdraw.
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           75 Pa.C.S. §§ 3735.1(a), 3742(a), 3802(c), 1543(a), respectively.
       2
           Anders v. California 386 U.S. 738 (1967).
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       On July 18, 2014, Litz caused a motor vehicle collision while driving

under the influence of alcohol. N.T., 3/1/16, at 20. After the collision, Litz

fled the scene, leaving an injured, 12-year-old family friend in the back seat

of the car. Id. at 20-21. Before taking off into the woods, Litz took a 12-

pack of beer and some loose beer cans that he had in his car.          Id.   Litz

repeatedly called the police barracks and informed the police he was at a

certain location, but when the police arrived he was not there. Id. at 21-22.

Two and one-half hours after the incident, he walked out of the woods and

was arrested. Id. at 22. The police brought Litz to the hospital where two

blood draws were performed:             The first indicated a .299 blood alcohol

content (“BAC”) and the second indicated a .27 BAC. Id.

       On January 6, 2016, Litz entered a guilty plea to the aforementioned

counts.    On March 1, 2016, the trial court sentenced Litz to an aggregate

term of 102 to 204 months’ incarceration.3               He filed a motion to

reconsider/modify sentence on March 8, 2016, which the trial court denied

on March 11, 2016. On April 7, 2016, Litz filed his notice of appeal to the

Superior Court.

       Because counsel has filed a petition to withdraw pursuant to Anders



____________________________________________


       3
       The trial court sentenced Litz to 60 to 120 months’ incarceration at
Count One and a consecutive term of 42 to 84 months’ incarceration at
Count Three. Count Six merged with Count One for sentencing purposes.




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and its Pennsylvania counterpart, Santiago,4 we must address counsel’s

petition     before   reviewing     the    merits   of   Litz’s   underlying   issues.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007).

       Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by the

Pennsylvania Supreme Court in Santiago. The brief 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. Santiago, 978 A.2d 349, 361 (Pa. 2009).                        Counsel

must also provide a copy of the Anders brief to the appellant, together with

a letter that advises appellant of his or her right to “(1) retain new counsel

to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points

that the appellant deems worthy of the court’s attention in addition to the

points raised by counsel in the Anders brief.”                    Commonwealth v.

Orellana, 86 A.3d 877, 880 (Pa.Super. 2014) (quoting Commonwealth v.

Nischan, 928 A.2d 349, 353 (Pa.Super. 2007)).                Substantial compliance




____________________________________________


       4
           Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).



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with these requirements is sufficient.      Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007).

      Counsel’s petition states that she conducted a thorough review of the

record and determined that any appeal would be frivolous. In the Anders

brief, counsel provides a summary of the facts and procedural history of the

case, refers to evidence of record that might arguably support the issues

raised on appeal, states her conclusion that the appeal is frivolous, and cites

relevant case law to support her conclusion that the appeal is frivolous.

Additionally, counsel provided Litz with a copy of the Anders brief and

petition to withdraw, together with a letter advising Litz of counsel’s intent to

withdraw and of Litz’s right to retain new counsel or proceed pro se to raise

any additional points. Accordingly, counsel has substantially complied with

the requirements of Anders and Santiago.

      Litz has not filed a pro se brief or a counseled brief with new,

privately-retained counsel.   We, therefore, review the issues raised in the

Anders brief.

      Counsel raises the following issue:       “Whether [Litz]’s sentence is

manifestly excessive, clearly unreasonable        and inconsistent with      the

objectives of the Sentencing Code.” Anders Br. at 3.

      When challenging the discretionary aspects of sentencing, an appellant

is “not entitle[d] . . . to review as of right.” Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super. 2011). We must first determine:




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            (1) whether the appeal is timely; (2) whether Appellant
            preserved his issue; (3) whether Appellant’s brief includes
            a concise statement of the reasons relied upon for
            allowance of appeal with respect to the discretionary
            aspects of sentence; and (4) whether the concise
            statement raises a substantial question that the sentence
            is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));

see also Allen, 24 A.3d at 1064.

       Litz’s appeal is timely, and the Anders brief contains a concise

statement of the reasons relied upon for allowance of appeal. Furthermore,

Litz’s claim that the trial court failed to consider the factors set forth in 42

Pa.C.S. § 9721(b)5 in imposing a sentence above the aggravated range

raises a substantial question.         See Commonwealth v. Dodge, 77 A.3d

1263, 1272 n.8 (Pa.Super. 2013) (“arguments that the sentencing court

failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question”). However, we agree with the trial court that while Litz

properly preserved his claim as to Count Three, he failed to preserve his
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       5
           Section 9721(b) of the Sentencing Code provides in relevant part:

            [T]he court shall follow the general principle that the
            sentence imposed should call for confinement that is
            consistent with the protection of the public, the gravity of
            the offense as it relates to the impact on the life of the
            victim and on the community, and the rehabilitative needs
            of the defendant.

42 Pa.C.S. § 9721(b).



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claim with regard to Count One.6               See 1925(a) Opinion, 6/22/16, at 3

(“1925(a) Op.”).7 Thus, we will consider the merits as to Count Three only.

       “Sentencing is a matter vested within the discretion of the trial court

and will not       be   disturbed absent        a manifest abuse   of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                  “An

abuse of discretion requires the trial court to have acted with manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

____________________________________________


       6
           The sentence imposed at Count One was in the standard range.
       7
           In Litz’s motion, he asserted:

            4. Counsel is only requesting that the Court reconsider
            modifying Count 3 to a term of incarceration [in] the
            standard range of the guidelines as opposed to beyond the
            aggravated range.

            5. [Trial] counsel respects the Court’s wisdom in fashioning
            the sentence and the reasons for it, however, it appears to
            be unduly harsh at Count 3.

            6. [Trial] counsel believes that a standard range sentence,
            perhaps in the high end, would still achieve the
            punishment that this Honorable Court was seeking and
            [Litz] deserves.

            7. [Trial] counsel believes that the sentencing guidelines
            already take into account [Litz]’s prior record and current
            offense, therefore he should be sentenced within the
            standard range. However, if the Court will not reconsider
            sentencing [Litz] in the standard range, we would
            respectfully request an aggravated range instead of one
            beyond the aggravated range.

Mot. to Modify Sent., 3/8/16, ¶¶ 4-7.



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support so as to be clearly erroneous.” Id. “A sentencing court need not

undertake a lengthy discourse for its reasons for imposing a sentence or

specifically reference the statute in question, but the record as a whole must

reflect the sentencing court’s consideration of the facts of the crime and

character of the offender.” Id. at 1283.

       Litz argues that the trial court failed to consider his rehabilitative

potential in that he has the ability to be a productive member of society, he

showed remorse for his actions, and he admitted fault. We disagree.

       The trial court considered

           the pre-sentence investigative report,[8] the Pennsylvania
           Sentencing Code and all its factors, the Pennsylvania
           Sentencing Guidelines, statements by the parties, and
           submissions from the defense and the Commonwealth.
           N.T. Sentencing, 03/01/16, at 14-28. Th[e trial court] also
           heard testimony from the victim, David Peters, who
           testified to his extensive injuries, ongoing medical
           treatment, the loss of his employment due to his injuries.
           Id., at 7-12.

1925(a) Op. at 4.       Among the submissions from the defense were letters

explaining “what [Litz] went through and the childhood and the horrific

childhood that he endured.” N.T., 1/1/16, at 14.

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       8
         “Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).




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       Additionally, the trial court stated its reasons for deviating from the

sentencing guidelines on the record. In fashioning Litz’s sentence, the trial

court stated:

           But looking at this case in its entirety and all [of Litz]’s
           conduct that day, on his decades of drinking and driving
           and killing someone in the past and almost killing someone
           in the present, the appropriate sentence is above the
           aggravated ranges of the guidelines. And I’m going to
           impose a sentence of three and a half to seven years on
           this count. And it’s my intention this count be consecutive
           to Count 1.

              So I’m going beyond the standard range and beyond
           the aggravated range. This has been decades and decades
           of [Litz] drinking and driving. I don’t find him to be an evil
           person, but his inability to control his conduct has logically
           led to the death of two people[9] and would lead to the
           deaths of more, perhaps, if he were permitted.

              In imposing this sentence, it’s not my intention to
           rehabilitate [Litz], that’s beyond the state’s power. It is
           simply my intention to punish and incapacitate him for as
           long a period as the law allows. If rehabilitation can occur,
           that would be nice, but my primary goal is simply to
           incapacitate someone who has proven himself to be a
           danger to all of us.
                                         ...

              My recommendation to the state is that [Litz] receive a
           mental health evaluation and alcohol counselling, but
           that’s a matter for state authorities.

N.T., 3/1/16, at 31-33; 1925(a) Op. at 4.
____________________________________________


       9
        It appears that the trial court may have misspoken, as the record
shows that Litz had one prior involuntary manslaughter conviction, not two.
See N.T., 3/1/16, at 26-27 (“The Court: . . . this is the second time
someone has basically been hurt by [Litz]. In October of ’79, it shows . . .
involuntary manslaughter, which looks to me like someone died in a vehicle
in which [Litz] was operating. . . . Litz: Yes.”).



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      While we are mindful that a trial court should consider all section 9721

factors in fashioning its sentence, it is also clear that some factors may

weigh more heavily than others. That the trial court may have placed more

weight on the need for protection of the public and the gravity of the offense

is not violative of section 9721(b), which simply requires the court to

consider all the factors set forth therein. The trial court found that the need

for protection of the public and the gravity of the offense outweighed Litz’s

rehabilitative needs.   We conclude that the trial court properly considered

the section 9721(b) factors and the mitigating factors in sentencing Litz

outside the guidelines and, therefore, did not abuse its discretion.

      Judgment of sentence affirmed.       Petition for leave to withdraw as

counsel granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




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