J-S72037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 DARON MARQUISE DERRY                    :
                                         :   No. 803 EDA 2017
                    Appellant

          Appeal from the Judgment of Sentence February 3, 2017
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0004685-2016


BEFORE:    BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED DECEMBER 27, 2017

      Appellant Daron Marquise Derry appeals from the judgment of sentence

entered in the Court of Common Pleas of Bucks County after Appellant entered

a negotiated guilty plea.       Appellant’s counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009).               After

careful review, we grant counsel’s petition to withdraw and affirm the

judgment of sentence.

      On June 12, 2016, Lower Southhampton police officers attempted to

stop Appellant’s vehicle after observing his erratic driving. When the officers

made contact, Appellant fled from the police on foot.     After Appellant was

apprehended, the officers determined that Appellant was under the influence

of drugs to a degree that impaired his ability to safely drive.      Appellant


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72037-17



subsequently consented to blood testing which revealed his blood contained

Alprazolam (100 ng/mL), THC (1.3 ng/mL), and THC metabolite (19 ng/mL).

       As a result of the vehicle stop, the officers discovered that Appellant was

in possession of a stolen vehicle. In addition, the officers recovered other

stolen items in the vehicle, which allowed them to connect Appellant to the

nighttime burglaries of two separate residences, one of which was occupied

by a sleeping family at the time Appellant entered without permission.

       On October 17, 2016, Appellant entered a negotiated guilty plea to two

counts of burglary,1 two counts of theft by unlawful taking,2 and three counts

of Driving Under the Influence of a controlled substance (DUI).3              The

Commonwealth notified Appellant that it would seek the mandatory minimum

for a second-strike offense in accordance with 42 Pa.C.S.A. § 9714(a)(1) as

Appellant had a prior qualifying conviction for the burglary of an occupied

residence. Notably, Appellant was paroled in that matter on April 11, 2016,

and committed the instant offenses two months later on June 12, 2016.

       On February 3, 2017, the lower court imposed Appellant’s negotiated

sentence of ten to twenty years’ incarceration for Burglary – Overnight

Accommodation, Person Present as well as a concurrent sentence of seventy-


____________________________________________


1
  18 Pa.C.S.A. §§ 3502(a)(1) (Burglary – Overnight Accommodation, Person
Present), 3502(a)(2) (Burglary – Overnight Accommodation, Person Not
Present).
2
  18 Pa.C.S.A. § 3921(a)(1).
3
  75 Pa.C.S.A. §§ 3802(d)(1)(i), 3802(d)(1)(iii), 3802(d)(2).



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two hours to six months imprisonment for DUI under 75 Pa.C.S.A. §

3802(d)(2).4 Appellant did not file a post-sentence motion, but instead filed

this timely appeal.

       Appellant complied with the trial court’s direction to file a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b),

in which he argued that his negotiated sentence of ten to twenty years’

imprisonment for burglary under Pennsylvania’s habitual offender statute

constituted cruel and unusual punishment under the U.S. and Pennsylvania

Constitutions. Thereafter, Appellant’s counsel filed a motion to withdraw his

representation along with an Anders brief, conceding that after diligent

investigation of the grounds for appeal, he found this appeal to be frivolous.

       As an initial matter, we must first review counsel’s request to withdraw

before evaluating the merits of this appeal. Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen faced with

a purported Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw”).        An

attorney who seeks to withdraw on appeal must comply with the following

procedural requirements:

       Counsel must: 1) petition the court for leave to withdraw stating
       that, after making a conscientious examination of the record,
       counsel has determined that the appeal would be frivolous; 2)
       furnish a copy of the brief to the defendant; and 3) advise the
       defendant that he or she has the right to retain private counsel or
____________________________________________


4
  Appellant’s convictions in this case also served as direct and technical
violations of his probation and parole in other cases.

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      raise additional arguments that the defendant deems worthy of
      the court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court stated in Santiago

that an Anders 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.

Santiago, supra at 178-79, 978 A.2d at 361.

      On appeal, defense counsel filed an Anders brief in which he included

a request to withdraw his representation. In the brief, counsel avers that he

“has diligently investigated the possible grounds for appeal and finds that this

appeal is frivolous.” Anders brief at 19. Counsel forwarded a copy of the

Anders Brief to Appellant together with a letter explaining that while counsel

had requested to withdraw his representation, Appellant had his right to

proceed pro se or with new, privately-retained counsel to raise any additional

points or arguments that Appellant believed had merit. See id. at 15; see

also attached letter to Appellant.

      In the Anders brief, counsel provides a summary of the facts and

procedural history of the case with citations to the record, refers to evidence

of record that might arguably support the issue raised on appeal, provides

citation to relevant case law, and states his reasoning for his conclusion that


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this appeal is wholly frivolous. Accordingly, we find counsel has complied with

the technical requirements of Anders and Santiago. Appellant filed neither

a pro se brief nor a counseled brief with new, privately-retained counsel. We

proceed to examine the issue of arguable merit identified in the Anders Brief.

      Appellant wished to challenge his mandatory minimum sentence that

was imposed pursuant to Pennsylvania’s habitual offender statute at 42

Pa.C.S.A. § 9714, which provides in pertinent part:

      (1) Any person who is convicted in any court of this
      Commonwealth of a crime of violence shall, if at the time of the
      commission of the current offense the person had previously been
      convicted of a crime of violence, be sentenced to a minimum
      sentence of at least ten years of total confinement,
      notwithstanding any other provision of this title or other statute
      to the contrary. Upon a second conviction for a crime of violence,
      the court shall give the person oral and written notice of the
      penalties under this section for a third conviction for a crime of
      violence. Failure to provide such notice shall not render the
      offender ineligible to be sentenced under paragraph (2).

42 Pa.C.S.A. § 9714(a)(1). This statute provides that “[t]here shall be no

authority in any court to impose on an offender to which this section is

applicable any lesser sentence. 42 Pa.C.S.A. § 9714(e).

      More specifically, Appellant argued that the mandatory sentence

imposed for his second strike offense pursuant to Section 9714(a)(1) is

unconstitutional as cruel and unusual punishment under the United States and

Pennsylvania Constitutions. This Court has held that “a claim that a sentence

constitutes cruel and unusual punishment raises a question of the legality of

the sentence … and may be raised for the first time on appeal.”            See



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Commonwealth v. Lankford, 164 A.3d 1250, 1252 n.5 (Pa.Super. 2017)

(citing Commonwealth v. Brown, 71 A.3d 1009, 1016 (Pa.Super. 2013)).

Although Appellant agreed to this sentence as a part of his negotiated plea

agreement, we will not find his challenge on appeal to be waived.            See

Commonwealth v. Langston, 904 A.2d 917 (Pa.Super. 2008), abrogated

on other grounds by Commonwealth v. Holmes, 155 A.3d 69 (Pa.Super.

2017) (finding that “[w]here a defendant has agreed to an allegedly illegal

sentence [as part of a plea negotiation], he or she is not thereafter precluded

from raising the issue on appeal”).

      In evaluating a challenge to the constitutionality of a statute, we are

guided by the following standard:

      [a] presumption exists “[t]hat the General Assembly does not
      intend to violate the Constitution of the United States or of this
      Commonwealth” when promulgating legislation. 1 Pa.C.S. §
      1922(3). Duly enacted legislation is presumed valid, and unless it
      clearly, palpably and plainly violates the Constitution, it will not
      be declared unconstitutional. Commonwealth v. Davidson, 595
      Pa. 1, 938 A.2d 198, 207 (2007). Accordingly, the party
      challenging the constitutionality of a statute bears a heavy burden
      of persuasion. Id.

Commonwealth v. Baker, 621 Pa. 401, 411, 78 A.3d 1044, 1050 (2013).

      Our courts have recognized that the general purpose of recidivist

sentence laws is “to punish offenses more severely when the defendant has

exhibited an unwillingness to reform his miscreant ways and to conform his

life according to the law.” Commonwealth v. Shiffler, 583 Pa. 478, 494,

879 A.2d 185, 195 (2005).



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     Recidivist statutes, which have been adopted in all fifty states, are
     not inherently unconstitutional. The policy behind them is to
     punish more severely defendants who are repeat offenders.
     Recidivist statutes serve notice on defendants that if they continue
     their criminal behavior they will be dealt with more harshly by the
     law. By incapacitating habitual criminals, citizens are safeguarded
     from defendants' repeated criminal activity. Recidivist statutes
     have repeatedly been upheld against contentions that they violate
     constitutional limitations on cruel and unusual punishment.

Commonwealth v. Baker, 24 A.3d 1006, 1026 (Pa.Super. 2011), affirmed,

621 Pa. 401, 78 A.3d 1044 (2013) (quoting Commonwealth v. Parker, 718

A.2d 1266, 1268 (Pa.Super. 1998) (citing Parke v. Raley, 506 U.S. 20, 113

S.Ct. 517, 121 L.Ed.2d 391 (1992))).

     This Court has summarized both federal and Pennsylvania precedent

with respect to claims that a sentence constitutes cruel and unusual

punishment:

     Article 1, Section 13 of the Pennsylvania Constitution provides
     “[e]xcessive bail shall not be required, nor excessive fines
     imposed, nor cruel punishments inflicted.” P.A. Const. art. I, § 13.
     “[T]he guarantee against cruel punishment contained in the
     Pennsylvania Constitution, Article 1, Section 13, provides no
     broader protections against cruel and unusual punishment than
     those extended under the Eighth Amendment to the United States
     Constitution.” Commonwealth v. Spells, 417 Pa.Super. 233,
     612 A.2d 458, 461 (1992). The Eighth Amendment does not
     require strict proportionality between the crime committed and
     the sentence imposed; rather, it forbids only extreme sentences
     that are grossly disproportionate to the crime. See
     Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 209 (1997)
     (citing Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct.
     2680, 115 L.Ed.2d 836 (1991)) (emphasis added).

     In Commonwealth v. Spells, 417 Pa.Super. 233, 612 A.2d 458,
     462 (1992) (en banc), this Court applied the three-prong test for
     Eighth Amendment proportionality review set forth by the United



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      States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct.
      3001, 77 L.Ed.2d 637 (1983):

            [A] court's proportionality analysis under the Eighth
            Amendment should be guided by objective criteria,
            including (i) the gravity of the offense and the
            harshness of the penalty; (ii) the sentences imposed
            on other criminals in the same jurisdiction; and (iii)
            the sentences imposed for commission of the same
            crime in other jurisdictions.

      Spells, 612 A.2d at 462 (quoting Solem, 463 U.S. at 292, 103
      S.Ct. 3001). However, this Court is not obligated to reach the
      second and third prongs of the Spells test unless “a threshold
      comparison of the crime committed and the sentence imposed
      leads to an inference of gross disproportionality.” Spells, supra
      at 463 (citation omitted).

Lankford, 164 A.3d at 1252–53.

      In Baker, our Supreme Court rejected a constitutional challenge to the

recidivist sentencing provision in 42 Pa.C.S.A. § 9718.2, which provides

mandatory minimum sentencing for certain sexual offenders. The High Court

concluded that the threshold comparison of the gravity of the appellant’s

second conviction of possession of child pornography with the imposition of

the mandatory minimum sentence of twenty-five years pursuant to Section

9718.2 did not lead to an inference of gross disproportionality.     Baker, 621

Pa. at 415, 78 A.3d at 1052. As a result, the Supreme Court did not find it

necessary to discuss the remaining prongs of the proportionality review test

under the Eighth Amendment.

      In this case, Appellant was subject to this mandatory minimum sentence

under the habitual offender statute at 42 Pa.C.S.A. § 9714 as he pled guilty

to a crime of violence, more specifically, burglary as defined in 18 Pa.C.S.A. §


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3502(a)(1) (Burglary – Overnight Accommodation, Person Present). This was

Appellant’s second conviction of a crime of violence as he had previously been

convicted for the very same charge.

      When considering the gravity of the offense, we reiterate that Appellant

burglarized two residences during the evening of June 12, 2016, stealing

various pieces of property, including cash, wallets, purses, cameras, personal

documents, and a vehicle. The prosecution pursued the mandatory minimum

in this case as Appellant committed one of the burglaries on a home where a

family was present and sleeping. Appellant fails to recognize the danger posed

by his criminal conduct in breaking into a home in which its residents are

present. Although Appellant was able to ransack the home unbeknownst to

the sleeping victims, Appellant is fortunate that he did not encounter one of

the residents which could have led to violence and a tragic result.

      Moreover, the fact that Appellant committed these two burglaries just

two months after he was paroled on his prior conviction for burglarizing an

occupied home, demonstrates the appropriateness of heightened punishment

for a repeat offender as it showed Appellant’s “unwillingness to reform his

miscreant ways and to conform his life according to the law.” Shiffler, 879

A.2d at 1925.

      To determine whether an inference of gross proportionality is raised, we

compare the gravity of Appellant’s offense to his punishment, which was ten

to twenty years’ imprisonment. As Appellant was nearly twenty-one years old

at sentencing, he will be eligible for parole on at the expiration of his minimum

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sentence shortly after he turns thirty years old, giving him reasonable

opportunity to be released back into society for the remainder of his lifetime.

      For the foregoing reasons, we find that a threshold comparison of the

crime committed and the sentence imposed does not lead to an inference of

gross proportionality. See Spells, supra. Thus, we are not required to reach

the second and third prongs of the test for proportionality review under the

Eighth Amendment. Therefore, we conclude Appellant's sentence does not

offend the prohibition against cruel and unusual punishment in the Eighth

Amendment of the United States Constitution or Article 1, Section 13 of the

Pennsylvania Constitution.

      We have conducted an independent review of the issue identified by

counsel in his Anders brief and agree that it does not have arguable merit.

Appellant did not file a response to counsel’s Anders brief and request to

withdraw. Accordingly, we grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

      Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017



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