J-S25020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL JEROME IRBY, JR.                   :
                                               :
                       Appellant               :   No. 1306 WDA 2017

              Appeal from the Judgment of Sentence July 18, 2017
               In the Court of Common Pleas of Clearfield County
              Criminal Division at No(s): CP-17-CR-0000718-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.:                         FILED SEPTEMBER 07, 2018

        Michael Jerome Irby, Jr., appeals from the judgment of sentence

entered in the Clearfield County Court of Common Pleas. Irby asserts the trial

court abused its discretion in fashioning his sentence. Additionally, his court-

appointed counsel, Steven M. Johnston, Esquire, seeks permission from this

Court to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

deny Attorney Johnston permission to withdraw, vacate Irby’s judgment of

sentence in part, and remand for resentencing on the robbery conviction.

        A recitation of the complete factual and procedural history of this matter

is unnecessary to our disposition. Briefly, on May 8, 2017, Irby pleaded guilty

to robbery and terroristic threats.1 On July 18, 2017, the trial court sentenced

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1   18 Pa.C.S.A. §§ 3701(a)(1)(iv) and 2706(a)(1), respectively.
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Irby to sixteen months to five years’ imprisonment for robbery and twelve

months to two years’ imprisonment for terroristic threats. These sentences

were set to run concurrently.

      Irby filed a post-sentence motion challenging the discretionary aspects

of his sentence. The court denied Irby’s motion. This timely appeal follows.

      Prior to addressing the merits of Irby’s requested appeal, we must

examine Attorney Johnston’s request to withdraw. Attorney Johnston has

substantially complied with the mandated procedure for withdrawing as

counsel. See Santiago, 978 A.2d at 361 (articulating Anders requirements);

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing

that counsel must inform client by letter of rights to proceed once counsel

moves to withdraw and append a copy of the letter to the petition). Irby did

filed a response to the motion to withdraw in the form of a pro se brief.

      As counsel has met his technical obligation to withdraw, we must now

“make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.”

Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015)

(citation omitted). See also Commonwealth v. Tukhi, 149 A.3d 881, 886

(Pa. Super. 2016) (providing that if counsel’s petition and brief satisfy

Anders, counsel will be permitted to withdraw if the appeal is wholly frivolous;

however if there are non-frivolous issues, the petition to withdraw will be

denied).




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      Counsel has identified three issues Irby believes entitles him to relief.

The trial court abused its discretion by (1) improperly considering the use of

a handgun when sentencing in the aggravated range; (2) imposing a harsher

sentence on Irby than his co-defendant; and (3) failing to consider mitigating

evidence. These three issues raise challenges to the discretionary aspects of

sentencing.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate under
      the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

      Here, Attorney Johnston has partially complied by preserving Irby’s

claims in a post-sentence motion and filing a timely notice of appeal. However,

Attorney Johnston has failed to include a statement of reasons for allowance

of appeal pursuant to Pa.R.A.P. 2119(f) in the Anders’ Brief.


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       Ordinarily, we would find these sentencing claims waived. See

Commonwealth v. Kiesel, 854 A.2d 530, 532-533 (Pa. Super. 2004)

(finding challenge to discretionary aspect waived for failure to include a Rule

2119(f) statement). However, in the context of Attorney Johnston’s petition

to withdraw, we must address Irby’s challenges. See Commonwealth v.

Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating that where counsel files

an Anders brief, this Court will review discretionary aspects of sentencing

claims that were not otherwise preserved). Therefore, we must determine if

any of Irby’s claims raise substantial questions for our review.

       We cannot review Irby’s claim that the trial court failed to consider

mitigating factors, because it does not raise a substantial question. See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en

banc) (holding claim that sentencing court failed to adequately consider

certain mitigating factors does not raise a substantial question). Thus, this

claim fails.2 However, both of Irby’s remaining challenges—that the trial court

abused its discretion by considering an impermissible factor and by imposing

a harsher sentence on him than on his co-defendant—raise substantial

questions for our review. See Commonwealth v. Shugars, 895 A.2d 1270,


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2 Both the trial court and Commonwealth claim Irby waived this claim by failing
to raise any concerns about mitigating evidence with the trial court in the first
instance. See Trial Court Opinion, 11/7/17, at 5; Commonwealth’s Brief, at
10. While we agree this would constitute waiver, we have chosen to resolve
this claim on a different basis. See Pa.R.A.P. 302(a) (“[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on appeal”).

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1274-1275 (Pa. Super. 2006) (finding substantial question where appellant

argued trial court relied on impermissible factors as reason for increasing the

sentence); Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super.

2010) (concluding that an appellant raises a substantial question when he

avers an unexplained disparity between his sentence and his co-defendant’s

sentence).

      The standard of review with respect to sentencing is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Shugars, 895 A.2d at 1275 (citation omitted).

      Moving to Irby’s first claim, he claims the trial court impermissibly relied

on the fact that he utilized a gun in the robbery in fashioning a sentence in

the aggravated range. See Anders’ Brief, at 6 ¶ I, 11; Pro Se Brief, at 6 ¶ I,

11-13. Irby argues that because he did not plead guilty to a crime with the

utilization of a handgun as an element, the trial court cannot consider this

fact. See Pro Se Brief, at 11-13.

      “When imposing a sentence, the sentencing court must consider the

factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public,

gravity of an offense in relation to impact on victim and community, and

rehabilitative needs of the defendant….” Commonwealth v. Fullin, 892 A.2d



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843, 847 (Pa. Super. 2006) (citation omitted). Furthermore, “[a] trial court

judge has wide discretion in sentencing and can, on the appropriate record

and for the appropriate reasons, consider any legal factor in imposing a

sentence in the aggravated range.” Commonwealth v. Stewart, 867 A.2d

589, 593 (Pa. Super. 2005) (citation omitted). However, “[i]t is impermissible

for a court to consider factors already included within the sentencing

guidelines as the sole reason for increasing or decreasing a sentence to the

aggravated or mitigated range.” Commonwealth v. Simpson, 839 A.2d 334,

339 (Pa. Super. 2003) (citation omitted).

      Here, as Irby correctly notes, he pleaded guilty to robbery and the

deadly weapon sentence enhancement was not utilized. Therefore, the use of

a gun to threaten the life of the victim was not taken into consideration in

calculating the standard guideline range of six to fourteen months

imprisonment. See 204 Pa. Code. § 303.16(a). Basic Sentencing Matrix. 7th

Edition Amendment 3 (9/25/15). Despite Irby’s foundationless claim, it is

precisely because this was not included within the guidelines that the trial

court would be well within its discretion in using this as the sole factor in

aggravating Irby’s sentence. See Stewart, 867 A.2d at 593. However, our

review of the record reveals that the trial court did not solely utilize this fact

in imposing sentence. Instead, the trial court imposed an aggravated range




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sentence3 due to the use of the handgun and his actions as the principal in

the robbery. See N.T., Sentencing, 6/18/17, at 11-13. Therefore, we cannot

find that the trial court abused its discretion.

       Next, Irby claims that the trial court abused its discretion by imposing a

harsher sentence on him than on his co-defendant. See Anders’ Brief, at 6 ¶

II, 11; Pro Se Brief, 6 ¶ II, 14-17. In Pennsylvania,

       co-defendants are not required to receive identical sentences.
       Generally a sentencing court must indicate the reasons for
       differences in sentences between co-defendants. This is not to
       say, however, that the court must specifically refer to the
       sentence of a co-defendant. Rather, it requires that when there is
       a disparity between co-defendants’ sentences, a sentencing court
       must give reasons particular to each defendant explaining why
       they received their individual sentences.

Mastromarino, 2 A.3d at 589 (citation and quotation marks omitted).

       Here, the trial court placed the sentence of Irby’s co-defendant on the

record and noted that the Commonwealth had requested a lesser sentence

due to her cooperation with them. See N.T., Sentencing, 7/18/17, at 10.

Additionally, the trial court noted that Irby was the principal actor in this

robbery, and, unlike his co-defendant, was the one in possession of a

handgun. See id., at 12. Therefore, the trial court concluded that Irby should

receive a harsher sentence than his co-defendant. See id., at 14. As the trial


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3 It is clear from the record that the trial court did not intend to impose an
aggravated range sentence, but imposed a sentence based upon inaccurate
sentencing guidelines. See N.T., Sentencing, 6/18/17, at 11. We discuss this
issue later in the memorandum.

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court clearly placed its reasoning for differentiating between the co-

defendants, we cannot find that the trial court abused its discretion.

       We turn next to the claims raised by Irby in his pro se brief. While Irby’s

brief is somewhat convoluted, he appears to raise two additional claims:4 that

the trial court violated his right to equal protection by imposing a harsher

sentence on him than on his co-defendant and that 18 Pa.C.S.A. § 1103 is

unconstitutional. See Pro Se Brief, at 6, 15-19.

       Moving to Irby’s first claim, our courts have consistently held that where

support is found in the record to justify the different treatment between co-

defendants, there is no denial of equal protection. See Commonwealth v.

Parry, 452 A.2d 781, 783 (Pa. Super. 1982) (citation omitted). As noted

above, we found that the trial court sufficiently described its reasoning for

imposing different sentences on Irby and co-defendant. Therefore, Irby’s

claim of an equal protection violation, fails.

       Additionally, we find no merit to Irby’s claim that 18 Pa.C.S.A. § 1103

is unconstitutional. Irby claims that this statute, which describes the

maximum sentences allowable under the law, is unconstitutional because it

allows judges unfettered discretion in sentencing up to that point. See Pro Se

Brief, at 19. However, this contention utterly ignores the comprehensive


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4 Irby, in fact, raises five issues in his pro se appellate brief. However, three
of these issues simply mirror the issues raised by appellate counsel. Therefore,
as we have already addressed these issues, we need not address them again.


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system of statutes and guidelines that have been put into place to do precisely

what Irby claims does not happen in Pennsylvania: monitor a trial court’s use

of their discretion in sentencing. Therefore, as this is Irby’s only rationale

behind his belief that § 1103 is unconstitutional, this issue fails as well.

      We agree with counsel that the issues raised herein are frivolous.

However, our independent review of the record reveals a glaring non-frivolous

issue counsel failed to raise: whether Irby should be entitled to resentencing

due to the trial court’s reliance on incorrect sentencing guidelines.

      All parties agree that the trial court sentenced Irby to sixteen months to

five years’ imprisonment for robbery pursuant to its belief that the standard

range sentence for robbery was six to sixteen months. However, the standard

sentencing guidelines range for this sentence is actually six to fourteen

months. See 204 Pa. Code. § 303.16(a). Basic Sentencing Matrix. 7th Edition

Amendment 3 (09/25/15). While counsel notes that the trial court utilized the

incorrect guidelines, he fails to recognize the implications of the court’s

mistake.

      Based on our review of the record, we cannot conclude that the issue

set forth above is wholly meritless. Therefore, we cannot allow counsel to

withdraw.

      While we would typically remand this matter for counsel to file an

advocate’s brief, the error here is so readily apparent that a remand for this

purpose would be pointless. The trial court clearly misapprehended the


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applicable guidelines. See N.T., Sentencing, 7/18/17, at 11 (“You had

indicated you believe that your standard range is 6 to 14 …. I have a

calculation here by the probation office that your standard range is 6 to 16

months”). Due to this misapprehension, the trial court accidently imposed an

aggravated range sentence. See id., at 14 (“So I don’t have any reason to

aggravate it, so I’m stuck with that guideline range…”). This act alone, readily

apparent from the record, requires a resentencing for Irby’s robbery

sentencing. See Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.

1999) (providing that generally, this Court will vacate a sentence based on an

incorrect or absent guideline recitation upon a showing that the trial court was

guided in its sentencing decision by a material misapprehension of the

applicable sentencing guideline range). Therefore, in the interests of judicial

economy, we vacate Irby’s robbery sentence and remand for resentencing.5

       Convictions affirmed. Judgment of sentence affirmed in part and vacated

in part. Petition to withdraw as counsel denied. Case remanded for

resentencing. Jurisdiction relinquished.



Judgment Entered.




____________________________________________


5We need not vacate the judgment of sentence in its entirety, as we have not
upset the sentencing scheme. As mentioned, the trial court ordered Irby’s
sentence for terroristic threats to run concurrent to the robbery sentence.


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Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2018




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