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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                    -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, 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

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)).



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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J-S46020-14


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




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

                         Issues raised before or during trial shall be deemed

preserved for appeal whether or not the defendant elects to file a post-



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

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

where cla

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

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

                                                     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



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

colloquy sufficiently set forth Gat

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

basis for his plea.
                                                                                    6



When the discretionary aspects of a sentence7 are questioned, an appeal is not

____________________________________________


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,

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


                                                                       t be
restricted from raising discretionary aspect of sentencing claims on appeal.
See Dalberto
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

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



                                                                    presented.

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



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



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




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



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



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 sentenc



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                                               -20



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



by   both   crimes   making    counts   superfluous)   with   Fiascki,   supra



were 23 individual theft victims).

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



separating one crime into nine counts and (2) several of the counts should




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                      8



       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

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




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