J-S64043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

PATRICK ADAM HUEY

                           Appellant                   No. 514 MDA 2017


         Appeal from the Judgment of Sentence February 6, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
                        CP-40-CR-0004610-2015

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 25, 2017

        Appellant, Patrick Adam Huey, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas.            His attorney,

Matthew P. Kelly, Esq. (“Counsel”), has filed an Anders1 petition for leave to

withdraw. Counsel identifies the following issue on appeal: (1) whether the

trial court abused its discretion in sentencing Appellant. We grant Counsel’s

petition to withdraw and affirm.

        The trial court summarized the facts and procedural posture of this

case as follows:

              This matter comes before the [c]ourt pursuant to
           [Appellant’s] appeal from the judgment of sentence

*   Former Justice specially assigned to the Superior Court.
1   Anders v. California, 386 U.S. 738 (1967).
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         entered in this matter on February 6, 2017. Post sentence
         motions were filed on February 13, 2017,[2] and denied on
         that same day. [Appellant] filed a notice of appeal on
         March 13, 2017.       Thereafter the trial court ordered
         [Appellant] to file a statement pursuant to Pennsylvania
         Rule of Appellate Procedure (Pa.R.A.P.) 1925(b).
         [Appellant] sought an extension of time to file his 1925(b)
         statement which was granted. New defense counsel was
         appointed and a 1925(b) statement was filed on May 26,
         2017.    The Commonwealth responded to [Appellant’s]
         1925(b), on June 7, 2017.

            The following facts are derived from the record:
         [Appellant] was an inmate at the State Correctional
         Institute at Retreat. He had entered the cell of the victim,
         Benjamin Martinez, and struck him twice over the head
         with a sock full of batteries. Following the initial assault,
         he then stabbed the victim behind the ear with an ink pen
         and then left the victim’s cell.

         . . . On September 26, 2016 [Appellant] pled guilty [to]
         Simple Assault, graded as a misdemeanor of the second
         degree (M2). Thereafter on February 6, 2017, [Appellant]
         was sentenced as follows:

            On Criminal Information 4610 of 2015, Count 2,
            Simple [A]ssault, graded as a misdemeanor of the
            second degree (M2); offense gravity score three (3)
            and prior record score of a repeat felon (RFEL),
            [Appellant] was sentenced to a period of
            incarceration of not less than twelve (12) months nor
            more than twenty-four (24) months, followed by one
            (1) year probation.

Trial Ct. Op., 6/23/17, at 1-2.




2 Appellant’s post-sentence motion sought a one-day reduction of his
minimum sentence and a two-day reduction of his maximum sentence in
order to permit him to serve time in a county facility. Appellant raised no
other issues.



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        Counsel identifies the following issue in the Anders brief: “Whether

the trial court abused its discretion in sentencing appellant.” Anders Brief

at 1.

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

the merits of any possible underlying issues without first examining

counsel’s request to withdraw.”     Commonwealth v. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008).

          Prior to withdrawing as counsel on a direct appeal under
          Anders, counsel must file a brief that meets the
          requirements established by our Supreme Court in
          [Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)].
          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.

          Santiago, 978 A.2d at 361. Counsel also must provide a
          copy of the Anders brief to his client. Attending the brief
          must be a letter that advises the client of his 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.”




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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(some citations omitted).3

      If counsel complies with these requirements, “we will make a full

examination of the     proceedings in     the   lower   court and render   an

independent judgment [as to] whether the appeal is in fact ‘frivolous.’” Id.

at 882 n.7 (citation omitted).

      Instantly, Counsel provided a factual summary of the case with

citations to the record. Anders Brief at 4. Counsel explained the relevant

law, discussed why Appellant’s claim is meritless, and noted that he found

nothing in the record that could arguably support the appeal. Id. at 6-7. In

conclusion, Counsel’s Anders brief stated: “Therefore, upon review of case

law, the Sentencing Code and the record above, undersigned counsel is of

the opinion that the above issue has no merit and is wholly frivolous.” Id. at

7.

      Counsel also provided Appellant with a copy of the Anders brief and a

letter advising Appellant of his rights.4 Counsel’s Mot. to Withdraw, 8/16/17.


3 Our Supreme Court in Santiago “emphasized the difference between an
Anders brief, which offers an issue for a court’s consideration, but reflects
counsel’s candid assessment of the complete lack of merit in his client’s
case, and a merits brief, which implies that an issue is worthy of review and
has some chance of succeeding.” Santiago, 978 A.2d at 359-60.

4We note that Counsel’s petition misstated that should this Court grant the
petition to withdraw, Appellant could then proceed pro se or with the
assistance of privately retained counsel. See Commonwealth v. Muzzy,
141 A.3d 509, 511-512 (Pa. Super. 2016). However, in his letter to



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In light of the foregoing, we hold Counsel has substantially complied with the

requirements of Santiago.       See Orellana, 86 A.3d at 879-80.     Appellant

has not filed a pro se or counseled brief.   We now examine the record to

determine whether the issue on appeal is wholly frivolous. See id. at 882

n.7.

       In the Anders brief, “Appellant is alleging that in issuing said

sentence, the trial court abused its discretion in refusing to issue a county

sentence and to permit him to serve it at the Luzerne County Correctional

Facility.” Anders Brief at 6.

Appellant accompanying the Anders brief and petition to withdraw, Counsel
correctly stated that Appellant was free to hire private counsel, or proceed
pro se and file his own brief.

Moreover, we note that the scope of the issues preserved for appeal in this
case is limited because there is no dispute that the trial had jurisdiction,
Appellant’s sentence was legal, and the sole issue raised in Appellant’s post-
sentence motion was whether Appellant was entitled to a county sentence.
See Commonwealth v. Stewart, 867 A.2d 589, 591 (Pa. Super. 2005) (“A
plea of guilty forecloses challenges to all matters except the voluntariness of
the plea, the jurisdiction of the court, or the legality of the sentence[; but]
an appellant may challenge the discretionary aspects of sentence in these
circumstances, so long as there is no plea agreement as to the terms of the
sentence” (citations omitted)); see also Commonwealth v. Lincoln, 72
A.3d 606, 609-10 (Pa. Super. 2013) (“A defendant wishing to challenge the
voluntariness of a guilty plea on direct appeal must either object during the
plea colloquy or file a motion to withdraw the plea within ten days of
sentencing” (citation omitted)); Commonwealth v. Mann, 820 A.2d 788,
794 (Pa. Super. 2003) (“issues challenging the discretionary aspects of
sentencing must be raised in a post-sentence motion or by raising the claim
during the sentencing proceedings” (citation omitted)).

Because Counsel’s letter correctly apprised Appellant of his rights in this
appeal and there is a single issue preserved for review, we will proceed to
address the Anders brief.



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        Our review is governed by the following principles:

           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.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation

omitted).

        In Commonwealth v. Brown, 982 A.2d 1017 (Pa. Super. 2009), this

Court opined: “Because the plea agreement did not include a provision

specifying the type of facility in which Petitioner would be held, that matter

was implicitly left to the court’s discretion and, as such, Petitioner has not

waived the right to seek a discretionary appeal on that point.” Id. at 1019-

20. This Court noted:

           Defendants sentenced to maximum terms of less than two
           years are committed to county facilities while defendants
           with maximum terms of two years or more are normally
           housed in state facilities. See 42 Pa.C.S.A. § 9762.[5]


5   Section 9762 provides, in pertinent part, as follows::

           (b) Sentences or terms of incarceration imposed
           after a certain date.──All persons sentenced three or
           more years after the effective date of this subsection to
           total or partial confinement shall be committed as follows:

                                 *    *     *




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         Thus, there is usually a correlation between the length and
         location of a sentence. Nevertheless, a maximum term of
         two years or more but less than five years may, depending
         on the circumstances of the particular case, lead to
         incarceration in a county, rather than a state, prison. Id.

Id. at 1019 n.1.

            [L]ittle if any guidance exists to aid the trial court in
            exercising its discretion with respect to determining the
            place for confinement under 42 Pa.C.S.A. § 9762(2).
            While a convicted individual has no constitutional or
            other inherent right to serve his imprisonment in any
            particular institution or type of institution, a court
            should consider the differences between the state and
            county prison environment in choosing to sentence an
            individual to a state rather than a county facility. In
            Commonwealth v. Ward, [ ] 489 A.2d 809, 812 ([Pa.
            Super.] 1985), we recognized:

              The policy behind requiring that         a person
              sentenced to simple imprisonment         serve the

            (2) Maximum terms of two years or more but less than
            five years shall be committed to the Department of
            Corrections for confinement, except upon a finding of all
            of the following:

              (i) The chief administrator of the county prison, or
              the administrator's designee, has certified that the
              county prison is available for the commitment of
              persons sentenced to maximum terms of two or more
              years but less than five years.

              (ii) The attorney for the Commonwealth has
              consented to the confinement of the person in the
              county prison.

              (iii) The sentencing court has approved the
              confinement of the person in the county prison within
              the jurisdiction of the court.

42 Pa.C.S. § 9762(b)(2)(i)-(iii).



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              sentence in a county jail and not a state
              penitentiary recognizes that such a person, who is
              rarely in trouble, should not be subjected to
              imprisonment with persons guilty of serious
              misdemeanors or felonies.

         Stalnaker, 545 A.2d [886, 889 (Pa. Super. 1988)]
         (citation omitted).

         [T]he trial court’s decision to commit [the a]ppellant to a
         state correctional institution rather than a county facility
         did not constitute an abuse of discretion. The sentencing
         proceedings reveals that the trial court thoroughly
         considered and balanced the factors enumerated in the
         Sentencing Code, as well as considered a pre-sentence
         report, in determining that a state correctional facility was
         the appropriate place for Appellant to serve his sentence.

Fullin, 892 A.2d at 852.

      At sentencing, the court asked the Commonwealth if it had read

Appellant’s version of the incident.    N.T., 2/6/17, at 5.   The court stated

Appellant’s

         version indicates that Bennie Martinez pushed up on me,
         talking trash and insinuated himself in my business as
         gang bangers try to do so often. Then I found out some
         ridiculous hit was put on my head for a reason I was never
         clear on. He was supposed to carry out the hit but
         someone tipped me off. And I went and saw the big, bad,
         tough gang banger first and did my best to bash his head
         in. After that didn’t have the desired effect, I ended up
         stabbing him with a pen. Then I left and went about my
         business.

            Then he goes on to discuss his─that he’s not in a gang.
         He’s clean cut compared to the person that he beat and
         then stabbed with a pen when it didn’t have the desired
         effect. And that’s his version.

                                 *      *    *



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        And then you have in your relevant comments that you’re
        an angry person and that you have the tendency to go on
        the defensive or start to attack mode when cocky
        youngsters seem not to see me as a threat.

        [Appellant:] Yeah, it’s been like that all my life, though.
        It’s like people try to do ill things toward me because I
        don’t know what it is they see when they look at me. It’s
        just─it’s like─it’s hard to explain. It’s like a moth being
        drawn to a flame. It’s like people seem to want to start
        trouble with me all the time. I don’t know why that is but
        it’s just how it’s been most of my life. I don’t know if they
        see me as some kind of a passive person or I don’t have
        no idea.

        The Court: And what was the sentence that you were
        serving? Was it the assault by prisoner in 2000─when you
        pled guilty in ’09 and were sentenced to 40 to 80 months?

        [Appellant:] That’s correct. Guy threatened me in the
        county jail and we got into it. It was Carbon County.

        The Court: So people just tend to threaten you?

        [Appellant:] Not really. Not all the time. It’s just that,
        like, if they see they can get away with something with me
        they’ll become more aggressive and more aggressive until
        it’s like they want to fight me for apparently no reason at
        all. It’s just hard to explain.

                                 *    *    *

        The Court: . . . His last assault of a prisoner landed him a
        40 to 80 month sentence because it was a felony. . . .

Id. at 6, 8-10. Prior to imposing sentence, the court stated: “I’ve accepted

your guilty plea in this matter as knowingly and voluntarily entered.            I

reviewed   the   presentence   investigation,   noting   the   position   of   the

Commonwealth, the arguments of defense counsel and the statements of

[Appellant].” Id. at 9-10.


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     The trial court opined:

           Here, the Sentencing Court has clearly and expressly
        complied with the requirements of 42 Pa.C.S. § 9721(b) by
        imposing a sentence [“]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.”
        Id. . . . .

           The complaint makes no claim that his sentence was
        excessive, but funnels down to [Appellant’s] wish to serve
        his sentence in the Luzerne County Correctional Facility
        instead of a state facility. Accordingly, no meritorious
        issues for appeal exist with regard to [Appellant’s] alleged
        matters complained of on appeal.

Trial Ct. Op. at 6.   We discern no abuse of discretion in the trial court’s

decision to commit Appellant to a state correctional institution and agree

with Counsel that this claim is frivolous. See Fullin, 892 A.2d at 852.

     Our independent review of the record reveals no other issues of

arguable merit. See Orellana, 86 A.3d at 882 n.7. Accordingly, we grant

counsel’s petition for leave to withdraw and affirm the judgment of sentence.

     Counsel’s petition for leave to withdraw granted.          Judgment of

sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/2017




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