J-S27008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY FIGUEROA                           :
                                               :
                       Appellant               :   No. 1959 EDA 2017

              Appeal from the Judgment of Sentence May 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002676-2014,
              CP-51-CR-0004149-2012, CP-51-CR-0005488-2014


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 21, 2018

       Anthony Figueroa appeals from the judgment of sentence, imposed in

the Court of Common Pleas of Philadelphia County, following the revocation

of his probation at multiple bills. Counsel has moved to withdraw pursuant to

Anders and Santiago.1 Upon review, we affirm and grant counsel’s petition

to withdraw.

       On July 2, 2012, Figueroa was convicted, in a nonjury trial before the

Honorable Charles E. Ehrlich, of three violations of the Uniform Firearms Act




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1 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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(“2012 case”).2       On August 27, 2012, Judge Ehrlich sentenced him to an

aggregate sentence of 11½ to 23 months’ imprisonment, followed by a 5-year

probationary term. This Court affirmed Figueroa’s judgment of sentence, and

discretionary review was not sought.

        While the 2012 case was pending on direct review, Figueroa was

arrested on July 24, 2013, and charged with possession of a controlled

substance3 (“PWID”) and conspiracy4 (“2013 case”). On December 23, 2013,

Figueroa appeared before Judge Ehrlich for a violation of probation hearing

with respect to the 2012 case.           Judge Ehrlich ordered that probation be

continued, directed Figueroa to enroll in school, and ordered him to seek and

maintain employment.

        On April 22, 2014, Figueroa was again arrested and charged with PWID

(“2014 case”). On May 28, 2014, Figueroa appeared before Judge Ehrlich on

the 2013 case and pled guilty to PWID and conspiracy. Judge Ehrlich imposed

an aggregate, negotiated sentence of 11½ to 23 months’ imprisonment,

followed by 3 years’ probation.         Figueroa did not appeal this judgment of

sentence. On that same date, Figueroa also pled guilty before Judge Ehrlich



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2Figueroa was convicted of carrying a firearm without a license, 18 Pa.C.S.A.
§ 6106; carrying a firearm in Philadelphia, 18 Pa.C.S.A. § 6108; and
possession of a firearm by a prohibited person, 18 Pa.C.S.A. § 6105.

3   35 P.S. § 780-113(a)(30).

4   18 Pa.C.S.A. § 903.

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to PWID in conjunction with the 2014 case. Judge Ehrlich again imposed a

negotiated sentence of 11½ to 23 months’ imprisonment, followed by 3 years

of probation.   Also on that date, Judge Ehrlich held a probation violation

hearing with regard to the 2012 case, after which Figueroa was found to be in

violation. His probation was revoked as to the 2012 case, and Judge Ehrlich

imposed a sentence of 11½ to 23 months’ imprisonment, followed by 3 years’

probation, to be served concurrently to the sentences imposed in the 2013

and 2014 cases.

      On September 6, 2016, Figueroa was once again arrested and charged

with PWID (“2016 case”). On May 8, 2017, he appeared before the Honorable

Stephanie Sawyer and pled guilty. Sentencing was deferred.

      On May 25, 2017, Figueroa again appeared before Judge Ehrlich,

charged with violating his probation in the 2012, 2013 and 2014 cases. During

that hearing, Judge Ehrlich stated the following:

      THE COURT: What I don't understand is when I first sentenced
      you – I’m going back to my original notes -- I think the sentence
      I gave you originally was time in to 23 months. You told me you
      had a job with your uncle doing landscaping, going to get your
      GED, and I talked to you about the issues with the juvenile
      supervision. I think Judge Rebstock had to issue a bench warrant
      for you. You went to Glen Mills, from what I remember, and the
      DA was asking for 1½ to 3 years.

      Then comes another possession with intent to deliver case in
      2013, and I resentenced you and kept you in county. Then
      another one in 2014.

      So what I don't understand is: I think people, as Mr. Mincarelli
      says, can benefit from programs, can benefit from being in the
      county prison, a little bit closer supervision and contact with the
      judge. But this is the third time you’ve been back before me on a

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     violation, and it’s the same thing. You were dealing drugs. That’s
     what it is.
                                      ...

     THE COURT: Also possession with the intent to deliver. What I
     had you on originally was a gun case, a constructive possession
     case, violation of the Uniform Firearms Act.

     So what I don't understand is this: We went through this in 2013,
     in 2014, and now we’re in 2016 and 2017. What is it that you
     didn’t get before?

     I can understand maybe Glen Mills didn’t impress you or whatever
     it was. But I would have thought when you first came in front of
     me and saw the DA asking for 1½ to 3, you might see that we
     were in a different ballgame here, a different place. And then
     comes the other things, so it seems like nothing will stop the drug
     dealing.

     I understand why you’re doing it. You’re doing it for money. It’s
     why most people do. The problem is it puts poison in the
     community. That’s the problem.

     I understand sometimes people do it and then they stop. But you
     had -- this is your fifth PWID, if I'm correct. Two as a juvenile
     and three as an adult, right?

     MS. ROSARIO: Yes.

     THE COURT: I mean, is there something I’m not aware of, Mr.
     Figueroa?

     THE DEFENDANT: I was -- I was doing what I was supposed to do
     at first. But I was out there working. I was doing what I was
     doing. I got my job again. If I go home now, I go straight home
     and go straight to work. I got my uncle that got me my job.

     THE COURT: You told me this before. You were going to go into
     landscaping with your uncle.

     THE DEFENDANT: I got pay stubs and everything, my income tax.

     THE COURT: Then why are you dealing drugs? Why is this the
     fifth drug dealing conviction if you have a job and you have people
     helping you and pay stubs and everything else? You’re paying
     fines and costs, but you're out there drug dealing. You know, at
     some point it sort of has to stop.


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       What was negotiated with Judge Sawyer?

       MR. MINCARELLI: 11½ to 23 plus, I believe, 3 or 4 years. I forget.

       MS. ROSARIO: I think it was actually like 3 to 23 or something
       like that, like a time-in sentence. I spoke with the DA on that case
       who indicated it was a weak case and that was the reason for
       making that offer, and because he had these VOPs in front of Your
       Honor.

       THE COURT: Look, I don't know what’s going to stop it, and I try
       to give people chances, but when we’re on the fifth PWID, I have
       to look at things differently than I did when were [sic] in 2013 and
       2014.

N.T. Resentencing, 5/25/17, at 9-13.

       After the hearing, Judge Ehrlich found Figueroa to be in violation of his

probation and revoked him on all three cases. The court sentenced Figueroa

to an aggregate of 30 to 60 months’ incarceration, followed by 5 years’

probation. Figueroa filed timely post-sentence motions, which were not ruled

upon,5 followed by a timely notice of appeal. On June 30, 2017, counsel filed

a notice of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

       In order to withdraw pursuant to Anders, counsel must: (1) petition

the Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; (2)



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5  Pursuant to Pa.R.Crim.P. 708(E), the filing of a motion to modify sentence
imposed after a revocation of probation will not toll the 30-day appeal period,
unless the trial court expressly grants reconsideration. See Pa.R.Crim.P. 708,
Comment. Thus, because the deadline to appeal was to expire on or about
June 24, 2017 and Judge Ehrlich had not yet ruled upon Figueroa’s timely-
filed motion to modify, counsel filed a notice of appeal on June 20, 2017 in
order to preserve Figueroa’s appellate rights.

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file a brief referring to anything in the record that might arguably support an

appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief raising any additional

points that the appellant deems worthy of review.          Commonwealth v.

Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), the Pennsylvania Supreme Court held

that, in order to withdraw under Anders, counsel must also state his reasons

for concluding his client’s appeal is frivolous.

       Instantly, counsel’s petition states that he has made an examination of

the record and concluded the appeal is wholly frivolous. Counsel indicates

that he supplied Figueroa with a copy of the brief and a letter explaining his

right to proceed pro se, or with privately-retained counsel, and to raise any

other issues he believes might have merit.6 Counsel has also submitted a

brief, setting out the single issue raised by Figueroa and, pursuant to the

dictates of Santiago, explains in his petition to withdraw why he believes the

appeal to be frivolous.       Thus, counsel has substantially complied with the

requirements for withdrawal.

       Counsel having satisfied the procedural requirements for withdrawal,

this Court must conduct its own review of the proceedings and render an




____________________________________________


6Figueroa has not submitted any additional or supplemental filings to this
Court.

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independent judgment as to whether the appeal is, in fact, wholly frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

      Figueroa claims that his sentence was manifestly excessive. This claim

raises a challenge to the discretionary aspects of sentencing. Such a claim

does not entitle an appellant to review as a matter of right. Commonwealth

v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather, before this Court

can address such a challenge, an appellant must comply with the following

requirements:

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

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

      Here, Figueroa filed a post-sentence motion to modify sentence, filed a

timely appeal, and includes in his brief a statement of reasons in support of

allowance of appeal pursuant to Pa.R.A.P. 2119(f). Figueroa having complied

with the procedural requirements, we must now determine if he has raised a

substantial question for our review.

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists “only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent


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      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015), quoting

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal

citations omitted).

      In his Rule 2119(f) statement, Figueroa asserts that his sentence was

excessive and that the trial court abused its discretion by failing to order a

pre-sentence investigation (“PSI”) report prior to imposing sentence. We have

previously held that a court’s failure to order a PSI upon resentencing raises

a substantial question. See Commonwealth v. Carrillo-Diaz, 64 A.3d 722,

724 (Pa. Super. 2013). Accordingly, we will review the merits of Figueroa’s

claim.

      We begin by noting that trial courts enjoy broad discretion with respect

to sentencing. Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). The

court’s sentence will not be disturbed absent a manifest abuse of discretion.

“An abuse of discretion is more than just an error in judgment and, on appeal,

the trial court will not be found to have abused its discretion unless the record

discloses that the judgment exercised was manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will.” Commonwealth v. Smith, 673

A.2d 893, 895 (Pa. 1996), citing Commonwealth v. Lane, 424 A.2d 1325,

1328 (Pa. 1981).

      Under Pennsylvania's Sentencing Code, a trial court must “follow the

general principle that the sentence imposed should call for confinement that



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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.A. § 9721(b).

      The Pennsylvania Rules of Criminal Procedure vest a sentencing judge

with the discretion to order a PSI as an aid in imposing an individualized

sentence. Specifically, Rule 702 provides, in relevant part, the following:

      702. Aids in Imposing Sentence

      (A) Pre-sentence Investigation Report

         (1) The sentencing judge may, in the judge’s discretion,
         order a pre-sentence investigation report in any case.

         (2) The sentencing judge shall place on the record the
         reasons for dispensing with the pre-sentence investigation
         report if the judge fails to order a pre-sentence report in any
         of the following instances:

            (a) when incarceration for one year or more is a
            possible disposition under the applicable sentencing
            statutes[.]

Pa.R.Crim.P. 702(A). We have previously held that a sentencing judge must

either order a PSI report or conduct sufficient presentence inquiry such that,

at a minimum, the court is apprised of the particular circumstances of the

offense, not limited to those of record, as well as the defendant’s personal

history and background. Commonwealth v. Goggins, 748 A.2d 721, 728

(Pa. Super. 2000) (en banc). Although Rule 702(A)(2) requires the court to

document the reasons for not ordering a pre-sentence report, this Court has

held that sentencing courts have some latitude in how this requirement is

fulfilled. Specifically, “technical noncompliance with the requirements of Rule

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702(A)(2) might have been rendered harmless had the court elicited sufficient

information during the colloquy to substitute for a PSI report, thereby allowing

a fully informed sentencing decision[.]” Commonwealth v. Flowers, 950

A.2d 330, 333 (Pa. Super. 2008).

        Here, the sentencing court did not state its reasons for dispensing with

a PSI.     However, the record demonstrates that Judge Ehrlich was well-

acquainted with Figueroa and his circumstances.        Figueroa first appeared

before Judge Ehrlich in 2012, when he was convicted of three VUFA charges.

Prior to sentencing in that case, Judge Ehrlich ordered a PSI. Over the ensuing

five years, Figueroa appeared before Judge Ehrlich three additional times as

a result of probationary violations. By the May 2017 resentencing hearing,

Judge Ehrlich was very familiar with Figueroa and his extensive criminal

history, noting that Figueroa had five convictions for PWID and that all

attempts to rehabilitate him had failed. In addition, the record reflects that a

Gagnon II7 hearing summary was prepared for Judge Ehrlich prior to

Figueroa’s resentencing, reflecting his most recent violations, a supervision

summary, and a sentencing recommendation from the department of

probation.    In sum, we conclude that the trial court possessed more than

sufficient information about Figueroa’s history and circumstances to enable it

to arrive at a fully informed, individualized sentencing decision.


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7   Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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       Moreover, given Figueroa’s recidivism and apparent inability to

rehabilitate, the court was within its discretion to impose the instant sentence

that is, in any event, far below the statutory maximum.8 The court believed

that Figueroa was in need of programming only available in a state institution.

As the court noted:

       I hope the state will focus you differently. I hope when you get
       out, you’ll be different; otherwise, you’ll wind up back in front of
       other judges and you’ll end up spending a good part of your life in
       jail.

       Whatever keeps bringing you to this -- whether it’s job training,
       counseling -- I don’t know what it is. You’ve been through the
       juvenile system, in county prison, all the other programs.
       Hopefully this will focus you.

N.T. Resentencing, 5/5/17, at 14.

       Accordingly, we can discern no abuse of discretion on the part of the

trial court in imposing its sentence. Figueroa is entitled to no relief.

       Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18


____________________________________________


8The maximum penalty for PWID is a term of not more than 15 years, or 180
months. See 35 P.S. § 780-113(f)(1). Figueroa received an aggregate term
of imprisonment of 30 to 60 months.

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