Com. v. Avery, B.
76 MDA 2017
| Pa. Super. Ct. | Nov 20, 2017Background
- Between Aug. 2015 and Feb. 2016 Avery participated in multiple crimes: a violent home-invasion robbery (guns, victims bound), a robbery/altercation at Custom Computers, and a retail theft of frozen lobster tails valued over $300.
- Avery pled guilty in Sept. 2016 to multiple counts arising from the home invasion (first-degree burglary, multiple first-degree robbery counts, conspiracy) and to robbery/conspiracy and retail theft counts arising from the other incidents.
- On Dec. 2, 2016 the court imposed an aggregate sentence of 5.5 to 11 years imprisonment plus four years of probation, with several sentences ordered consecutively.
- Avery filed post-sentence motions (denied) and a timely appeal; appellate counsel filed an Anders/Santiago brief and petition to withdraw, and Avery did not respond.
- The Superior Court reviewed counsel’s compliance with Anders/Santiago and the procedural requirements for appellate withdrawal, and independently reviewed the record for non-frivolous issues.
Issues
| Issue | Appellant's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in sentencing (high-end of guideline range and consecutive terms) | Sentence was excessive: high-end of standard range and consecutive sentences produced an excessive aggregate term | Court properly considered PSI, statutory factors, victim impact, and permissibly imposed standard-range and consecutive sentences | No abuse of discretion; appellant failed to raise a substantial question; sentence affirmed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (standard for appointed counsel seeking withdrawal on appeal)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (requirements for Anders brief in Pennsylvania)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (procedural/briefing obligations for counsel seeking withdrawal)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (four-part test for discretionary-sentencing appeals)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (consecutive-vs-concurrent sentence challenges ordinarily do not present a substantial question)
- Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (consecutive standard-range sentences may present a substantial question where application of guidelines is clearly unreasonable)
- Commonwealth v. Zeigler, 112 A.3d 656 (Pa. Super. 2015) (affirming standard-range sentence where court considered PSI and explained reasons)