Com. v. Clarke, K.
460 MDA 2017
| Pa. Super. Ct. | Oct 23, 2017Background
- Kevin Anthony Clarke pled guilty in 2014 to criminal trespass and terroristic threats and was sentenced to under two years’ incarceration followed by seven years’ probation.
- After release, Clarke incurred a new arrest/conviction (related docket CP-06-CR-0003249-2014), admitting probation violations at a Gagnon II hearing.
- At revocation/resentencing, the trial court (following Commonwealth recommendation) imposed concurrent aggregate sentences of 1 to 3 years’ incarceration on the relevant counts.
- Clarke filed a timely post-sentence motion, which was denied; he appealed and counsel filed an Anders brief and petition to withdraw.
- Counsel argued the sole arguably meritorious issue: the sentence was excessive and the court failed to properly account for remorse and rehabilitative needs.
- The Superior Court reviewed counsel’s Anders submission, conducted an independent review of the record, and affirmed the judgment of sentence and granted counsel’s petition to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1–3 year concurrent sentences after probation revocation were manifestly excessive / violated Sentencing Code norms | Commonwealth: sentence appropriate given revocation, criminal history, and need to vindicate court authority | Clarke: court failed to properly weigh remorse and rehabilitative needs; sentence excessive | Court: No. Clarke’s claim is frivolous; sentencing court acted within discretion and articulated reasons on the record |
| Whether the trial court failed to comply with statutory requirements for resentencing after probation revocation (i.e., state reasons on the record) | Clarke: trial court did not sufficiently state reasons under 42 Pa.C.S. § 9721(b) | Commonwealth: court provided adequate reasons and relied on PSI and allocution | Court: Court’s brief on-the-record explanation was sufficient; record shows consideration of factors |
| Whether appellate counsel complied with Anders technical requirements for withdrawal | Clarke: (no response filed) | Counsel: filed Anders brief and petition asserting appeal frivolous and listed possible issue | Court: Counsel substantially complied with Anders; independent review required and performed |
| Whether there is a substantial question to invoke discretionary-review jurisdiction | Clarke: asserts inadequacy of sentencing consideration raises substantial question | Commonwealth: preservation and procedural requirements satisfied but no substantial question on merits | Court: Procedural prerequisites met, but claim did not raise a substantial question because it merely asked the court to re-weigh factors |
Key Cases Cited
- Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (standards for Anders withdrawal and counsel obligations)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (requirements for Anders brief content)
- Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 2015) (appellate court’s duty to independently review Anders submissions)
- Commonwealth v. Ferguson, 893 A.2d 735 (Pa. Super. 2006) (scope of review for sentencing after probation revocation)
- Commonwealth v. Colon, 102 A.3d 1033 (Pa. Super. 2014) (requirements for stating reasons when resentencing after probation revocation)
- Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014) (factors to invoke review of discretionary aspects of sentence)
- Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009) (appellate court will not re-weigh sentencing factors)
- Commonwealth v. Boyer, 856 A.2d 149 (Pa. Super. 2004) (presumption that court considered PSI)
- Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005) (scope of review after probation revocation is limited to validity of revocation and legality of sentence)