Com. v. Newman, B. ( 2014 )

J-S51044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BARBARA L. NEWMAN, :
:
Appellant : No. 1766 MDA 2013
Appeal from the Judgment of Sentence entered on September 5, 2013
in the Court of Common Pleas of Lycoming County,
Criminal Division, No. CP-41-CR-0001976-2012
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014
sentence imposed following the revocation of her probation. Kathryn E.
Withdraw as Counsel and an accompanying brief pursuant to Anders v.
California
The trial court has set forth the relevant history as follows:
Under Information 1976-2012, [Newman] was charged
with dr
incapable of safely driving and then refusing a chemical test of
her blood, driving when her operating privilege was suspended
as a result of a previous DUI, and several other summary
offenses as a result of an incident on August 8, 2012, where she
portion of Route 864 that was under construction. At the time
[that Newman] committed these offenses, she was under
probation supervision for simple assault, a misdemeanor of the
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second degree, and trespass, a misdemeanor of the third
degree[1], in case 1261-2011.
[Newman] failed to appear for a status conference and a bench
warrant was issued for her arrest. [Newman] fled to Missouri,
but was arrested and extradited back to Pennsylvania.
On August 8, 2013, [Newman] entered a no contest plea to DUI-
incapable (refusal) and [driving while operating privilege is
-DUI related. On September 5, 2013, the
court sentenced [Newman] to pay a $1,500 fine and to serve six
months under the Intermediate Punishment Program with the
first 90 days to be served at the pre-release center for DUI. In
addition, the court sentenced [Newman] to 60 days of
incarceration and a $500 fine for DUS-DUI related.
September 5, 2013. The court found that [Newman] violated
her probation by absconding from supervision and committing a
and sentenced her to a term of 3 to 6 months of incarceration to
be served consecutively to her sentence in case 1976-2012.
Trial Court Opinion, 9/5/13, at 1-2 (footnote added).
counsel, Bellfy, has filed a brief pursuant to Anders that raises the following
issuing a sentence that is manifestly excessive or in excess of the plea
led a separate Petition to
withdraw as counsel with this Court on April 28, 2014. Newman filed neither
a pro se brief, nor retained alternate counsel for this appeal.
Anders brief, this Court
may not review the merits of the underlying issues without first passing on
1
18 Pa.C.S.A. §§ 2701(a), 3503(b)(1)(i)
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Commonwealth v. Edwards, 906 A.2d 1225,
1227 (Pa. Super. 2006) (citation, brackets, and quotation marks omitted).
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel
has determined the appeal would be frivolous;
(2) file a brief referring to any issues that might arguably
support the appeal, but which does not resemble a no-
merit letter; and
(3) furnish a copy of the brief to the defendant and advise him
of his right to retain new counsel, proceed pro se, or raise
any additional point
attention.
Commonwealth v. Curry, 931 A.2d 700, 701 (Pa. Super. 2007) (citation
omitted). In Commonwealth v. Santiago, 978 A.3d 349 (Pa. 2009), our
Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and set forth the following requirements for
Anders briefs:
(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)
and
(4)
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.
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Santiago Anders]
ment as to whether
Edwards, 906 A.2d at 1228(citation omitted).
Here, we conclude that Bellfy has substantially complied with each of
the requirements of Anders. See Commonwealth v. Wrecks, 934 A.2d
1287, 1290 (Pa. Super. 2007) (stating that counsel needs to substantially
comply with the requirements of Anders). Bellfy indicates that she has
conscientiously examined the record and determined that an appeal would
be frivolous. The record contains a copy of the letter that Bellfy sent to
Newman, advising her of her rights to proceed pro se or retain alternate
permission to withdraw. Bellfy has complied with the procedural
requirements for withdrawing from representation. Therefore, we shall
proceed to an independent evaluation of the record to determine whether
this appeal is wholly frivolous.
Here, Newman challenges the discretionary aspects of her sentence.
ionary aspects of sentencing do not entitle an
Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
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[this Court conducts] a four part analysis to determine: (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 ef
has a fatal defect, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by- Commonwealth v.
Titus
to establish a substantial question, the appellant must show actions by the
sentencing court inconsistent with the Sentencing Code or contrary to the
Id.Here, Newman filed a timely Notice of Appeal, but did not preserve the
issue at sentencing or in a post-sentence motion. Nevertheless, because we
are required to undertake an independent review of the record, we will
Newman presents, in her Rule 2119(f) statement, only a bald
allegation of excessiveness and does not raise any challenge as to a violation
of the Sentencing Code or a particular fundamental norm underlying the
sentencing process. See Brief for Appelant at 7; see also Commonwealth
v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (stating we cannot
look beyond the statement of questions presented and 2119(f) concise
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statement to determine whether a substantial question exists). Therefore,
for our review. See Titus, 816 A.2d at 255-56 (stating that bald claim of
excessiveness does not raise a substantial question). Moreover, our
independent examination of the record has convinced us that there are no
other sentencing claims, not advanced by Bellfy, that would raise a
substan See id. at
256.2
Based on our independent review of the record, we conclude that this
Petition to Withdraw as Counsel granted; judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
2
We also note that at the sentencing hearing, the court noted that it
believed that a three to six month sentence was lenient in light of the
violations Newman had committed while on supervision. N.T., 9/5/13, at
12.
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