Com. v. Sanches, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAFAEL R. SANCHES, JR., :
:
Appellant : No. 855 WDA 2014
Appeal from the Judgment of Sentence Entered April 15, 2014,
In the Court of Common Pleas of Erie County,
Criminal Division, at No. CP-25-CR-0001914-2013.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 17, 2015
Appellant, Rafael R. Sanches, Jr., appeals from the judgment of
sentence entered on April 15, 2014, in the Court of Common Pleas of Erie
County. Appellant’s counsel has filed a petition seeking to withdraw her
representation and a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which
govern a withdrawal from representation on direct appeal. Appellant has not
filed a response to counsel’s petition. After careful review, we grant
counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.
The trial court summarized the factual and procedural history of this
case as follows:
On or about March 22, 2013, a Confidential Informant
(“CI”) provided information to the City of Erie police that there
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was going to be a delivery of 10.6 pounds of marijuana to the
CI’s home at 823 Washington Place in Erie later that same day.
According to the CI, Appellant and a co-conspirator, Ricardo
Melendez-Angulo, were to deliver the marijuana. Appellant
would be driving a blue Chevrolet Impala.
The police set up surveillance and observed Appellant drive
a blue Impala to the rear of the CI’s residence. Ricardo
Melendez-Angulo, who owned the vehicle, was in the passenger
seat.
The vehicle was seized and towed to the Erie Police
Department. A search warrant was obtained and the vehicle was
searched with the aid of a drug-sniffing dog. In the trunk of the
vehicle, the police found a garbage bag containing a box of
sandwich bags, a box of one-gallon zip-lock bags, a digital scale
and eleven one-gallon bags each containing approximately ten
and one-half pounds of marijuana, with a street value of
$24,600 to $49,208.
Appellant was charged with one count each of Criminal
Conspiracy (to commit Possession with Intent to Deliver
Marijuana); Possession with Intent to Deliver; Possession of a
Controlled Substance; Possession of Drug Paraphernalia; and
Criminal Use of Communication Facility (use of cell phone to
arrange a drug delivery).1 Criminal Information, July 23, 2013.
1
18 Pa.C.S.A. §903/35 P.S. §780-113(a)(30); 35
P.S. §780-113(a)(30); 35 P.S. §780-113(a)(16); 35
P.S. §780(a)(32); and 18 Pa.C.S.A. §7512(a),
respectively. It is noted the original sentencing
Order erroneously listed Count 1 as Possession with
Intent to Deliver. The sentencing Order was
corrected to reflect Count 1 is Criminal Conspiracy
(to commit Possession with Intent to Deliver).
On September 9, 2013, Appellant filed a Petition for Writ of
Habeas Corpus alleging the Commonwealth did not establish a
prima facie case as all relevant information the police received
was from the CI who did not testify at the preliminary hearing.
The only Commonwealth witnesses were two police officers
whose testimony was based solely on hearsay. After a hearing
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on October 1, 2013, Judge Connelly denied the Petition for Writ
of Habeas Corpus by Order dated October 4, 2013.
Appellant filed an Omnibus Motion for Pretrial Relief
seeking to suppress the evidence. After a hearing, Judge
Connelly denied the motion to suppress the evidence by Opinion
and Order dated November 26, 2013.
Appellant and the Commonwealth entered into a
negotiated plea agreement[1] whereby Appellant would plead
guilty to all five counts. In return, the Commonwealth would
reduce the weight of the marijuana to 9.9 pounds for sentencing
and waive the mandatory minimum at Count Two, Possession
with Intent to Deliver. Appellant pled guilty to the five counts on
January 15, 2014. Appellant was sentenced on April 15, 2014 as
follows:
Count One: 15 to 30 months of incarceration
concurrent with Docket Numbers
1271/1272 of 1998 (Lehigh
County);
Count Two: 15 to 30 months of incarceration
consecutive to Count One;
Count Three: Merged with Count 2;
Count Four: 12 months of probation concurrent
with Count 5; and
Count Five: 36 months of probation
consecutive to Count 2.
On April 23, [2014], Appellant filed a Motion to
Modify/Reconsider Sentence seeking to have the sentence at
Count Two imposed concurrently rather than consecutively. The
1
We note that Appellant has not waived his right to appeal the discretionary
aspect of his sentence raised on appeal because Appellant has not
challenged an aspect of his sentence that was agreed upon during the
negotiation process. Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa.
Super. 1994).
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Motion to Modify was denied by Order on April 23, 2014.
Appellant [pro se] timely filed a Notice of Appeal on May 22,
2014, and a Concise Statement of Matters/Errors Complained of
on Appeal on June 3, 2014.
Trial Court Opinion, 7/3/14, at 1-3.
On appeal, this Court remanded the matter to the trial court for
appointment of appellate counsel. Commonwealth v. Sanches, 855 WDA
2014, A.3d (Pa. Super., filed February 18, 2015) (unpublished
memorandum at 7). Counsel was directed to file a Pa.R.A.P. 1925(b)
statement on Appellant’s behalf. Id. The trial court was directed to file an
opinion pursuant to Pa.R.A.P. 1925(a), and the parties were directed to file
briefs. Id.
Counsel was appointed and timely filed a Pa.R.A.P. 1925(b) statement
on April 2, 2015. On April 7, 2015, the trial court entered an order stating
that because the sole issue raised in the Pa.R.A.P. 1925(b) statement had
been addressed by the trial court’s opinion dated and filed July 3, 2014,
there was no need for an additional opinion. The record reflects that counsel
filed a brief on June 26, 2015, and on June 30, 2015, filed an application to
withdraw as counsel. The Commonwealth filed a letter entered July 30,
2015, indicating its position that a response was not necessary and declining
to file a responsive brief in this matter.
As noted, counsel has filed a petition to withdraw from representation.
Before we address the questions raised on appeal, we first must resolve
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appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and
briefing requirements imposed upon an attorney who seeks to withdraw on
appeal. The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within her petition
to withdraw, counsel averred that she conducted a conscientious
examination of the record. Following that review, counsel concluded that
the present appeal is wholly frivolous. Counsel sent Appellant a copy of the
Anders brief and petition to withdraw, as well as a letter, a copy of which is
attached to the petition to withdraw. In the letter, counsel advised Appellant
that he could represent himself or that he could retain private counsel to
represent him.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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
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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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. It sets forth the history of
this case, outlines pertinent case authority, and cites to the record. Further,
the brief sets forth counsel’s conclusion that the appeal is frivolous, and
counsel’s reasons for that conclusion. We thus conclude that the procedural
and briefing requirements for withdrawal have been met.
Accordingly, we address the following issue raised in the Anders brief:
Whether the appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Sentencing Code?
Appellant’s Brief at 3.
Appellant argues that the trial court abused its discretion in imposing
the sentence in this case. Specifically, Appellant contends that the sentence
imposed was harsh and excessive in light of the factors which should have
been considered by the sentencing court. Thus, counsel is purporting to
present a challenge to the discretionary aspects of Appellant’s sentence.
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be
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considered to be a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct 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
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, 42 Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we
reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d
790 (Pa. Super. 1995), wherein this Court observed that, although
Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions
as optional, the rule expressly provides that only issues raised in the trial
court will be deemed preserved for appellate review. Id. at 692. Applying
this principle, the Reeves Court held that an objection to a discretionary
aspect of a sentence is waived if not raised in a post-sentence motion or
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during the sentencing proceedings. Id.; see also Commonwealth v.
Parker, 847 A.2d 745, 752 (Pa. Super. 2004) (holding challenge to
discretionary aspect of sentence was waived because appellant did not
object at sentencing hearing or file post-sentence motion).
Initially, we conclude that the first requirement of the four-part test is
met because Appellant brought this direct appeal in a timely manner
following the imposition of sentence. However, our review of the record
reflects that Appellant did not meet the second requirement because he did
not raise his current challenge in a post-sentence motion2 or at the time of
sentencing. Therefore, we are constrained to conclude that Appellant’s issue
is waived, and we are precluded from addressing the merits of this issue on
appeal.
We also have independently reviewed the record in order to determine
whether there are any non-frivolous issues present in this case.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having
concluded that there are no meritorious issues, we grant Appellant’s counsel
permission to withdraw, and affirm the judgment of sentence.
2
While Appellant filed a timely motion to modify/reconsider sentence, in that
motion Appellant failed to raise the issue presented on appeal. In fact, the
relevant paragraph provides as follows: “Undersigned counsel believes that
the sentence rendered by the Court in this matter was fair and just.
However, undersigned counsel is respectfully requesting that the Court to
[sic] reconsider the [Appellant’s] sentence and modify it to run counts 1 and
2 concurrent as opposed to consecutive.” Motion to Modify/Reconsider
Sentence, 4/23/14, at ¶ 7.
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Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2015
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