Com. v. Arose, J. ( 2017 )

J-S35026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN PATRICK AROSE
Appellant No. 1726 WDA 2016
Appeal from the Judgment of Sentence September 22, 2014
in the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000590-2007
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN PATRICK AROSE
Appellant No. 1727 WDA 2016
Appeal from the Judgment of Sentence September 22, 2014
in the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000591-2007
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN PATRICK AROSE
Appellant No. 1728 WDA 2016
Appeal from the Judgment of Sentence September 22, 2014
J-S35026-17
in the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000139-2014
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED JULY 26, 2017
Appellant, John Patrick Arose, appeals from the judgment of sentence
entered September 22, 2014, which was imposed after the revocation of
Appellant’s probation on the above dockets.1 Additionally, Appellant’s
counsel, George Daghir, Esq., seeks to withdraw his representation of
Appellant pursuant to Anders v. California, 87 S. Ct. 1936 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and
grant counsel’s petition to withdraw.
In September 2008, at docket number CP-33-CR-0000590-2007,
Appellant pleaded guilty to one count of manufacture of a controlled
substance2 and was sentenced to five years of restricted intermediate
punishment. This sentence was to include three months in jail and six
months on electronic monitoring. That same day, at docket number CP-33-
CR-0000591-2007, Appellant pleaded guilty to possession with intent to
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
As will be discussed further herein, Appellant’s post-sentence and appellate
rights were reinstated following the filing of a timely petition seeking
collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546.
2
35 P.S. § 780-113(a)(30).
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deliver a controlled substance3 and received a sentence of three years of
probation, concurrent to the sentence at the previous docket.
In January 2009, Appellant violated his intermediate punishment and
was sentenced to an additional thirty days in jail with drug treatment. In
February 2011, Appellant received new criminal charges, and a previous
sentence of intermediate punishment, at CP-33-CR-0000170-2006, was
revoked. Appellant was sentenced to a term of three to seven years of
incarceration. At CP-33-CR-0000590-2007, Appellant’s intermediate
punishment was revoked, and he received a sentence of three years of
probation consecutive to the sentence at CP-33-CR-170-2006. At CP-33-
0000591-2007, Appellant’s probation was revoked, and he received a
sentence of three years of probation consecutive to the sentence at CP-33-
0000590-2007.
In June 2014, Appellant entered a negotiated guilty plea to one count
of possession of drug paraphernalia4 at CP-33-CR-0000139-2014 and
sentenced to one year of probation. While on probation, Appellant was
again convicted of new, drug-related charges, for which he received a three-
to twelve-month county sentence, with a consecutive one year of probation.
As a result of the above, on September 22, 2014, Appellant was re-
sentenced at dockets CP-33-CR-0000590-2007, CP-33-CR-0000591-2007,
____________________________________________
3
35 P.S. § 780-113(a)(30).
4
35 P.S. § 780-113(a)(32).
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and CP-33-CR-0000139-2014. He received an aggregate sentence of five
and one-half to eleven years of state incarceration. Appellant filed a motion
for reconsideration on October 22, 2014, which the court denied. Appellant
timely appealed, and this Court affirmed his judgment of sentence, as
Appellant had not preserved his discretionary sentencing challenge in a
timely post-sentence motion. See Commonwealth v. Arose, 122 A.3d
1144 (Pa. Super. 2015) (unpublished memorandum). The panel also
granted counsel’s motion to withdraw pursuant to Anders. Id.In May 2016, Appellant pro se timely filed a petition seeking PCRA
relief. Counsel was appointed and filed an amended petition on Appellant’s
behalf. Following an evidentiary hearing, the trial court denied the claims
raised pro se in Appellant’s PCRA petition but reinstated Appellant’s post-
sentence and appellate rights.
On October 20, 2016, Appellant filed a motion to modify his
September 22, 2014 sentences. The trial court denied the motion.
Appellant timely appealed. Instead of filing a statement of errors
complained of on Appellant’s behalf, counsel filed a notice of intent to file an
Anders brief.
When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on
direct appeal under Anders, counsel must file a brief that meets the
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requirements established by the Pennsylvania Supreme Court in Santiago,
namely:
(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) 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.
Santiago, 978 A.2d at 361.
Counsel also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his right to: “(1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points
that the appellant deems worthy of the court[’]s attention in
addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, only then may this Court “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In the instant matter, Attorney Daghir’s Anders brief complies with
the above-stated requirements. Namely, he includes a summary of the
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relevant factual and procedural history; he refers to the portions of the
record that could arguably support Appellant’s claims; and he sets forth his
conclusion that Appellant’s appeal is frivolous. He explains his reasoning
and supports his rationale with citations to the record as well as pertinent
legal authority. Attorney Daghir avers he has supplied Appellant with a copy
of his Anders brief and a letter explaining the rights enumerated in
Nischan. Accordingly, counsel has complied with the technical
requirements for withdrawal. Thus, we may independently review the record
to determine if the issues Appellant raises are frivolous and to ascertain if
there are other non-frivolous issues he may pursue on appeal.
The sole issue counsel potentially raises on Appellant’s behalf is a
challenge to the discretionary aspects of his sentence. See Appellant’s Brief
at 10-14. A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal. See Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.
2119(f). This Court conducts a four-part analysis to determine: (1) whether
Appellant has timely filed a notice of appeal; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider and modify
sentence; (3) whether Appellant’s brief has a fatal defect; and (4) whether
there is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
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Appellant timely filed a notice of appeal, preserved his issues in a
motion for reconsideration, has provided this Court with the requisite notice
to Appellant, and has included in his brief a statement pursuant to Pa.R.A.P.
2119(f). See Appellant’s Brief at 9. The statement contends that the
sentence was unreasonably excessive, an abuse of discretion, and
constituted too severe a punishment. Id.A claim that a sentence is manifestly excessive many raise a
substantial question if Appellant’s Pa.R.A.P. 2119(f) statement sufficiently
articulates the manner in which the sentence was inconsistent with the Code
or contrary to its norms. Commonwealth v. Mouzon, 812 A.2d 617, 627-
28 (Pa. 2002). Appellant does not identify a specific provision of the Code
with which the sentence was inconsistent. Thus, we cannot conclude, based
on the record, that the sentencing court in any way imposed a harsh and
excessive sentence that was disproportionate to the underlying violations
and circumstances. See Commonwealth v. Kalichak, 943 A.2d 285, 292
(Pa. Super. 2008) (noting that a claim a sentence was harsh and excessive
based on personal circumstances is meritless where the court takes into
account but rejects personal circumstances as a mitigating factor, and places
its reasons for the sentencing on the record).
In short, we agree with Attorney Daghir that Appellant’s issue is
frivolous. We have independently reviewed the record and find no other
issues of arguable merit that he could pursue on appeal. Accordingly, we
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affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw.
Petition to withdraw granted. Judgment of sentence affirmed.
Judge Lazarus joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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