Com. v. Wolfram, J. ( 2017 )

J-S54017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN HOLLIN WOLFRAM
Appellant No. 10 WDA 2017
Appeal from the Judgment of Sentence December 16, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000839-2013
CP-25-CR-0002133-2013
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 13, 2017
Jonathan Hollin Wolfram appeals from the December 16, 2016
judgment of sentence entered in the Erie County Court of Common Pleas
following his revocation of probation. Wolfram’s appellate counsel has filed
an Anders1 brief and a petition to withdraw from representation. We affirm
and grant counsel’s petition to withdraw.
The trial court set forth the history of this case in its Pennsylvania Rule
of Appellate Procedure 1925(a) opinion, which we incorporate herein. See
Rule 1925(a) Opinion, 1/18/17, at 1-2 (“1925(a) Op.”).
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Anders v. California 386 U.S. 738 (1967).
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Because counsel has filed a petition to withdraw pursuant to Anders
and its Pennsylvania counterpart, Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), we must address counsel’s petition before reviewing the
merits of Wolfram’s underlying claim. Commonwealth v. Goodwin, 928
A.2d 287, 290 (Pa.Super. 2007). We first address whether counsel’s petition
to withdraw satisfies the procedural requirements of Anders. To be
permitted to withdraw, 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.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc).
Here, counsel has stated that after a conscientious examination of the
record, she believes this appeal would be wholly frivolous. Pet. to Withdraw,
6/1/17, at 1. Counsel furnished a copy of the Anders brief to Wolfram, as
well as a letter advising Wolfram that he could seek new counsel or proceed
pro se. We conclude that counsel’s petition to withdraw complies with the
procedural dictates of Anders.
We next address whether counsel’s Anders brief meets the
requirements established by the Pennsylvania Supreme Court in Santiago.
The brief must:
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(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’s brief provided a summary of the procedural history and the
facts with appropriate citations to the record. Anders Br. at 4-6. Counsel’s
brief states that she reviewed the record and determined that any appeal
would be frivolous, and set forth her reasons for that conclusion. Id. at 8-9.
Accordingly, counsel has substantially complied with the requirements of
Anders and Santiago.
Wolfram has not filed a pro se brief or a counseled brief with new,
privately-retained counsel. We, therefore, review the issue raised in the
Anders brief.
Wolfram raises the following issue: “Whether the sentence of the trial
court is manifestly excessive, unreasonable and inconsistent with the
objectives of the Sentencing Guidelines given the fact that the trial court did
not give consideration to mitigating factors presented to the court by
[Wolfram].” Anders Br. at 3.
Wolfram is raising a challenge to the discretionary aspects of his
sentence. “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Allen, 24
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A.3d 1058, 1064 (Pa.Super. 2011). Before we address such a challenge, we
determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]ppellant’s brief
includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the [S]entencing [C]ode.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Wolfram has timely appealed and has included a concise statement of
reasons relied upon for allowance of appeal in his brief. Wolfram, however,
did not preserve his issue in his post-sentence motion or at the time of
sentencing. See Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa.Super. 2012) (“Issues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings.”) (quotation
omitted). Wolfram has, therefore, waived his sentencing claim.
Further, Wolfram has failed to raise a substantial question for our
review. A substantial question exists where a defendant raises a “plausible
argument that the sentence violates a provision of the [S]entencing [C]ode
or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013)
(quotation omitted). Additionally, “this Court has held on numerous
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occasions that a claim of inadequate consideration of mitigating factors does
not raise a substantial question for our review.” Commonwealth v.
Caldwell, 117 A.3d 763, 769 (Pa.Super.) (quoting Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa.Super. 2013)), app. denied, 126 A.3d 1282(Pa. 2015). Therefore, Wolfram’s claim that the trial court did not properly
consider mitigating factors does not raise a substantial question for our
review. See id.Even if Wolfram had preserved his issue and raised a substantial
question, we would conclude it lacks merit. In its Rule 1925(a) opinion, the
trial court applied the relevant law and concluded that there were substantial
reasons for the sentence imposed and that it considered the mitigating
factors presented via post-sentence letters. We agree with, and adopt, the
well-reasoned opinion of the Honorable William R. Cunningham. See
1925(a) Op. at 3-9. Further, at the revocation hearing, the trial court stated
that it read the revocation summary and the pre-sentence report,2 listened
to the evidence presented, and explained the concerns it had in regards to
Wolfram.
____________________________________________
2
“Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).
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Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/1027
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Circulated 10/04/2017 10:47 AM