Com. v. Johnson, J. ( 2022 )


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  • J-S11013-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                           :
    :
    :
    JESSE JEROME JOHNSON                      :
    :
    Appellant              :   No. 1142 WDA 2021
    Appeal from the Judgment of Sentence Entered August 9, 2021
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0003299-2019
    COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                           :
    :
    :
    JESSIE JEROME JOHNSON                     :
    :
    Appellant              :   No. 1143 WDA 2021
    Appeal from the Judgment of Sentence Entered August 9, 2021
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0003296-2019
    BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
    MEMORANDUM BY PANELLA, P.J.:                            FILED: May 13, 2022
    Jessie Jerome Johnson appeals from the judgment of sentence following
    his guilty plea in two cases to burglary, intimidation of a witness/victim, rape,
    criminal trespass, retaliation against witness or victim, terroristic threats,
    simple assault, involuntary deviate sexual intercourse, and strangulation. In
    addition, Johnson’s counsel has filed a brief pursuant Anders v. California,
    J-S11013-22
    
    386 U.S. 738
     (1967), and a petition to withdraw from representation. We
    grant counsel’s petition to withdraw and affirm the judgment of sentence.
    On March 15, 2019, Johnson broke into the home of his ex-paramour
    and punched, strangled, and raped her. Subsequently, on March 18, 2019,
    police officers found Johnson hiding in his ex-paramour’s home armed with a
    knife. The police arrested Johnson, and the Commonwealth charged him with
    inter alia, rape, criminal trespass, retaliation against a witness or victim,
    terroristic threats, simple assault, involuntary deviate sexual intercourse, and
    strangulation at case number 2019-03296, and burglary and intimidation of a
    witness or victim at case number 2019-03299.
    On January 27, 2020, Johnson entered a negotiated guilty plea to the
    above crimes at his two cases in exchange for an aggregate sentence of 12 to
    24 years in prison. The trial court accepted the plea but imposed an aggregate
    sentence of 12 to 24 years in prison followed by 3 years of probation.
    Subsequently, Johnson filed a post-sentence motion to modify his sentence.
    The trial court held a hearing on the motion, after which it filed an amended
    sentencing order, imposing an aggregate sentence of 12 to 24 years in prison
    to comport with the negotiated plea agreement. Johnson filed another post-
    sentence motion, which the trial court denied. Johnson then filed separate
    notices of appeal from the two cases, and this Court consolidated the appeals.
    On appeal, Johnson’s counsel has filed an Anders Brief, raising the
    following question for our review:
    -2-
    J-S11013-22
    Is the total negotiated sentence of twelve to twenty-four years for
    burglary, intimidation of a witness/victim, rape, criminal trespass,
    retaliation against witness or victim, terroristic threats, simple
    assault, strangulation, and involuntary deviate sexual intercourse
    imposed upon [] Johnson by the lower court, pursuant to the
    terms     of   the   plea    agreement,     manifestly   excessive,
    unreasonable[,] and too severe a punishment?
    Anders Brief at 5 (some capitalization omitted). Johnson’s counsel also filed
    a petition to withdraw as counsel with this Court on January 10, 2022. Johnson
    filed neither a pro se brief, nor retained alternate counsel.
    We must first determine whether Johnson’s counsel has complied with
    the dictates of Anders in petitioning to withdraw from representation. See
    Commonwealth v. Goodwin, 
    928 A.2d 287
    , 290 (Pa. Super. 2007) (stating
    that “[w]hen 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.”). Pursuant to Anders, when an attorney believes that
    an appeal is frivolous and wishes to withdraw as counsel, he or she must
    (1) petition the court for leave to withdraw stating that after
    making a conscientious examination of the record and
    interviewing the defendant, counsel has determined the appeal
    would be frivolous; (2) file a brief referring to any issues in the
    record of arguable merit, and (3) furnish a copy of the brief to the
    defendant and advise him of his right to retain new counsel or
    raise any additional points he deems worthy of this Court’s
    attention.
    Commonwealth v. Burwell, 
    42 A.3d 1077
    , 1083 (Pa. Super. 2012)
    (citations omitted).
    Additionally, the Pennsylvania Supreme Court has determined that a
    proper Anders brief must
    -3-
    J-S11013-22
    (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.
    Commonwealth v. Santiago, 
    978 A.2d 349
    , 361 (Pa. 2009).
    Here, Johnson’s counsel has complied with the requirements set forth in
    Anders by indicating that she conscientiously examined the record and
    determined that an appeal would be frivolous. Further, Johnson’s counsel’s
    Anders Brief meets the standards set forth in Santiago, by setting forth her
    conclusion that the trial court did not abuse its discretion in imposing
    Johnson’s sentence, rendering Johnson’s appeal wholly frivolous. Finally,
    Johnson’s counsel provided a letter to Johnson, informing him of her intention
    to withdraw as counsel and advising Johnson of his rights to retain new
    counsel, proceed pro se, and file additional claims. Because Johnson’s counsel
    has complied with the procedural requirements for withdrawing from
    representation, we will independently review the record to determine whether
    Johnson’s appeal is, in fact, wholly frivolous. See Commonwealth v.
    Wrecks, 
    931 A.2d 717
    , 721 (Pa. Super. 2007) (stating that once an appellate
    court determines that counsel’s petition and brief satisfy Anders, the court
    must then conduct its own review of the appeal to determine if it is wholly
    frivolous).
    -4-
    J-S11013-22
    Johnson challenges the discretionary aspect of his sentence, claiming
    that the trial court abused its discretion in imposing a manifestly excessive
    aggregate sentence of 12 to 24 years in prison. See Anders Brief at 14-16.
    Here, Johnson entered a negotiated guilty plea which provided that he
    would plead guilty to the above crimes in exchange for an aggregate sentence
    of 12 to 24 years in prison. See N.T., 1/27/20, at 3. Because Johnson pleaded
    guilty and ultimately received the negotiated sentence, he is not entitled to
    discretionary review of his sentence. See Commonwealth v. O’Malley, 
    957 A.2d 1265
    , 1267 (Pa. Super. 2008) (stating that “an appellant who pleads
    guilty and receives a negotiated sentence may not then seek discretionary
    review of that sentence”). Accordingly, we may not review Johnson’s
    discretionary aspects of sentencing challenge and his claim is wholly frivolous.
    See 
    id.
    Having reviewed the issue raised in counsel’s Anders brief, and after
    conducting our own independent review of the record, which disclosed no
    additional non-frivolous issues that could be raised on appeal, we agree with
    counsel that the appeal is wholly frivolous. We therefore grant counsel’s
    petition to withdraw and affirm the judgment of sentence.
    Petition to withdraw granted. Judgment of sentence affirmed.
    -5-
    J-S11013-22
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/13/2022
    -6-
    

Document Info

Docket Number: 1142 WDA 2021

Judges: Panella, P.J.

Filed Date: 5/13/2022

Precedential Status: Non-Precedential

Modified Date: 12/13/2024