Com. v. Fosburg, J. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH FOSBURG, : No. 1631 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, May 3, 2016,
in the Court of Common Pleas of Erie County
Criminal Division at Nos. CP-25-CR-0000353-2016,
CP-25-CR-0000484-2016
BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2018
Appellant, Joseph Fosburg, appeals from the May 3, 2016 judgment of
sentence following his conviction of possession of drug paraphernalia and
access device fraud.1 The trial court appointed William J. Hathaway, Esq., as
appellant’s counsel for the instant appeal. Attorney Hathaway has filed a
petition to withdraw, alleging that the appeal is frivolous, accompanied by an
Anders brief.2 We will grant counsel’s withdrawal petition and affirm the
judgment of sentence.
1 35 P.S. § 780-113(a)(32) and 18 Pa.C.S.A. § 4106(a), respectively.
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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On May 3, 2016, appellant pleaded guilty to possession of drug
paraphernalia and access device fraud. Immediately upon accepting
appellant’s plea, the trial court sentenced appellant to one to six months’
imprisonment, followed by two years’ probation. Appellant did not file any
post-sentence motions, nor did he file a direct appeal. On April 17, 2017,
appellant filed a pro se petition pursuant to the Post Conviction Relief Act3
(“PCRA”). The trial court appointed Attorney Hathaway as appellant’s
counsel on April 26, 2017, and Attorney Hathaway filed a supplement to
appellant’s PCRA petition on June 8, 2017. The trial court granted in part
and denied in part appellant’s PCRA petition on October 12, 2017,
reinstating appellant’s direct appeal rights nunc pro tunc. Appellant filed a
notice of appeal with this court on November 1, 2017.
The trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on November 6,
2017. In lieu of a concise statement, Attorney Hathaway filed a statement
of intent to file an Anders brief on November 30, 2017. The trial court filed
an opinion pursuant to Pa.R.A.P. 1925(a) on December 7, 2017.
On February 12, 2018, Attorney Hathaway filed in this court a motion
to withdraw as counsel and an Anders brief, wherein Attorney Hathaway
states there are no non-frivolous issues preserved for our review.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
3 42 Pa.C.S.A. §§ 9541-9546.
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requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to
be wholly frivolous. Counsel
must also file an Anders
brief setting forth issues that
might arguably support the
appeal along with any other
issues necessary for the
effective appellate
presentation thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
appellant of the right to
retain new counsel, proceed
pro se or raise additional
points worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
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There are also requirements as to the
precise requirements of an Anders brief:
[T]he Anders brief that
accompanies court-appointed
counsel’s petition to
withdraw . . . 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 supports the
appeal; (3) set forth
counsel’s conclusion that the
appeal is frivolous; and
(4) state counsel’s reasons
for concluding that 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked
the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
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Our review of Attorney Hathaway’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, or raise any additional points that he deems worthy of this
court’s attention, and attached to the Anders petition a copy of the letter
sent to appellant as required under Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa.Super. 2015). See Commonwealth v. Daniels, 999 A.2d
590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set forth
the new requirements for an Anders brief, which are quoted above, the
holding did not abrogate the notice requirements set forth in Millisock that
remain binding legal precedent[]”). As Attorney Hathaway has complied
with all of the requirements set forth above, we conclude that counsel has
satisfied the procedural requirements of Anders.
Once counsel has met his obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact frivolous.” Santiago, 978 A.2d at 355 n.5, citing
Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981). Thus,
we now turn to the merits of appellant’s appeal.
The sole issue identified in Attorney Hathaway’s Anders brief is a
challenge to the discretionary aspects of appellant’s sentence. Specifically,
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Attorney Hathaway cited a statement by appellant that appellant “believed
he had been convicted of more serious charges in the past involving the
theft of more money and had received a more lenient sentence.” (Anders
brief at 2.)
When reviewing the discretionary aspects of an appellant’s sentence,
we employ the following standard of review:
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, 752 A.2d 910, 912
(Pa.Super. 2000). 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).
Commonwealth v. Evans, 901 A.2d 528, 533
(Pa.Super. 2006), appeal denied, 909 A.2d 303
(Pa. 2006) (internal citations omitted).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). Because
Anders requires us to review issues that are otherwise waived on appeal,
we will address appellant’s issue on its merits. Commonwealth v. Lilley,
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978 A.2d 995, 998 (Pa.Super. 2009); Commonwealth v. Hernandez, 783
A.2d 784, 787 (Pa.Super. 2001).
Here, appellant contends that the trial court erred in its sentence
because appellant received more lenient sentences for more serious offenses
in the past. Any sentences appellant may have received for past offenses is
irrelevant here. The trial court sentenced appellant to a term of
imprisonment below the statutory maximum. Accordingly, appellant’s issue
is without merit.
In sum, we find this appeal to be wholly frivolous, and our
independent review of the entire record has not disclosed any other
potentially non-frivolous issues. Consequently, we grant
Attorney Hathaway’s petition to withdraw, and we affirm the judgment of
sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2018
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