Com. v. Moore, R. ( 2018 )

J-S10029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD MOORE :
:
Appellant : No. 2822 EDA 2017
Appeal from the Judgment of Sentence July 20, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002495-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 15, 2018
Appellant, Richard Moore, appeals from the judgment of sentence
entered on July 20, 2017. On this direct appeal, Appellant’s court-appointed
counsel has filed both a petition for leave to withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude
that Appellant’s counsel has complied with the procedural requirements
necessary to affect withdrawal. Moreover, after independently reviewing the
record, we conclude that the instant appeal is wholly frivolous. We,
therefore, grant counsel’s petition for leave to withdraw and affirm
Appellant’s judgment of sentence.
In 2016, the Commonwealth charged Appellant with committing
multiple crimes, including rape, sexual assault, and indecent assault. See
Commonwealth’s Information, 5/25/16, at 1-2. However, prior to trial,
J-S10029-18
Appellant and the Commonwealth entered into an agreement whereby, if
Appellant pleaded guilty to sexual assault,1 the Commonwealth would
dismiss the remaining counts and recommend a sentence of 11 ½ to 23
months in prison, followed by five years of probation. N.T. Guilty Plea
Hearing, 7/20/17, at 3-4.
On July 20, 2017, Appellant tendered his guilty plea and the
Commonwealth recommended the agreed-upon sentence. Id. The trial
court accepted Appellant’s plea and sentenced Appellant in accordance with
the Commonwealth’s recommendation. Id. at 9. Appellant did not object to
his sentence at the hearing and Appellant did not file a post-sentence motion
with the trial court. Id. at 9-10.
Appellant filed a timely notice of appeal. On appeal, Appellant’s court-
appointed counsel filed a petition for leave to withdraw and counsel
accompanied this petition with an Anders brief. The Anders brief raises
one claim:
Whether the sentence of 11 ½ to 23 [months’]
imprisonment imposed on [Appellant] was harsh and
excessive under the circumstances?
Appellant’s Brief at 2.
Before reviewing the merits of this appeal, this Court must first
determine whether appointed counsel has fulfilled the necessary procedural
____________________________________________
1 18 Pa.C.S.A. § 3124.1.
-2-
J-S10029-18
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “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.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in
which counsel:
(1) provide[s] a summary of the procedural history and
facts, with citations to the record; (2) refer[s] to anything in
the record that counsel believes arguably supports the
appeal; (3) set[s] forth counsel’s conclusion that the appeal
is frivolous; and (4) state[s] 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.
Finally, counsel must furnish a copy of the Anders brief to his or her
client and advise the client “of [the client’s] right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court’s
attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.
2007).
If counsel meets all of the above 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
-3-
J-S10029-18
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. It is only
when all of the procedural and substantive requirements are satisfied that
counsel will be permitted to withdraw.
In the case at bar, counsel complied with all of the above procedural
obligations. We must, therefore, review the entire record and analyze
whether this appeal is, in fact, wholly frivolous.
On appeal, Appellant claims that the trial court abused its discretion by
imposing a harsh and excessive sentence. Appellant’s Brief at 2. Appellant’s
claim on appeal is a challenge to the discretionary aspects of his sentence.
“[S]entencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent an abuse of
discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.
2001). Moreover, pursuant to statute, Appellant does not have an automatic
right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, 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).
-4-
J-S10029-18
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant did not object to his sentence at the
sentencing hearing and Appellant did not file a post-sentence motion.
Therefore, Appellant waived any challenge to the discretionary aspects of his
sentence. Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) (“[i]ssues not raised in the
lower court are waived and cannot be raised for the first time on appeal”).
Further, since the claim on appeal is waived, the claim is frivolous under
Anders. Commonwealth v. Tukhi, 149 A.3d 881, 888-889 (Pa. Super.
2016) (holding that, under Anders, “[a]n issue that is waived is frivolous”);
Commonwealth v. Kalichak, 943 A.3d 285, 291 (Pa. Super. 2008)
(holding: “this issue has been waived. Having been waived, pursuing this
matter on direct appeal is frivolous”).
We have independently considered the issue raised within Appellant’s
brief and we have determined that the claim is frivolous. In addition, after
an independent review of the entire record, we see nothing that might
arguably support this appeal. The appeal is therefore wholly frivolous.
Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s
petition for leave to withdraw.
Petition for leave to withdraw appearance granted. Judgment of
sentence affirmed. Jurisdiction relinquished.
-5-
J-S10029-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/18
-6-