Com. v. Otero, J. ( 2018 )

J-S10022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE OTERO :
:
Appellant : No. 1848 EDA 2017
Appeal from the Judgment of Sentence April 4, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002819-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED MAY 30, 2018
Appellant, Jose Otero, appeals from the judgment of sentence entered
on April 4, 2017, as made final by the denial of his post-sentence motion on
April 17, 2017. In this direct appeal, Appellant’s court-appointed counsel
filed both a petition to withdraw as counsel and an accompanying brief
pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981),
and its federal predecessor, Anders v. California, 386 U.S. 738 (1967).
We conclude that Appellant’s counsel complied with the procedural
requirements necessary to withdraw. Furthermore, after independently
reviewing the record, we conclude that the appeal is wholly frivolous. We,
therefore, grant counsel’s petition to withdraw and affirm the judgment of
sentence.
J-S10022-18
The factual background and procedural history of this case are as
follows. During the week of January 28, 2016, Appellant sold narcotics to a
confidential informant on six occasions. When police executed search
warrants related to the drug investigation, they recovered a handgun with
an altered serial number and a utility bill bearing Appellant’s name.
On March 22, 2016, the Commonwealth charged Appellant via criminal
information with possession with intent to deliver a controlled substance,1
possession of a controlled substance by an unauthorized person,2 possession
of a firearm by a prohibited person,3 possessing an instrument of crime,4
and possessing a firearm with an altered serial number.5 On January 30,
2017, Appellant was convicted of possession with intent to deliver a
controlled substance, possessing a firearm with an altered serial number,
and possession of a firearm by a prohibited person. On April 4, 2017, the
trial court sentenced Appellant to an aggregate term of three to ten years’
imprisonment. On April 10, 2017, Appellant filed a post-sentence motion.
____________________________________________
1 35 P.S. § 780-113(a)(30).
2 35 P.S. § 780-113(a)(16).
3 18 Pa.C.S.A. § 6105(a) (1).
4 18 Pa.C.S.A. § 907.
5 18 Pa.C.S.A. § 6110.2(a).
-2-
J-S10022-18
The trial court denied that motion on April 17, 2017. This timely appeal
followed.6
Appellant’s counsel raises two issues in his Anders brief:
1. Was the sentence imposed upon [Appellant] by the [trial]
court manifestly excessive?
2. Was [Appellant] denied effective assistance of counsel due to
the fact that his trial counsel failed to preserve a claim that
the verdict is against the weight of the evidence?
Anders Brief at 8.
Before reviewing the merits of this appeal, we must first determine
whether counsel has fulfilled the necessary procedural requirements for
withdrawing as counsel. See Commonwealth v. Blauser, 166 A.3d 428,
431 (Pa. Super. 2017) (citation omitted). To withdraw under Anders,
court-appointed counsel
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 any additional points worthy of this Court’s attention.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (cleaned
up).
____________________________________________
6 Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
-3-
J-S10022-18
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
appeal is in fact wholly frivolous.” Commonwealth v. Santiago, 978 A.2d
349, 355 n.5 (Pa. 2009), quoting McClendon, 434 A.2d at 1187. It is only
when both the procedural and substantive requirements are satisfied that
counsel will be permitted to withdraw. In the case at bar, counsel has met
all of the above procedural obligations. We now turn to whether this appeal
is wholly frivolous.7
The first issue in counsel’s Anders brief challenges the discretionary
aspects of Appellant’s sentence. 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 has explained, in order to reach the merits of a
discretionary aspects claim,
we must engage in a four part analysis to determine: (1)
whether the appeal is timely; (2) whether Appellant preserved
his [or her] issue; (3) whether Appellant’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.
____________________________________________
7 Appellant did not file a response to counsel’s Anders brief.
-4-
J-S10022-18
Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa. Super. 2017)
(citation omitted). Appellant filed a timely notice of appeal and preserved
the issue in his post-sentence motion. Although counsel did not include a
Pennsylvania Rule of Appellate Procedure 2119(f) statement in his Anders
brief, we turn to whether this case raises a substantial question. See
Commonwealth v. Bynum–Hamilton, 135 A.3d 179, 184 (Pa. Super.
2016).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Grays, 167
A.3d 793, 816 (Pa. Super. 2017), appeal denied, 178 A.3d 106 (Pa. 2018)
(citation omitted).
In his post-sentence motion, Appellant argued that the trial court
failed to adequately consider certain mitigating factors. Moreover, Appellant
was sentenced in the middle of the applicable sentencing guidelines range
and the three sentences were ordered to run concurrently. Thus, Appellant’s
argument is a bald assertion that the trial court failed to consider certain
mitigating factors. This Court has held “that a claim of inadequate
-5-
J-S10022-18
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super.
2018) (cleaned up). Hence, any argument that Appellant is entitled to relief
on his discretionary aspects claim is wholly frivolous.
In his second issue, Appellant argues that trial counsel was ineffective
by failing to preserve a claim that the verdict was against the weight of the
evidence. Except in limited circumstances not present in this case, claims of
ineffective assistance of counsel may not be raised on direct appeal. Cook,
175 A.3d at 351 n.3 (citation omitted). Thus, any argument related to the
ineffectiveness of Appellant’s trial counsel is wholly frivolous for purposes of
this direct appeal.
In sum, we conclude that the issues raised in counsel’s Anders brief
are wholly frivolous. Furthermore, after an independent review of the entire
record, we conclude that no other issue of arguable merit exists. Therefore,
we grant counsel’s request to withdraw. Having determined that the issues
raised on appeal are wholly frivolous, we affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
-6-
J-S10022-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/18
-7-