Com. v. Englehart, A. ( 2018 )

J-S32015-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMANDA ENGLEHART :
:
Appellant : No. 1938 MDA 2017
Appeal from the Judgment of Sentence November 30, 2017
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000648-2017
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
JUDGMENT ORDER BY PANELLA, J. FILED SEPTEMBER 25, 2018
Amanda Englehart appeals from the judgment of sentence entered in
the Lackawanna County Court of Common Pleas. Englehart asserts the trial
court abused its discretion in fashioning her sentence. Additionally, her court-
appointed counsel, Donna M. DeVita, Esquire, seeks permission to withdraw
as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and grant
Attorney DeVita leave to withdraw.
Following a guilty plea to a single count of theft, the court sentenced
Englehart to 15 to 36 months’ imprisonment, followed by 36 months’
probation. Thirteen days after the court imposed her sentence, Englehart filed
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* Retired Senior Judge assigned to the Superior Court.
J-S32015-18
a post-sentence motion. Through this motion, Englehart challenged, in part,
the discretionary aspects of her sentence. This timely appeal follows the trial
court’s denial of Englehart’s discretionary aspects of sentence claims.1
Prior to addressing the merits of Englehart’s requested appeal, we must
examine Attorney DeVita’s request to withdraw. Attorney DeVita has
substantially complied with the mandated procedure for withdrawing as
counsel. See Santiago, 978 A.2d at 361 (articulating Anders requirements);
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing
that counsel must inform client by letter of rights to proceed once counsel
moves to withdraw and append a copy of the letter to the petition). Englehart
did not file a response.
As counsel has met her technical obligation to withdraw, we must now
“make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.”
Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015)
(citation omitted).
Counsel has identified three issues Englehart believes entitles her to
relief. All three challenge the discretionary aspects of sentencing.
“To preserve issues concerning the discretionary aspects of sentencing,
a defendant must raise them during sentencing or in a timely post-sentence
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1 The trial court, noting that it made “an obvious and patent mistake in
sentencing,” did grant Englehart’s post-sentence request to modify her
sentence to include her Recidivism Risk Reduction Incentive eligibility. See
Trial Court Order, 11/30/17.
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motion.” Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008)
(citations omitted). Englehart did not raise any discretionary aspects
challenges at sentencing. While she did file a post-sentence motion, it was
untimely. See Pa.R.Crim.P. 720(A)(1) (“[A] written post sentence motion shall
be filed no later than 10 days after imposition of sentence.”) “An untimely
post-sentence motion does not preserve issues for appeal.” Commonwealth
v. Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007) (citation omitted). Englehart
has thus waived her challenges to the discretionary aspects of sentencing.
Because Englehart has waived her issues on appeal, we agree with
Attorney DeVita that challenging the discretionary aspects of sentencing in
this direct appeal is wholly frivolous. See Commonwealth v. Kalichak, 943
A.2d 285, 291 (Pa. Super. 2008) (observing that when an issue has been
waived “pursuing th[e] matter on direct appeal is frivolous”).
Our independent review of the record reveals no other, non-frivolous
issues that she could raise on appeal.
We affirm Englehart’s judgment of sentence and grant counsel’s petition
to withdraw.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2018
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