Com. v. Otto Jr., P. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PATRICK THOMAS OTTO JR., :
:
Appellant : No. 5 EDA 2018
Appeal from the Judgment of Sentence November 16, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006607-2017
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 26, 2018
Appellant, Patrick Thomas Otto, Jr., appeals from the judgment of
sentence entered in the Court of Common Pleas of Delaware County following
his negotiated guilty plea to the charge of retail theft, 18 Pa.C.S.A. §
3939(a)(1). On appeal, he challenges the discretionary aspects of his
sentence. Additionally, Appellant’s counsel has filed a petition seeking to
withdraw his representation, as well as a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009) (hereinafter “Anders brief”). After a careful review,
we grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
The relevant facts and procedural history are as follows: Appellant was
arrested in connection with a retail theft at a Target store, and on November
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* Former Justice specially assigned to the Superior Court.
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16, 2017, represented by counsel, he entered a negotiated guilty plea to one
count of retail theft. Relevantly, the Commonwealth indicated the following
with regard to the plea:
Your Honor, this is going to be a negotiated guilty plea to Count
1, Retail Theft, a misdemeanor of the first degree. The
recommended sentence is time served to 23 months. Time served
is from 10/23/17 to 11/16/17. [Appellant] will complete 48 hours
of community service. He’ll undergo a drug and alcohol evaluation
and comply with any and all recommendations, and that must be
completed within ten days of his release from Delaware County
Prison and he must stay away from the Target store located. . .in
Springfield, PA[.]
N.T., 11/16/17, at 4-5.
Appellant confirmed that he accepted the agreement as set forth by the
Commonwealth. Id. at 5. At the conclusion of the guilty plea hearing, the
trial court indicated it accepted the parties’ negotiated guilty plea, and it
sentenced Appellant in accordance therewith. Id. at 7.
Thereafter, despite being provided with his post-sentence rights,
Appellant filed no post-sentence motions. However, on December 13, 2017,
Appellant filed a timely, counseled notice of appeal to this Court. The trial
court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and in
response, counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4)
indicating his intent to file an Anders brief on appeal. The trial court filed a
brief Pa.R.A.P. 1925(a) opinion explaining Appellant waived his right to
withdraw his guilty plea or challenge the discretionary aspects of his sentence.
On April 11, 2018, Appellant’s counsel filed in this Court a petition to withdraw
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his representation, as well as a brief pursuant to Anders. Appellant filed no
further submissions either pro se or through privately-retained counsel.
Prior to addressing any issue raised on appeal, we must first resolve
counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa.Super. 2007) (en banc). See also Commonwealth v. Rojas, 874
A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen faced with
a purported Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw”). There
are procedural and briefing requirements imposed upon an attorney who
seeks to withdraw on appeal pursuant to which counsel must:
1) 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; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago stated
that an Anders brief 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 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.
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Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide
the appellant with a copy of the Anders brief, together with a letter that
advises the appellant of his or her right to “(1) retain new counsel to pursue
the appeal; (2) proceed pro se on appeal; or (3) raise any points that the
appellant deems worthy of the court’s attention in addition to the points raised
by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these
requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super. 2007).
Herein, counsel contemporaneously filed his petition to withdraw as
counsel and Anders brief. In his petition, counsel states that after a thorough
and conscientious examination of the record he has determined that an appeal
herein is wholly frivolous. Additionally, in accordance with Nischan, counsel
has mailed Appellant a copy of the Anders brief and a letter informing him
that: (1) he has the right to retain new counsel; (2) he may proceed further
with his case pro se; and (3) he may raise any points that he deems worthy
of the this Court’s attention. Counsel attached his conforming correspondence
to his petition to withdraw. See Commonwealth v. Millisock, 873 A.2d 748(Pa.Super. 2005).1
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1 Appellant’s counsel advised this Court that he has two addresses listed in his
file for Appellant: one in Drexel Hill, PA, and one in Philadelphia, PA. The
Philadelphia, PA address is the address Appellant also provided to the trial
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In the Anders brief, counsel provides a summary of the facts and
procedural history of the case with citations to the record, refers to evidence
of record that might arguably support the issue raised on appeal challenging
the discretionary aspects of the sentence, provides citations to relevant case
law, and states his reasoning and conclusion that the appeal is wholly
frivolous. Accordingly, counsel has substantially complied with all of the
technical requirements of Anders and Santiago. Therefore, we first proceed
to examine the issue counsel identified in the Anders brief and then conduct
“a full examination of all the proceedings, to decide whether the case is wholly
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court, and in fact, various documents filed in the trial court contain the
Philadelphia, PA address and bear Appellant’s signature. Out of an abundance
of caution, Appellant’s counsel mailed to both addresses a copy of his petition
to withdraw, Anders brief, and letter advising Appellant of his rights pursuant
to Nischan. However, with regard to both service attempts, the Post Office
returned the documents to counsel. Specifically, with regard to the Drexel
Hill, PA address, the Post Office returned the documents as undeliverable.
With regard to the Philadelphia, PA address, the Post Office returned the
documents as “Attempted-Not Known Unable to Forward.”
Counsel has advised this Court that Appellant has not provided him with
any other address, and consequently, he cannot be sure that Appellant has
received notice of the Anders documents. Although the record reveals
Appellant knew he had a direct appeal pending in the instant case, our review
of the trial court’s docket entries, as well as this Court’s docket entries, reveals
Appellant has neither contacted nor provided the courts with his new address.
Consequently, given the circumstances of this case, we conclude counsel’s
efforts to serve Appellant with the appropriate documents constitutes
substantial compliance with the Anders requirements. See Commonwealth
v. O’Malley, 957 A.2d 1265 (Pa.Super. 2008) (indicating that substantial
compliance with the requirements to withdraw may satisfy the Anders
criteria).
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frivolous.” Commonwealth v. Yorgey, 2018 WL 2346441, at *4 (Pa.Super.
filed 5/24/18) (en banc) (quotation omitted).2
In the Anders brief, Appellant’s counsel raised a challenge to the
discretionary aspects of Appellant’s sentence. Specifically, he questioned
whether “a maximum sentence of 23 months incarceration is harsh and
excessive under the circumstances.” Counsel’s Anders brief at 4.
Initially, we consider whether Appellant has waived his challenge to the
discretionary aspect of his sentence. In Commonwealth v. Lincoln, 72 A.3d
606 (Pa.Super. 2013), this Court opined: “Settled Pennsylvania law makes
clear that by entering a guilty plea, the defendant waives his right to challenge
on direct appeal all nonjurisdictional defects except the legality of the sentence
and the validity of the plea.” Id. at 609 (citation omitted). “Where the plea
agreement contains a negotiated sentence which is accepted and imposed by
the sentencing court, there is no authority to permit a challenge to the
discretionary aspects of that sentence.” Commonwealth v. Reichle, 589
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2In Yorgey, an en banc panel of this Court relevantly held:
[W]e must give Anders a most generous reading and review ‘the
case’ as presented in the entire record with consideration first of
issues raised by counsel. . . .[T]his review does not require this
Court to act as counsel or otherwise advocate on behalf of a party.
Rather, it requires us only to conduct a review of the record to
ascertain if on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze
those issues of arguable merit; just identify them, deny the
motion to withdraw, and order counsel to analyze them.
Yorgey, 2018 WL 2346441, at *4 (citation omitted).
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A.2d 1140, 1141 (Pa.Super. 1991). See Commonwealth v. Brown, 982
A.2d 1017, 1019 (Pa.Super. 2009) (“[W]here a defendant pleads guilty
pursuant to a plea agreement specifying particular penalties, the defendant
may not seek a discretionary appeal relating to those agreed-upon penalties.
Permitting a defendant to petition for such an appeal would undermine the
integrity of the plea negotiation process and could ultimately deprive the
Commonwealth of sentencing particulars for which it bargained.”) (citations
omitted)).
Here, the plea agreement entered into between Appellant and the
Commonwealth specified the particulars of Appellant’s sentence, including the
maximum sentence of 23 months, which Appellant now challenges as being
excessive. The trial court accepted the plea and Appellant received the
negotiated sentence in its entirety. Therefore, Appellant has waived his
discretionary aspects of sentencing claim.3 Commonwealth v. Heaster, 171
A.3d 268, 271 (Pa.Super. 2017) (“[W]here a defendant enters into a
negotiated plea agreement that includes the terms of the sentence, the
defendant may not seek a discretionary appeal relating to those agreed-upon
terms.”) (citation omitted)).
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3 Further, we note that Appellant did not seek to withdraw his guilty plea or
challenge the discretionary aspects of his sentence in the trial court. See
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).
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“Furthermore, after conducting a full examination of all the proceedings
as required pursuant to Anders, we discern no non-frivolous issues to be
raised on appeal.” Yorgey, 2018 WL 2346441, at *6. Thus, we grant
counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.
Petition to Withdraw granted. Judgment of Sentenced affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/18
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