Com. v. Carbonara, R. ( 2015 )

J-S74040-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD R. CARBONARA, :
:
Appellant : No. 1516 EDA 2014
Appeal from the Judgment of Sentence April 10, 2014,
Court of Common Pleas, Delaware County,
Criminal Division at No. CP-23-CR-0001864-2014
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 23, 2015
Appellant, Richard R. Carbonara (“Carbonara”), appeals from the
judgment of sentence entered on April 11, 2014 by the Court of Common
Pleas of Delaware County, Criminal Division, following his negotiated guilty
plea to possession of a controlled substance.1 Carbonara’s court-appointed
appellate counsel (“Counsel”) seeks to withdraw from representation
pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
grant Counsel’s petition to withdraw and affirm Carbonara’s judgment of
sentence.
We summarize the relevant facts and procedural history of this case as
follows. On April 10, 2014, Carbonara pled guilty to possession of a
1
35 P.S. § 780-113(a)(16).
*Retired Senior Judge assigned to the Superior Court.
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controlled substance and, pursuant to a negotiated plea agreement, the trial
court sentenced him to his negotiated sentence of time served (thirty-five
days) to twenty-three months of incarceration, with immediate parole upon
completion of drug and alcohol evaluation. On April 21, 2014, Carbonara
wrote to the trial court, advising it of his desire to file an appeal, and the
trial court subsequently appointed Counsel to represent him. On May 9,
2014, Counsel filed a timely notice of appeal. In his concise statement of
the errors complained of on appeal, Counsel informed the trial court,
pursuant to Rule 1925(c)(4) of the Pennsylvania Rules of Appellate
Procedure, that he intended to file an Anders brief with the Superior Court
in lieu of a Rule 1925(b) statement.
On appeal, Counsel has filed a petition to withdraw and brief pursuant
to Anders and Santiago. There are particular mandates that counsel
seeking to withdraw pursuant to Anders and Santiago must follow. These
mandates and the significant protection they provide to an 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). We have 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
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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.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the
petition to withdraw and remand the case with
appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate’s
brief on Appellant’s behalf).
Id. (citations omitted).
Moreover, there are requirements as to precisely what an Anders
brief must contain:
[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 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. When faced with a petition to withdraw and
Anders brief, we may not review the merits of the underlying issues without
first deciding whether counsel has properly requested permission to
withdraw. Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super.
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2008) (citation omitted). If counsel has met these 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.” Santiago, 978 A.2d at 354 n.5.
We conclude that Counsel has complied with the requirements outlined
above. Counsel has filed a petition with this Court stating that after
reviewing the record, he finds this appeal to be wholly frivolous. Petition to
Withdraw as Counsel, 8/20/14, ¶¶ 2-3. Counsel has filed a brief setting
forth the issue that he believes might arguably support an appeal. See
Anders Brief at 1-3. In conformance with Santiago, Counsel’s brief
includes summaries of the facts and procedural history of the case and
discusses the issue he believes might support Carbonara’s appeal. See id.
Counsel’s brief sets forth his conclusion that the appeal is frivolous and
includes citation to relevant authority. See id. at 3-4. Finally, Counsel has
attached to his petition the letter that he sent to Carbonara, which enclosed
Counsel’s petition and Anders brief and advised Carbonara of his right to
proceed pro se or with private counsel and to raise any additional issues that
he deems worthy of this Court’s consideration.2 Petition to Withdraw as
Counsel, 8/20/14, at Appendix A. Accordingly, we turn our attention to the
issue raised by Counsel in his Anders brief.
2
Carbonara did not file a pro se response raising any additional issues for
our consideration.
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On appeal, Counsel raises the following issue as arguably supporting
an appeal: “whether [Carbonara’s] maximum sentence of [twenty-three]
months [of] incarceration was harsh and excessive under the
circumstances.” Anders Brief at 1. Carbonara asserts that his twenty-three
month maximum sentence is excessive in light of the fact that he has a four-
year-old daughter to support. See id. at 3.
We agree with Counsel that this issue is frivolous. Here, Carbonara
pled guilty to possession of a controlled substance and the trial court
sentenced him pursuant to a negotiated plea agreement. Trial Court
Opinion, 5/30/14, at 1; N.T., 4/10/14, at 3-12. This Court has held that
“[o]ne who pleads guilty and receives a negotiated sentence may not then
seek discretionary review of that sentence.” Commonwealth v. O’Malley,
957 A.2d 1265, 1267 (Pa. Super. 2008). Moreover, our Supreme Court has
held that “upon entry of a guilty plea, a defendant waives all claims and
defenses other than those sounding in the jurisdiction of the court, the
validity of the plea, and what has been termed the ‘legality’ of the sentence
imposed[.]” Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa.
2014). Accordingly, Carbonara’s attempt to challenge the discretionary
aspects of his sentence is frivolous.3
3
Moreover, we point out that even if Carbonara had the right to challenge
the discretionary aspects of his sentence in this case, he failed to object to
his sentence during sentencing and/or file a post-sentence motion.
Consequently, Carbonara did not preserve his discretionary aspects of
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Finally, after conducting our own independent review of the record, we
conclude that there are no issues of merit and agree with Counsel’s
assessment that Carbonara’s direct appeal is frivolous. Accordingly, we find
this appeal wholly frivolous and permit Counsel to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Bender, P.J.E. joins the Memorandum.
Strassburger, J. files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
sentencing claim for review. O’Malley, 957 A.2d at 1267 n.3; see also
Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006)
(“Issues challenging the discretionary aspects of a sentence must be raised
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.”).
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