Com. v. Reddy, M. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MAHMOUD REDDY, : No. 1578 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered April 15, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002109-2010
BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 23, 2019
Mahmoud Reddy appeals from the April 15, 2016 judgment of sentence
entered in the Court of Common Pleas of Philadelphia County after the trial
court resentenced appellant to an aggregate term of incarceration of three to
ten years as a result of his conviction in a jury trial of one count of possession
with intent to deliver a controlled substance (“PWID”).1 Michael L. McDermott,
Esq., has filed a petition to withdraw, alleging that the appeal is frivolous, and
an Anders brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,
we grant counsel’s petition to withdraw and affirm the judgment of sentence.
The trial court set forth the following procedural history:
1 35 P.S. § 780-113(a)(30).
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On March 28, 2013, at the conclusion of his jury trial,
[appellant] was found guilty on the sole charge of
[PWID]. On June 26, 2013, [appellant] was
sentenced to a period of confinement of 3 to 10 years
in a state correctional facility. On July 26, 2013,
[appellant] timely filed an appeal to the Superior
Court of Pennsylvania, at 2493 EDA 2013. On
April 23, 2015 the Superior Court affirmed
[appellant’s] conviction. However, [because the
Superior Court determined that appellant received an
illegal mandatory minimum sentence] pursuant to
Alleyne v. United States, [570 U.S. 99,] 133 S. Ct.
2151, [186 L. Ed. 2d 314 (2013),] and its Pennsylvania
progeny, [it] remanded the matter back for
resentencing.
On April 15, 2016, [appellant] was resentenced to a
period of confinement in a state correctional facility of
3 to 10 years on the sole charge of PWID. On April 22,
2016, [appellant] filed a motion for reconsideration of
his sentence, which the [trial court] denied on
April 27, 2016, without a hearing. [Appellant] did not
file a direct appeal.
On August 16, 2016, [appellant] timely filed a [Post
Conviction Relief Act] Petition pursuant to
42 Pa.C.S.A. §[§] 9541[-9546], seeking
reinstatement of his direct appellate rights. On
April 24, 2018, the [trial court], after a hearing,
reinstated [appellant’s] direct appellate rights.
On May 23, 2018, [appellant] timely filed the instant
appeal to the Superior Court of Pennsylvania. On
May 29, 2018, [the trial court] filed and served on
[appellant] an Order pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, directing
[appellant] to file and serve a Statement of Errors
Complained of on Appeal, within 21 days of the [trial
court]’s Order. On June 18, 2018, [appellant] timely
filed his [Rule 1925(b) statement)].
Trial court opinion, 1/10/19 at 1-2 (footnote omitted). Thereafter, the trial
court filed its Rule 1925(a) opinion.
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Preliminarily, we must address the petition to withdraw alleging that the
appeal is frivolous and the Anders brief that Attorney McDermott filed.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v. Flowers,
113 A.3d 1246, 1247-1248 (Pa.Super. 2015).
These requirements and the significant
protection they provide to an Anders
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). This Court has
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 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 brief and
petition to the appellant, advising
the appellant of the right to retain
new counsel, proceed pro se or raise
additional points worthy of the
Court’s attention.
Woods, 939 A.2d at 898 (citations omitted).
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There are also requirements as to
the precise content of an Anders
brief:
The 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked the
existence of potentially non-frivolous issues.” Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
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Our review of Attorney McDermott’s petition to withdraw, supporting
documentation, and Anders brief reveals that he has substantially complied
with all of the foregoing requirements, which is sufficient. See
Commonwealth v. Reid, 117 A.3d 777, 781 (Pa.Super. 2015) (finding that
“[s]ubstantial compliance with [Anders] requirements is sufficient.”).
Attorney McDermott simultaneously furnished a copy of the Anders brief to
appellant and advised him of his right to retain new counsel, proceed pro se,
or raise any additional points that he deems worthy of this court’s attention.
Attorney McDermott attached a copy of that letter to the Anders brief and to
the petition to withdraw, both of which he filed with this court. In the petition
to withdraw, Attorney McDermott averred that, after a thorough examination
of the record, he concluded the appeal does not present a non-frivolous legal
question. Additionally, Attorney McDermott furnished appellant with a copy
of the petition to withdraw. Appellant has not filed a response to the Anders
brief or the petition to withdraw. Therefore, as Attorney McDermott has
substantially complied with all of the requirements set forth above, we
conclude that counsel has satisfied the procedural requirements of Anders.
Once counsel has met his 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 355 n.5.
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With respect to briefing requirements, “[n]either Anders nor
McClendon requires that counsel’s brief provide an argument of any sort, let
alone the type of argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references to anything in the
record that might arguably support the appeal.” Santiago, 978 A.2d at 359,
360.
Here, in his statement of questions presented, Attorney McDermott
raises the following issue: “Is [sic] there any nonfrivolous issues regarding
[appellant’s] sentence?” (Anders brief at 6.) Counsel then sets forth a
procedural history of the case, albeit without record references. Counsel does
include the issues presented in appellant’s Rule 1925(b) statement which
(1) challenged the legality of the sentence, (2) claimed that the trial court
failed to place its reasons on the record for deviating from the sentencing
guidelines, and (3) alleged that the sentence was manifestly excessive. (Id.
at 8.) Counsel then examines appellant’s sentence, with appropriate citation
to the sentencing transcript, to conclude that (1) appellant’s sentence is legal,
(2) the trial court placed its reasons for deviating from the sentencing
guidelines on the record, and (3) the trial court properly exercised its
discretion when resentencing appellant. (Id. at 10-11.) As
Attorney McDermott explains, and as the record reflects, even though
appellant’s prior record score was 5 and the guidelines range was 24 to
30 months, plus or minus 6 months, the trial court deviated upward because
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the prior record score understated appellant’s criminal history, which was a
proper exercise of discretion. See, e.g., Commonwealth v. Griffin, 804
A.2d 1, 8 (Pa.Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert.
denied, 545 U.S. 1148 (2005), citing Commonwealth v. Eby, 784 A.2d 204
(Pa.Super. 2001) (reiterating that “the sentencing judge must state of record
the factual basis and specific reasons which compelled him or her to deviate
from the guideline ranges. When evaluating a claim of this type, it is
necessary to remember that the sentencing guidelines are advisory only.”).
In the words of the trial court,
according to the presentence report[, appellant] has
20 arrests with 12 convictions resulting in six prior
commitments. He also has revocation of probation
and parole, a total of four violations with two
revocations. The Probation Department report lists
his prior convictions. We also had a Court History.
[Appellant’s] entire life is drugs and guns with an
occasional theft or drunk driving thrown in. So it
would be fair to say that the prior record score
understates the seriousness of his criminal history.
Notes of testimony, 4/15/16 at 8.
After carefully reviewing the record, we conclude that it supports
counsel’s assessment that the appeal is frivolous and that the trial court
properly exercised its discretion when it imposed sentence.
Moreover, our independent review of the entire record reveals no
additional non-frivolous claims. Therefore, we grant counsel’s petition to
withdraw, and we affirm the judgment of sentence.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/19
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