Com. v. Knaub, G. ( 2016 )

J-S69006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY SCOTT KNAUB
Appellant No. 106 MDA 2016
Appeal from the Judgment of Sentence April 28, 2014
In the Court of Common Pleas of York County
Criminal Division at Nos: CP-67-CR-0005598-2012; CP-67-CR-0005601-
2012; CP-67-CR-0005633-2012
BEFORE: STABILE, DUBOW, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 30, 2016
Appellant, Gregory Scott Knaub, appeals from the April 28, 2014
judgment of sentence entered in the Court of Common Pleas of York County
(“trial court”) following his convictions of criminal mischief, theft, burglary,
access device fraud, unlawful restraint, and robbery. In the brief filed by his
counsel in accordance with Anders v. California, 386 U.S. 738 (1969),
Appellant contends he is displeased with his sentence. His counsel
concurrently filed a petition for leave to withdraw. In response, Appellant
filed a pro se brief. Following review, we grant counsel’s petition for leave to
withdraw and affirm Appellant’s judgment of sentence.
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*
Retired Senior Judge assigned to the Superior Court.
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On March 21, 2014, Appellant entered guilty pleas to criminal mischief,
theft, burglary, access device fraud, unlawful restraint, and robbery. He was
sentenced at each of those docket numbers on April 28, 2014, resulting in
an aggregate sentence of 14½ to 29 years of imprisonment. After having
his direct appellate rights reinstated via a PCRA petition, Appellant filed the
instant appeal on January 19, 2016. Appellant filed a 1925(b) statement on
February 5, 2016, and the trial court issued a 1925(a) opinion on February
24, 2016.
Appellant’s counsel filed, in this Court, a petition to withdraw as
counsel and an Anders brief, wherein counsel raises one issue for our
review:
I. Whether the Appellant’s appeal contending the trial court
imposed an excessive sentence is wholly frivolous and without
arguable merit within the meaning of Anders v. California, 368
U.S. 728 (1967); Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981); and Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).
Anders Brief at 5. Appellate counsel filed his Anders brief on April 6, 2016,
along with an application to withdraw as counsel. This Court issued an order
directing Appellate counsel to comply with the letter of rights pursuant to
Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005). Appellate
counsel filed an amended application to withdraw on April 15, 2016. This
Court entered an order on April 19, 2016, granting Appellant the opportunity
to respond to counsel’s Anders Brief within thirty days. Appellant filed a
reply to counsel’s Anders brief on May 6, 2016.
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Before this Court can review the merits of the underlying issues, we
must first address counsel’s petition to withdraw. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). In order for
court-appointed counsel to withdraw, 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) file a brief
referring to anything that arguably might support the appeal but
which does not resemble a “no-merit” letter or amicus curiae
brief; and (3) furnish a copy of the brief to the defendant and
advise the defendant of his or her right to retain new counsel or
raise any additional points that he or she deems worthy of the
court’s attention.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).
Upon review, we conclude counsel has satisfied the procedural
requirements set forth in Anders. In the petition, counsel explains his
conclusion that the issues sought to be raised by Appellant are wholly
frivolous. 1 After this Court’s April 7, 2016 order, counsel sent a copy of the
Anders brief to Appellant. Appellant was advised of his right to retain new
counsel or act on his own behalf after receiving this Court’s order of April 19,
2016. Subsequently, Appellant filed a reply to counsel’s Anders brief on
May 6, 2016.
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1
While counsel’s letter incorrectly cites to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213, (Pa.
Super. 1988), he has substantially complied with the procedural
requirements of Anders.
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Next, this Court must first address whether counsel’s Anders brief
satisfies the following substantive requirements:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record 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.
In the Anders brief, counsel has included a statement of the case that
includes a procedural history of the case. Anders Brief at 6. Counsel has
complied with the first requirement.
The second required element of an Anders brief is reference to
anything in the record that counsel believes arguably supports the appeal.
See Santiago, 978 A.2d at 361. Here, counsel raises the question of
whether the trial court abused its discretion when it sentenced Appellant to
consecutive sentences and did not consider his age as a mitigating factor.
Anders Brief at 8-10. Again, counsel notes Appellant “complains because
the sentences were nearly all run consecutive to one another, he will most
likely spend the remainder of his life in prison.” Id. at 9. Counsel,
therefore, has satisfied the second Anders requirement.
The third element of Anders requires counsel to state his conclusion
that the appeal is frivolous, which counsel complied with in his brief. Id. at
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11. The final element of Anders requires counsel to provide his reasons for
concluding that the appeal is frivolous. Santiago, 978 A.2d at 361.
Counsel complied with this requirement and satisfied the final prong of the
Anders test. Anders Brief at 8-10.
We find counsel has satisfied the requirements for a petition to
withdraw. He complied with the briefing requirements, as explained above.
Appellant was advised of his right to retain substitute counsel or to proceed
pro se to bring any attention points to this Court's attention, which he did by
filing a reply brief.
We note that Appellant has filed a response to the petition to withdraw
in the form of a pro se brief. In the brief, he asserts the trial court failed to
consider his age, his Wilson’s disease, or a sentence of probation when it
sentenced him to 14½ to 29 years. Appellant’s Pro Se Brief at 4. Appellant
contends that this is tantamount to a sentence of life imprisonment.
As reflected above, we have determined that counsel has satisfied the
technical requirements of Anders and Santiago. After determining that the
technical requirements are satisfied, it is generally incumbent upon this
Court to “conduct an independent review of the record to discern if there are
any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(citations and footnote omitted). However, as recognized in
Commonwealth v. Bennett, 124 A.3d 327 (Pa. Super. 2015):
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By filing a pro se response, as in this case, or hiring private
counsel, the appellant has essentially filed an advocate’s brief.
It is well-settled that when an advocate’s brief has been filed on
behalf of the appellant, our Court is limited to examining only
those issues raised and developed in the brief. We do not act
as, and are forbidden from acting as, appellant's counsel.
Accordingly, our independent review is logically limited in the
situation presented herein. If we conduct an independent review
of the entire record, and conclude that there are no non-frivolous
issues to be found anywhere therein, we have rendered the
appellant’s right to proceed pro se or to hire private counsel,
meaningless. There would be no point in allowing a pro se or
counseled filing if we had already determined any issue raised
therein was frivolous.
Id. at 333. Therefore, we limit our review to the issue raised in the Anders
brief after which we review the pro se brief as we would review any
advocate’s brief. Id.
Based upon our review, we find the claim raised by counsel in the
Anders brief to be frivolous. Likewise, Appellant’s argument in his pro se
brief is frivolous. At sentencing, the trial court noted Appellant’s lengthy
criminal history, the information in the pre-sentence investigation report,2
and listened to the statements made by the Commonwealth, defense
counsel, Appellant, and one of the victims before fashioning the sentence.
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2
The trial court had the benefit of a pre-sentence investigation report, which
must address a number of factors including the age, and medical history of
the Appellant. See Commonwealth v. Flowers, 950 A.2d 330, 333 n.2
(Pa. Super. 2008). Therefore, the trial court properly considered Appellant’s
age as well as his Wilson’s disease in fashioning the sentence imposed.
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See N.T. Sentencing 4/28/2014, at 5, 8.3 The trial court did not abuse its
discretion when it sentenced Appellant in the standard range and adequately
discussed its reasons for sentencing. See N.T. Sentencing, 4/28/2014, at 5;
see also N.T. Reconsideration of Sentence, 5/21/2014, at 7. Therefore,
Appellant is not entitled to relief.
Counsel’s petition to withdraw granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
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3
Appellant’s challenge is to the discretionary aspects of sentencing, which
requires compliance with Pa.R.A.P. 2119(f); however, due to the unique
posture of this case, this Court will not find Appellant’s claim waived. See
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (“Where
counsel files an Anders brief, this Court has reviewed the matter even
absent a separate Pa.R.A.P. 2119(f) statement.”).
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