Com. v. Gutierrez, A. ( 2018 )

J-A15022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY CHARLES GUTIERREZ :
:
Appellant : No. 1711 MDA 2017
Appeal from the Judgment of Sentence October 6, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001007-2017
BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED JULY 12, 2018
Anthony Charles Gutierrez (Appellant) appeals from the judgment of
sentence imposed following the entry of his negotiated guilty plea to
possession with intent to manufacture or deliver a controlled substance.1
Appellant’s appellate counsel (“Counsel”) seeks to withdraw from
representation pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967) and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009). Upon review, we grant Counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
The pertinent facts and procedural history of this case are as follows.
On August 22, 2017, Appellant pled guilty to one count of possession with
intent to manufacture or deliver a controlled substance pursuant to a
____________________________________________
1 35 P.S. 780-113(a)(30).
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negotiated plea agreement. The plea agreement, however, was open with
respect to Appellant’s sentence. On October 6, 2017, the trial court sentenced
Appellant to 24 to 48 months of incarceration. The court ordered this sentence
to run consecutively to a sentence Appellant was already serving in an
unrelated matter.
Appellant did not file any post-sentence motions. Rather, on October
31, 2017, Appellant timely appealed to this Court. On November 2, 2017, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure. On November 21, 2017, Counsel filed a statement of intent to file
an Anders brief. See Pa.R.A.P. 1925(c)(4). On April 6, 2018, Counsel
petitioned for leave to withdraw with this Court.
There are particular mandates that counsel seeking to withdraw
pursuant to Anders must follow. These mandates 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).
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 might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof.
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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).
Additionally, 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 purported 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. 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.
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Instantly, 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 for
Leave to Withdraw as Counsel, 4/6/18, at ¶ 2. In conformance with Santiago,
Counsel’s brief includes summaries of the facts and procedural history of the
case and discusses the only issue he believes might arguably support
Appellant’s appeal. See Anders Brief at 2-8. Counsel’s brief sets forth his
conclusion that the appeal is frivolous and includes citation to relevant
authority. See id. at 5-8. Finally, Counsel has attached to his petition to
withdraw the letter that he sent to Appellant, which enclosed Counsel’s
petition and Anders brief and advised Appellant 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.
The lone issue presented by Counsel in the Anders brief is “whether the
imposition of a 24 month to 48 month sentence in a state correctional
institution is harsh and excessive when [Appellant] took responsibility by
pleading guilty.” Anders Brief at 2. This issue challenges the discretionary
aspects of Appellant’s sentence. Our standard of review when considering
discretionary aspects of sentencing claims is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
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abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal
quotations and citations omitted).
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),
appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-
part test to invoke this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.” Id. We conduct this four-part test to determine
whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
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77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Importantly, “[i]ssues 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.” Commonwealth
v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006) (citation and
quotations omitted).
Appellant has waived his discretionary aspects of sentencing claim. Our
review of the certified record reveals that Appellant never filed a post-
sentence motion challenging the discretionary aspects of his sentence.
Additionally, the transcript of the sentencing proceedings reveals that
Appellant did not challenge the discretionary aspects of his sentence during
sentencing. See N.T., 10/6/17, at 1-5. Thus, Appellant has waived his
discretionary aspects of sentencing claim. See Shugars, 895 A.2d at 1273-
1274. Counsel is correct that raising this issue on appeal would be frivolous.
Moreover, even if Appellant had properly preserved his discretionary
aspects of sentencing claim for appellate review, we would conclude that the
claim is frivolous. Section 9721(b) of the Sentencing Code sets forth general
sentencing standards for trial courts and provides, in pertinent part:
(b) General standards.—. . . the court shall follow the
general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of
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the victim and on the community, and the rehabilitative needs of
the defendant. . . . In every case in which the court imposes a
sentence for a felony or misdemeanor, modifies a sentence,
resentences an offender following revocation of probation, county
intermediate punishment or State intermediate punishment or
resentences following remand, the court shall make as a part of
the record, and disclose in open court at the time of sentencing,
a statement of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
The trial court did not abuse its discretion in sentencing Appellant. The
record reflects that Appellant received a sentence in the standard guideline
range. N.T., 10/6/17, at 1-5. Additionally, the trial court had a presentence
investigation report and acknowledged reviewing it. Id. “[W]here the
sentencing court imposed a standard-range sentence with the benefit of a pre-
sentence report, we will not consider the sentence excessive.”
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). “In those
circumstances, we can assume the sentencing court was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Id. (quotations and
citations omitted). Therefore, there is no support for Appellant’s claim that
his sentence was excessive. Accordingly, we agree with Counsel that
Appellant’s discretionary aspects of sentencing claim is frivolous.
Finally, after conducting our own independent review of the record, we
have determined that there are no issues of merit and agree with Counsel’s
assessment that Appellant’s direct appeal is frivolous. We thus find this appeal
wholly frivolous and permit Counsel to withdraw.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/18
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