Com. v. Morrison, M. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MAGNUM AVERI MORRISON, : No. 1159 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, June 16, 2016,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0001232-2016
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 15, 2017
Appellant, Magnum Averi Morrison, appeals from the June 16, 2016
judgment of sentence of 31 months to 7 years’ imprisonment, with
110 days’ credit for time-served, imposed after he pled guilty to robbery.1
Contemporaneously with this appeal, counsel2 has requested leave to
withdraw in accordance with Anders v. California, 386 U.S. 738 (1967),
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and their
progeny. After careful review, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701(a)(1)(ii).
2
At all pertinent times in this appeal, appellant was represented by Brian P.
McBeth, Esq.
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The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows. On February 28, 2016, appellant was
apprehended by police after he attempted to rob a store at gunpoint. (Notes
of testimony, 6/16/16 at 4-5.) On June 16, 2016, appellant entered a
negotiated guilty plea to one count of robbery in connection with this
incident. (Id.) As noted, appellant was sentenced that same day to
31 months to 7 years’ imprisonment, with 110 days’ credit for time-served.
Appellant did not file any post-sentence motions. On July 15, 2016,
appellant filed a timely notice of appeal. On July 18, 2016, the trial court
directed appellant to file a concise statement of errors complained of on
appeal, in accordance with Pa.R.A.P. 1925(b). In lieu of a Rule 1925(b)
statement, counsel filed a statement of his intention to file an
Anders/McClendon brief, in accordance with Rule 1925(c)(4), on July 20,
2016. Thereafter, on August 16, 2016, the trial court filed a Rule 1925(a)
opinion, concluding that there were no meritorious issues on appeal. (See
trial court Rule 1925(a) opinion, 8/16/16 at ¶3.) Thereafter, on
September 30, 2016, appellant’s counsel filed a motion and brief to
withdraw from representation. Appellant did not respond to counsel’s
motion to withdraw.
In his Anders brief, counsel raises the following issue on appellant’s
behalf.
A. Whether the trial court imposed an illegal
sentence of 31 months to 7 years[’]
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incarceration in the Bureau of Corrections after
[a]ppellant entered a negotiated guilty plea to
robbery, graded as a felony of the first degree,
under 18 Pa.C.S.A. § 3701(a)(1)(ii)?
Anders brief at 4.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.
2010) (citation omitted). In order to withdraw pursuant to Anders,
“counsel must file a brief that meets the requirements established by our
Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014)
(parallel citation omitted). Specifically, counsel’s Anders brief must comply
with the following requisites:
(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.
Id. (citation omitted).
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Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief
must be accompanied by a letter that advises the client of the option 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.”
Id. “Once counsel has satisfied the above requirements, it is then this
[c]ourt’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.
2007) (en banc) (citation and internal quotation marks omitted).
Instantly, we conclude that counsel has satisfied the technical
requirements of Anders and Santiago. Counsel has identified the pertinent
factual and procedural history and made citation to the record. Counsel has
also raised sentencing claims that could arguably support an appeal, but
ultimately concludes that the appeal is wholly frivolous. Counsel has also
attached to his petition a letter to appellant, which meets the notice
requirements of Millisock. Accordingly, we proceed to conduct an
independent review of the record to determine whether this appeal is wholly
frivolous.
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Appellant’s argument is two-fold. Appellant first contends that the
sentence of 31 months to 7 years’ imprisonment imposed by the trial court
was illegal because it exceeded the statutory maximum. (Anders brief at
10-12.) This claim is meritless.
“A challenge to the legality of a sentence . . . may be entertained as
long as the reviewing court has jurisdiction.” Commonwealth v. Wolfe,
106 A.3d 800, 802 (Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016)
(citation omitted). “If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction.”
Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.Super. 2014) (citation
omitted). “An illegal sentence must be vacated.” Id. “The determination as
to whether the trial court imposed an illegal sentence is a question of law;
our standard of review in cases dealing with questions of law is plenary.”
Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa.Super. 2012) (citation
omitted).
Instantly, appellant entered a negotiated guilty plea to one count of
robbery by threatening immediate serious bodily injury, 18 Pa.C.S.A.
§ 3701(a)(1)(ii), which is graded as a felony of the first degree. Pursuant to
18 Pa.C.S.A. § 1103(1), the maximum permissible sentence for a felony of
the first degree “shall be fixed by the court at not more than 20 years.”
(Id.) As noted, the trial court sentenced appellant in accordance with his
negotiated guilty plea to 31 months to 7 years’ imprisonment, with
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110 days’ credit for time-served. (Notes of testimony, 6/16/16 at 6-7.)
Contrary to appellant’s contention, this sentence does not exceed the lawful
maximum. Accordingly, appellant’s challenge to the legality of sentence is
meritless.
Appellant further argues that the trial court failed to comply with the
sentencing guidelines in sentencing him, which constitutes a challenge to the
discretionary aspects of his sentence. (Anders brief at 11.) Our review,
however, reveals that appellant is precluded from challenging the
discretionary aspects of his sentence because he received a negotiated
sentence. See Commonwealth v. Baney, 860 A.2d 127, 131 (Pa.Super.
2004), appeal denied, 877 A.2d 459 (2005) (appellant may not challenge
the discretionary aspects of the sentence, where the terms of the sentence
were made part of the negotiated plea).3
Based on the foregoing, we agree with counsel’s assessment that this
appeal is wholly frivolous and that appellant is entitled to no relief on his
3
We also note that appellant has waived his challenge to the discretionary
aspects of his sentence by failing to raise his claim during the sentencing
hearing or in a post-sentence motion. See Commonwealth v. Jones, 858
A.2d 1198, 1204 (Pa.Super. 2004); Pa.R.Crim.P. 720(A). The record further
reflects that appellant’s brief does not contain a Pa.R.A.P. 2119(f)
statement. While the omission of this statement does not automatically
waive the challenge, where the Commonwealth has objected to the
omission, as is the case here, we must consider the issue waived.
Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super. 2003), appeal
denied, 844 A.2d 551 (Pa. 2004); see also Commonwealth’s brief at 8-9.
Accordingly, we find that appellant has waived his challenge to the
discretionary aspects of his sentence on this basis as well.
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sentencing claims. After our own independent review of the record, we
discern no additional issues of arguable merit. Accordingly, we grant
counsel’s petition to withdraw and affirm the June 16, 2016 judgment of
sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2017
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