Com. v. Noel, D. ( 2019 )

J-S81023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESEREA LITA NOEL :
:
Appellant : No. 1366 MDA 2018
Appeal from the Judgment of Sentence Entered July 18, 2018
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000403-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESEREA LITA NOEL :
:
Appellant : No. 1367 MDA 2018
Appeal from the Judgment of Sentence Entered July 18, 2018
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000826-2017
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 25, 2019
Appellant, Deserea Lita Noel, appeals from the July 18, 2018 Judgments
of Sentence entered in the Franklin County Court of Common Pleas following
a hearing. Appellant challenges the discretionary aspects of her violation of
probation (“VOP”) sentences. Appellant’s counsel has filed an Anders1 Brief,
together with a Petition to Withdraw as Counsel. After careful review, we
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1 Anders v. California, 386 U.S. 738 (1967).
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* Former Justice specially assigned to the Superior Court.
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affirm Appellant’s Judgment of Sentence and grant counsel’s Petition to
Withdraw.
On March 23, 2016, Appellant entered a guilty plea at docket number
403-2016 to one count of Retail Theft.2 The court sentenced Appellant to one
year of intermediate punishment, 50 hours of community service, and
attendance at a shoplifting class.
On August 5, 2016, the court found Appellant in violation of her
intermediate punishment sentence. The court granted Appellant a medical
furlough due to her pregnancy, after which it sentenced Appellant on
September 14, 2016, to 6 to 23 months’ incarceration followed by 24 months’
probation. On October 7, 2016, Appellant was paroled.
On February 2, 2017, while on parole, Appellant was involved in an
incident that resulted in police charging her at docket number 826-2017 with,
inter alia, Conspiracy to Commit Simple Assault.3 It also resulted in Appellant
violating her parole. The VOP court, thus, resentenced her to a period of
incarceration on March 27, 2017. On July 26, 2017, the court again paroled
Appellant.
On October 25, 2017, Appellant entered a guilty plea at a docket number
826-2017 to the Conspiracy charge. The court sentenced Appellant at this
docket number to 24 months of intermediate punishment, with immediate
____________________________________________
2 18 Pa.C.S. § 3929(a)(1).
3 18 Pa.C.S. § 903.
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release to a drug treatment program. The Good Wolf Treatment Court
admitted Appellant into its program.
On July 18, 2018, Appellant admitted to violating the terms of her
supervision by being unsuccessfully discharged from the Good Wolf Treatment
Court program and for twice testing positive for unlawful substances.
Following a hearing, the VOP court revoked Appellant’s parole and sentenced
Appellant to a term of 2 to 5 years’ incarceration for her Retail Theft conviction
and a concurrent term of 1 to 2 years’ incarceration for her Conspiracy to
Commit Simple Assault conviction.
Appellant did not file a Post-Sentence Motion. She did, however, timely
appeal from each of her Judgments of Sentence.4 Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
On October 31, 2018, counsel filed the Anders Brief and Petition to
Withdraw as Counsel. Appellant did not file a pro se or counselled response
to either the Brief or the Petition.
As a preliminary matter, we address counsel’s Petition to Withdraw.
“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 for counsel to withdraw from an appeal pursuant to
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4 This Court consolidated Appellant’s appeal sua sponte. See Pa.R.A.P. 513.
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Anders, our Supreme Court has determined that counsel must meet certain
requirements, including:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, counsel has complied with all of the requirements
of Anders as articulated in Santiago. Additionally, counsel confirms that he
sent Appellant a copy of the Anders Brief, as well as a letter explaining to
Appellant that she has the right to proceed pro se or the right to retain new
counsel. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super
2005) (describing notice requirements). Counsel appended a copy of the
letter to his Petition to Withdraw.
Because counsel has satisfied the above requirements, it is now this
Court’s duty to conduct an independent review of the record to discern if there
are any additional, non-frivolous issues overlooked by counsel and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.
See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (noting that Anders requires the reviewing court to “review ‘the case’
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as presented in the entire record with consideration first of issues raised by
counsel.”).
We first address the issue raised by counsel in the Anders Brief:
Did the trial court abuse its discretion when it sentenced
[Appellant] to a sentence of 24 months to 60 months in a state
correctional institution in case 403-2016 and concurrently to a
sentence of 12 months to 24 months in a state correctional
institution in case 826-2017[?]
Anders Brief at 8 (some capitalization omitted).
Instantly, Appellant claims that the court’s imposition of a sentence of
state incarceration was manifestly unreasonable. Anders Brief at 13. She,
thus, challenges the discretionary aspects of her sentence. See
Commonwealth v. Fullin, 892 A.2d 843, 847-52 (Pa. Super. 2006)
(considering a challenge to a trial court’s decision to commit an offender to a
state prison instead of a county facility as a challenge to the discretionary
aspects of the sentence). A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a matter of right.
Commonwealth v. Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001). Prior
to reaching the merits of a discretionary sentencing issue:
We conduct a four[-]part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
[Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.[] § 9781(b).
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In this case, Appellant filed a timely Notice of Appeal, and her Brief
includes a Pa.R.A.P. 2119(f) Statement. However, Appellant failed to raise
her challenge to the discretionary aspects of her VOP sentences at the
sentencing hearing or in a Post-Sentence Motion.5 Thus, Appellant has waived
this claim. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010) (reiterating that “[o]bjections to the discretionary aspects of a sentence
are generally waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed”).
Judgments of Sentence affirmed. Petition to Withdraw as Counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2019
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5 Prior to the VOP court imposing Appellant’s VOP sentences, her counsel
informed the court that she “would very much like to be able to be kept
local[.]” N.T. Sentencing, 7/18/18, at 4. However, Appellant did not
challenge the court’s VOP sentences on the record after the court imposed
them.
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