Com. v. Constantini, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID FRANCIS CONSTANTINI :
:
Appellant : No. 3135 EDA 2018
Appeal from the Judgment of Sentence Entered October 10, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000744-2011
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 07, 2019
David Francis Constantini (Appellant) appeals from the judgment of
sentence imposed following the revocation of his probation and resentencing.
Appellant’s appellate counsel (Counsel) seeks to withdraw from representation
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant Counsel’s
petition to withdraw and affirm Appellant’s judgment of sentence.
On April 12, 2012, a jury found Appellant guilty of retail theft and
receiving stolen property. On June 26, 2012, the trial court sentenced
Appellant to an aggregate term of two to four years of incarceration followed
by 3 years of probation.
On August 2, 2012, while still under supervision, Appellant pled guilty
to possession of a controlled substance, possession of drug paraphernalia,
possession with intent to deliver, and criminal conspiracy at docket number
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CP-23-CR-3160-2017. Consequently, on October 10, 2018, the trial court
held a Gagnon II hearing,1 at the conclusion of which the court found
Appellant in violation of his supervision, revoked his probation, and imposed
a new sentence of two to four years of incarceration. On October 11, 2018,
Appellant filed a timely pro se notice of appeal and on October 15, 2018, he
filed a pro se post-sentence motion for reconsideration of sentence, which was
denied by operation of law.2
On appeal, Counsel has filed an Anders brief and a petition to withdraw.
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
____________________________________________
1 The Gagnon II hearing requires two inquiries: (1) whether the probationer
has in fact violated one of the conditions of his probation, and, if so, (2) should
the probationer “be recommitted to prison or should other steps be taken to
protect society and improve chances of rehabilitation[.]” Gagnon v.
Scarpelli, 411 U.S. 778, 784 (1973).
2 During his violation of probation proceedings, Appellant was represented by
Jeffrey Bauer, Esquire; on appeal, Appellant is represented by Patrick
Connors, Esquire. In the interim, Appellant filed his notice of appeal and post-
sentence motion pro se.
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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 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
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proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.
Instantly, we conclude that Counsel has complied with the above
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. Application to Withdraw Appearance, 2/22/19, ¶ 3. 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 4-7. Counsel’s brief sets
forth his conclusion that the appeal is frivolous and includes citation to
relevant authority. See id. at 7. 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. We therefore turn to the merits.
The single issue presented by Counsel in the Anders brief is whether
Appellant’s new sentence of two to four years of incarceration was harsh and
excessive under the circumstances. This issue challenges the discretionary
aspects of Appellant’s sentence.
“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).
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“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). “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, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(quotations and citations omitted).
Although Appellant preserved his sentencing claim by filing a post-
sentence motion and a timely notice of appeal, and the Anders brief includes
a Pa.R.A.P. 2119(f) statement, we conclude that Appellant’s simple assertion
that his sentence was excessive and harsh under the circumstances does not
present a substantial question. See Commonwealth v. Fisher, 47 A.3d 155,
159 (Pa. Super. 2012) (“[A] bald assertion that a sentence is excessive does
not by itself raise a substantial question justifying this Court’s review of the
merits of the underlying claim.”). Appellant’s claim does not challenge a
specific provision of the sentencing code nor does it cite any particular
fundamental norm underlying the sentencing process that Appellant believes
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has been violated. Appellant’s sentencing claim amounts to an
unsubstantiated assertion that his sentence was excessive. Because Appellant
does not present a substantial question for our review, “we will not review his
sentencing claim.” See id.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
to be wholly frivolous and permit Counsel to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/19
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