Com. v. Price, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID PRICE,
Appellant No. 781 MDA 2014
Appeal from the Judgment of Sentence March 18, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-002357-2012
BEFORE: BOWES, WECHT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 04, 2014
David Price appeals from the judgment of sentence of twenty-two to
sixty months imprisonment that the trial court imposed after Appellant pled
guilty to robbery. Appellate counsel has filed a petition seeking to withdraw
her representation and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
which govern a withdrawal from representation on direct appeal. We grant
the petition to withdraw and affirm.
On January 9, 2012, Appellant committed an armed robbery at an
Econo Lodge in Amity Township, Berks County. Tiffany Smith was working
as a clerk when Appellant approached her, asked about rates, and left.
Appellant then returned with a weapon. Acting in conformity with
Appellant’s demands, Ms. Smith gave Appellant the drawer from Econo
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Lodge’s cash register and her money and identification. Appellant was
apprehended after police viewed surveillance footage taken of the incident.
On May 14, 2012, Appellant was charged with robbery graded as a first-
degree felony, robbery graded as a second-degree felony, simple assault,
theft, and receiving stolen property.
Appellant initially entered a guilty plea to robbery graded as a first-
degree felony in exchange for a sentence of imprisonment of twenty-two to
sixty months with boot camp eligibility. The court sentenced in accordance
with that arrangement, but Appellant subsequently discovered that he was
not eligible for boot camp due to the fact that the robbery in question was
graded as a first-degree felony. 61 Pa.C.S. § 3903 (rendering someone
convicted of first-degree felony robbery unable to participate in motivational
boot camp).
Appellant petitioned to file a motion to withdraw his guilty plea nunc
pro tunc. On March 18, 2014, that motion was granted, the court permitted
Appellant to withdraw his guilty plea, and Appellant entered a second guilty
plea to robbery graded as a second-degree felony. At that proceeding,
Appellant admitted that on January 9, 2012, while in the course of
committing a theft, he threatened Tiffany Smith with a firearm or a replica
firearm and placed Ms. Smith in fear of immediate serious bodily injury.
Then, Appellant and the Commonwealth both specifically requested
that the same sentence of twenty-two to sixty months imprisonment, which
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exceeded the applicable guideline ranges, be imposed. Specifically, the
Commonwealth stated, “The plea agreement calls for a sentence of 22 to 60
months in a state correctional institute, which is outside the guidelines
entirely.” N.T. Plea, 3/18/04, at 7. The district attorney continued that the
sentence was appropriate because the Commonwealth had agreed that
Appellant could plead guilty to a second-degree rather than a first-degree
felony. It also observed that the crime carried “a gun mandatory of five
years that the Commonwealth [had] agreed not to seek.” Id. The
prosecutor maintained that, even though the negotiated sentence exceeded
the applicable guideline ranges, it was “appropriate under the
circumstances.” Id.
Appellant’s counsel agreed with these assertions and specifically asked
the court to “go along with [the district attorney’s] statement.” Id. Defense
counsel reported that the twenty-two to sixty-month sentence was “basically
what we had agreed to the first time.” Id. Counsel represented that it was
out of character for Appellant to commit an armed robbery and concurred
that the “District Attorney’s Office [had been] willing to drop the mandatory
in this case based upon affidavits and letters written to the DA by people on
[Appellant’s] behalf.” Id.
Accordingly, on March 18, 2014, Appellant received a sentence of
twenty-two to sixty months incarceration with boot camp eligibility as well as
credit for time served. Appellant filed an untimely pro se motion to modify
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his sentence and complained that it was excessive. He also filed the within
appeal, but counsel filed the appellate brief.
Before we address the question raised on appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa.Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal.
The procedural mandates are that 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) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court's attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Counsel’s petition
to withdraw sets forth the following. Counsel reviewed the record as well as
pertinent legal authority and believed that there are no non-frivolous issues
to be raised on appeal. Counsel notified Appellant of her request to
withdraw and forwarded to Appellant a copy of the brief as well as the
petition to withdraw. Counsel sent a letter to Appellant advising him of his
right to submit on his own behalf additional arguments or comments and of
his right to retain new counsel to pursue this appeal. Thus, counsel satisfied
the procedural requirements for withdrawal.
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We now examine whether the brief comports with the Supreme Court’s
dictates in Santiago, supra, which provides that
in the Anders brief that accompanies court-appointed counsel's
petition to withdraw, counsel 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.
Cartrette, supra at 1032 (quoting Santiago, supra at 361).
Counsel’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case and establishes why Appellant’s issue
lacks merit. Applicable legal authority is provided. We now examine the
merits of the issue raised and, after reviewing that contention, we will
independently review the record in order to determine if counsel’s
assessment of the frivolity of the present appeal is correct. Cartrette,
supra. Appellant raises one issue for our review:
Whether Price’s sentence of 22 months – 60 months in a state
correctional institution was manifestly excessive, clearly
unreasonable, and contrary to the fundamental norms
underlying the Sentencing Code, where (1) the court imposed a
sentence beyond the aggravated guideline range without stating
sufficient reasons on the record for the upward deviation and (2)
the court did not consider mitigating factors including the
absence of a prior criminal record, cooperation with authority
upon arrest, demonstrating remorse for the crime committed, no
misconduct during incarceration and gainful employment
available upon release from incarceration, all in violation of 42
Pa.C.S.A. § 9721(b)?
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Appellant’s brief at 5.
These averments all relate to the discretionary aspects of the
sentence. As appellate counsel notes, Appellant and the Commonwealth
agreed that Appellant would be sentenced to twenty-two to sixty months
incarceration. Since Appellant entered a negotiated guilty plea to a sentence
that did not exceed the lawful maximum and since he was sentenced in
accordance with the plea, he cannot challenge the discretionary aspects of
the sentence imposed. Commonwealth v. Reichle, 589 A.2d 1140
(Pa.Super. 1991).
We also observe that the issue in question was not preserved since it
was not raised at sentencing or in a post-sentence motion. While Appellant
did file an untimely pro se motion to modify his sentence, Appellant was
represented when the motion was filed. Hence, the pro se motion to modify
the sentence was a legal nullity, and it did not operate to preserve his
discretionary sentencing claims. Commonwealth v. Nischan, 928 A.2d
349, 355 (Pa.Super. 2007).
We also have conducted an independent review of the record and
agree with counsel’s assessment that there are no preserved challenges to
the plea or sentence. Hence, we concur with counsel’s assessment that the
issue is wholly frivolous, grant the petition to withdraw, and affirm.
Petition of Amy J. Shaffer, Esquire, to withdraw as counsel is granted.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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