Com. v. Williams, T. ( 2014 )

J-S59038-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYLER EDWARD WILLIAMS, :
:
Appellant : No. 1109 EDA 2014
Appeal from the Judgment of Sentence March 6, 2014
in the Court of Common Pleas of Wayne County,
Criminal Division at No(s): CP-64-CR-0000091-2013
BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 23, 2014
Tyler Edward Williams (Appellant) appeals from the judgment of
sentence that followed his open plea of guilty to one count of bad checks.1
In addition,
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant the petition to withdraw.
The background underlying this matter can be summarized as follows.
On April 18, 2013, [Appellant] entered a[n open] plea of guilty
to one count of Bad Checks (M2). [Appellant] was ordered to
appear for sentencing. On July 5, 2013, [Appellant] failed to
appear for sentencing, and a bench warrant was issued. On
March 6, 2014, [Appellant] was sentenced to eight (8) to twenty
1
18 Pa.C.S. § 4105(a)(1).
* Retired Senior Judge assigned to the Superior Court.
J-S59038-14
Trial Court Opinion, 5/21/2014, at 1.2
On the same day he was sentenced, Appellant timely filed a counseled
motion to modify his sentence. Soon thereafter, Appellant filed a pro se
motion to modify his sentence. On March 18, 2013, the trial court entered
footnote, the
pro se motion to modify his sentence. Trial Court
Order, 3/18/2013, at n.1 (citing Commonwealth v. Ellis, 626 A.2d 1137
(Pa. 1993)).3
Appellant timely filed a notice of appeal. The trial court directed
Appellant to comply with Pa.R.A.P. 1925(b), and Appellant filed a Pa.R.A.P.
n to
withdraw his representation of Appellant and an Anders brief.
The following principles guide our review of this matter.
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
2
The court ordered Appellant to serve this sentence concurrently to a
sentence he already was serving in Luzerne County.
3
In Ellis, our Supreme Court held that criminal defendants have no
constitutional right to hybrid representation.
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J-S59038-14
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
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate's brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we hold that in the Anders brief that accompanies
court-
(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 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.
We find that counsel has complied substantially with the requirements
of Anders and Santiago. We, therefore, will undertake a review of the
appeal to determine if it is wholly frivolous.
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J-S59038-14
In his Anders brief, counsel presents one issue that might arguably
sentencing [Appellant] in the aggravated range of the Pennsylvania
sentewncing [sic Anders
Brief at 4 (unnecessary capitalization and suggested answer omitted). This
To reach 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; (2) whether the
issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant's brief
has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citations
omitted).
As we noted above, Appellant timely filed his notice of appeal.
Appellant did not object to his sentence during the sentencing hearing.
However, his counsel timely filed a motion to modify his sentence.
In that motion, Appellant asserted that the minimum sentence he
received is in the aggravated range of the sentencing guidelines. He further
cing Guidelines, the minimum
-
Sentence, 3/6/2014, at ¶4. Appellant then asked the court to reduce his
Id. at ¶5.
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In support of his request, Appellant highlighted several mitigating factors
that he presented to the trial court at his sentencing hearing.
Thus, the only challenge to the discretionary aspects of his sentence
that Appellant arguably preserved for appellate review is a claim that his
held on numerous occasions that a claim of inadequate consideration of
mi
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation
and quotation marks omitted). We see no reason to deviate from this
general rule in this case.
After a review of the record, we conclude that the only issue Appellant
preserved for appeal regarding the discretionary aspects of his sentence fails
to raise a substantial question. Consequently, we agree with counsel that
this appeal is wholly frivolous. For these reasons, we affirm the judgment of
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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