Com. v. Bartley, A. ( 2018 )

J-S07007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
AMBER NICHELLE BARTLEY,
Appellant No. 132 EDA 2017
Appeal from the Judgment of Sentence Entered November 29, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005460-2016
BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 11, 2018
Appellant, Amber Nichelle Bartley, appeals from the aggregate
judgment of sentence of time served to 23 months’ incarceration, followed by
1 year probation, imposed after she pled guilty to fleeing or attempting to
elude a police officer, receiving stolen property, and possession of a controlled
substance. On appeal, Appellant seeks to challenge the discretionary aspects
of her sentence. Additionally, Appellant’s counsel, Patrick J. Connors, Esq.,
seeks to withdraw his representation of Appellant pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.
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The facts underlying Appellant’s convictions are not pertinent to our
disposition of her appeal. The trial court briefly summarized the procedural
history of her case, as follows:
On November 29, 2016, [Appellant] … entered a negotiated
guilty plea to Count 1, Fleeing or Attempting to Elude Officer;
Count 2, Receiving Stolen Property; and Count 5, Possession of a
Controlled Substance. [] Appellant was sentenced on November
29, 2016[,] … to time served (06/09/16 to 07/27/16) to 23
months[’ incarceration,] followed by one year consecutive
probation on Count 1; 3 years[’] probation concurrent to Count 1
on Count 2; and time served (06/09/16 to 07/27/16) to 12
months[’ imprisonment] concurrent to Counts 1 and 2 with a fine
of $500.00 on Count [3]. Appellant, through her counsel,
[Attorney] Connors, timely filed a Notice of Appeal to the Superior
Court.
The [c]ourt directed Appellant to file a [Pa.R.A.P. 1925(b)]
Statement of Matters Complained of on Appeal and in response[,]
on January 19, 2017, counsel for Appellant filed a statement
indicating [counsel’s] intent to file an Anders brief with the
Superior Court pursuant to Pa.R.A.P. 1925(c)(4).
Trial Court Opinion, 10/13/17, at 1-2 (footnote and emphasis omitted).
Because counsel filed a Rule 1925(c)(4) statement, the trial court did not
address the merits of any claims in its Rule 1925(a) opinion.
On December 27, 2017, Attorney Connors filed with this Court a petition
to withdraw his representation of Appellant, as well an Anders brief. Therein,
counsel states that the only issue that could arguably support Appellant’s
appeal is a claim that her “aggregate sentence[, which] will keep [Appellant]
under parole supervision for 3 years[,] is harsh and excessive under the
circumstances” of her case. Anders Brief at 8. However, for reasons
discussed infra, counsel concludes that Appellant’s issue is frivolous, and he
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also states that Appellant has no other, non-frivolous issues she could pursue
herein.
It is well-established that,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right 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.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
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by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted).
In this case, Attorney Connors’ Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claim, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Connors also states in his petition to
withdraw that he has supplied Appellant with a copy of his Anders brief.
Additionally, he attached to his petition to withdraw a letter directed to
Appellant in which he informs Appellant of the rights enumerated in Nischan.
Accordingly, counsel has complied with the technical requirements for
withdrawal. We will now independently review the record to determine if
Appellant’s issue is frivolous, and to ascertain if there are any other, non-
frivolous issues she could pursue on appeal.
According to Attorney Connors, the only issue that could arguably
support Appellant’s appeal is a claim that her sentence is excessive because
she had no prior convictions, she had “13 years of formal education at the
time of the guilty plea hearing[,]” and she “took full responsibility for the
crime” by pleading guilty. Anders Brief at 8. Counsel concludes, however,
that this issue “is frivolous since the sentence was imposed in accordance with
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a negotiated guilty plea. This precludes questions regarding its discretionary
aspects.” Id. (citing Commonwealth v. O’Malley, 957 A.2d 1265 (Pa.
Super. 2008)). In O’Malley, this Court declared that, “[o]ne who pleads
guilty and receives a negotiated sentence may not then seek discretionary
review of that sentence.” O’Malley, 957 A.2d at 1267 (citing
Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994)).
Accordingly, we agree with Attorney Connors that Appellant’s sentencing claim
is frivolous.
Additionally, our independent review of the record reveals no other,
non-frivolous issues that Appellant could present herein. Therefore, we affirm
her judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/18
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