Com. v. Herbert, E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERIC HERBERT
Appellant No. 3296 EDA 2018
Appeal from the Judgment of Sentence Entered October 23, 2018
In the Court of Common Pleas of Delaware County
Civil Division at No.: CP-23-CR-0004272-2014
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 06, 2020
Appellant Eric Herbert appeals from the October 23, 2018 judgment of
sentence entered in the Court of Common Pleas of Delaware County (“trial
court”) following the revocation of his probation. His counsel has filed a brief
and an application to withdraw pursuant to Anders v. California, 386 U.S.
738 (1969), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
Upon review, we affirm the judgment of sentence and grant counsel’s
application to withdraw.
The facts and procedural history of this case are undisputed. Briefly, on
September 8, 2014, Appellant pleaded guilty to resisting arrest under 18
Pa.C.S.A. § 5104, a second-degree misdemeanor that carried a maximum
sentence of two years’ imprisonment. On the same day, the trial court
sentenced Appellant to one year of probation. On October 26, 2015, following
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a Gagnon II1 hearing, the trial court resentenced Appellant to one year of
probation, to be served consecutively with his other sentences. Appellant
once again violated the terms of his probation because he failed to report to
his probation officer. At his October 23, 2018 Gagnon II hearing, Appellant
stipulated to the fact that he failed to report to his assigned agent on March
12, 2018. N.T. Hearing, 10/23/18, at 8. The trial court resentenced Appellant
to six to twenty-three months’ imprisonment. Appellant did not file any post-
sentence motion. See Pa.R.Crim.P. 708(E). He, however, timely appealed.2
On November 18, 2019, Appellant’s counsel filed in this Court an
application to withdraw as counsel and filed an Anders brief, wherein counsel
challenged the discretionary aspects of Appellant’s sentence. Specially,
counsel claimed that “the sentence of incarceration imposed in this matter on
October 23, 2018 was harsh and excessive under all the circumstances
presented in the record which, when taken together into a fair consideration,
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court determined
a two-step procedure was required before a parole or probation may be
revoked:
[A] parolee [or probationer] is entitled to two hearings, one a
preliminary hearing [Gagnon I] at the time of his arrest and
detention to determine whether there is probable cause to believe
that he has committed a violation of his parole [or probation], and
the other a somewhat more comprehensive hearing [Gagnon II]
prior to the making of a final revocation decision.
Id. at 781-82.
2 Appellant failed to comply with the trial court’s order directing him to file
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. We, however,
decline to dismiss this appeal on that basis, given the filing of the Anders
brief and application to withdraw.
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clearly indicated that probation was more warranted than imprisonment.”
Anders Brief at 3 (unnecessary capitalization omitted).
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s application to withdraw from representation
provides that counsel reviewed the record and concluded that the appeal is
frivolous. Furthermore, counsel notified Appellant that he was seeking
permission to withdraw and provided Appellant with copies of the petition to
withdraw and his Anders brief. Counsel also advised Appellant of his right to
retain new counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention. Accordingly, we conclude that counsel has
satisfied the procedural requirements of Anders.
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We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court held:
[I]n 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.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates that
he has complied with the briefing requirements of Santiago. We, therefore,
conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met his obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, we now turn to the merits
of Appellant’s appeal.
Appellant’s sole claim before us implicates the discretionary aspects of
sentencing.3 It is well-settled that “[t]he right to appeal a discretionary aspect
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3 When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless the record
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of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215,
1220 (Pa. Super. 2011). Rather, where an appellant challenges the
discretionary aspects of a sentence, an appellant’s appeal should be
considered as a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 162 (Pa. Super. 2007). As we stated in Commonwealth v.
Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e 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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Here, although Appellant timely appealed from the October 23, 2018
judgment of sentence, he failed to preserve the discretionary aspects of
sentencing claim for our review because he did not raise it before the trial
court at sentencing or in the post-sentence motion. See Pa.R.Crim.P.
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discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).
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720(A)(1); see also Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (holding objections to discretionary aspects of sentence are
generally waived if not raised at sentencing or preserved in a post-sentence
motion). In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013),
we explained that “issues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.” Cartrette, 83
A.3d at 1042 (citation omitted). Accordingly, Appellant’s sole claim
implicating the discretionary aspects of sentencing is waived.
We have conducted an independent review of the record and addressed
Appellant’s argument on appeal. Based on our conclusions above, we agree
with Appellant’s counsel that the sentencing issue Appellant seeks to litigate
in this appeal is wholly frivolous. We, therefore, affirm the judgment of
sentence and grant counsel’s application to withdraw.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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