Com. v. Rose, G. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
GIANNA MARIE ROSE, :
:
Appellant : No. 2059 EDA 2019
Appeal from the Judgment of Sentence Entered June 13, 2019
in the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000390-2018,
CP-52-CR-0000401-2018, CP-52-CR-0000402-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 07, 2020
Gianna Marie Rose (“Rose”) appeals from the judgment of sentence
imposed following her negotiated guilty plea to criminal conspiracy and drug
delivery resulting in death at Pike County docket number 390-2018 (“390-
2018”), and delivery of a controlled substance at Pike County docket
numbers 401-2018 (“401-2018”) and 402-2018 (“402-2018”).1 Additionally,
Rose’s counsel, Lindsey Collins, Esquire (“Attorney Collins”), has filed a
Petition to Withdraw as counsel and an accompanying brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967). We grant Attorney
Collins’s Petition to Withdraw and affirm Rose’s judgment of sentence.
____________________________________________
1 18 Pa.C.S.A. §§ 903(a)(1), 2506(a); 35 P.S. § 780-113(a)(30).
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On April 18, 2019, Rose entered a guilty plea to the above-mentioned
offenses. On June 13, 2019, the trial court sentenced Rose, at 390-2018, to
66 months to 12 years in prison for the charge of criminal conspiracy and a
consecutive term of 78 months to 13 years in prison for the charge of drug
delivery resulting in death; and at 401-2018 and 402-2018, to 6 to 12
months in prison at each, to be served concurrently with each other and the
charges at 390-2018. Rose did not file any post-sentence motions. Rose
filed timely Notices of Appeal, one at each docket number, and with all three
docket numbers listed on each. Rose additionally filed a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On August 9, 2019, this Court issued a Rule to Show Cause why Rose’s
appeal should not be quashed in light of Commonwealth v. Walker, 185
A.3d 969, 977 (Pa. 2018) (stating that “when a single order resolves issues
arising on more than one lower court docket, separate notices of appeal
must be filed. The failure to do so will result in quashal of the appeal.”
(citing Pa.R.A.P. 341)). See also Commonwealth v. Creese, 216 A.3d
1142, 1144 (Pa. Super. 2019) (quashing an appeal, pursuant to Walker,
where the appellant filed a notice of appeal at each docket number, but each
notice of appeal contained multiple docket numbers). Attorney Collins did
not file a response. On August 21, 2019, Attorney Collins filed a “Petition for
Leave of Court to Amend the Notice of Appeal and Submit Nunc Pro Tunc.”
On October 4, 2019, this Court entered an Order informing the parties that
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disposition of the Walker issue and Attorney Collins’s Petition would be
deferred to the merits panel.
Subsequently, this Court granted en banc review of two cases to
address the issue presented by Walker and Creese; i.e., whether the
inclusion of multiple docket numbers on a notice of appeal violates Walker
and Pa.R.A.P. 341. See Commonwealth v. Johnson, 2020 Pa. Super. 164,
at *4 (Pa. Super. filed July 9, 2020) (en banc); Commonwealth v. Larkin,
2020 Pa. Super. 163, at *3 (Pa. Super. filed July 9, 2020) (en banc). On July
9, 2020, this Court in Johnson and Larkin held that where separate notices
of appeal are filed at each docket number, the inclusion of multiple docket
numbers on each notice of appeal does not invalidate the notices of appeal,
thereby overruling Creese, and declined to quash the appeals. See
Johnson, 2020 Pa. Super. 164, at *12; Larkin, 2020 Pa. Super. 163, at *3.
Instantly, Rose filed three notices of appeal, one at each docket, and
each of which contained all three docket numbers. Pursuant to Johnson
and Larkin, we conclude that Rose has complied with Walker and Pa.R.A.P.
341.
Before addressing Rose’s claim on appeal, we must determine whether
Attorney Collins has complied with the dictates of Anders and its progeny in
petitioning to withdraw from representation. See Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen
presented with an Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw.”).
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Pursuant to Anders, when counsel believes that an appeal is frivolous
and wishes to withdraw from representation, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citation omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court must then “conduct a simple review of
the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
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Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
In the instant case, our review of the Anders Brief and the Petition to
Withdraw reveals that Attorney Collins has substantially complied with each
of the requirements of Anders/Santiago. See Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Attorney Collins
indicates that she has made a conscientious examination of the record and
determined that an appeal would be frivolous. Further, Attorney Collins’s
Anders Brief comports with the requirements set forth by the Supreme
Court of Pennsylvania in Santiago. Finally, Attorney Collins provided Rose
with a copy of the Anders Brief, and advised her of her rights to proceed
pro se, retain new counsel, or raise any additional points deemed worthy of
the Court’s attention. Thus, Attorney Collins has complied with the
procedural requirements for withdrawing from representation. We next
examine the record and make an independent determination of whether
Rose’s appeal is, in fact, wholly frivolous.
Attorney Collins presents the following issue, on behalf of Rose, for our
review: “Whether the trial court erred in imposing an excessive sentence
when sentencing [Rose] at the highest range of the sentencing guidelines on
the charges of drug delivery resulting in death and criminal conspiracy to
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commit drug delivery resulting in death?” Anders Brief at 7 (capitalization
omitted).
This issue challenges the discretionary aspects of Rose’s sentence. “A
challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,
815 (Pa. Super. 2017). Prior to reaching the merits of a discretionary
sentencing issue,
[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).
Grays, 167 A.3d at 815-16 (citation omitted).
Rose, via Attorney Collins, filed a timely Notice of Appeal. However,
Rose failed to preserve her claim in a post-sentence motion. See
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (stating
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.”); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the lower court are waived and cannot
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be raised for the first time on appeal.”).2 Moreover, we are unable to review
Rose’s claim, because Rose has failed to request with the trial court, and
include in the certified record, the transcript for Rose’s sentencing hearing.
See Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (stating
that “it is an appellant’s duty to ensure that the certified record is complete
for purposes of review. … [F]ailure to ensure that the record provides
sufficient information to conduct a meaningful review constitutes waiver of
the issue sought to be reviewed.” (citation and quotation marks omitted)).
Accordingly, Rose’s claim is waived.
Finally, our independent review of the record discloses no additional
non-frivolous issues that could be raised on appeal. See Dempster, supra.
We therefore grant Attorney Kelly’s Petition, and affirm Rose’s judgment of
sentence.
Petition to Withdraw granted. Petition for Leave of Court to Amend the
Notice of Appeal denied as moot. Judgment of sentence affirmed.
____________________________________________
2 We note that Attorney Collins also did not include a Rule 2119(f) statement
within the Anders brief. See Grays, supra. Nevertheless, we decline to
waive Rose’s claim on this ground because the Commonwealth has not
objected to this deficiency. See Commonwealth v. White, 193 A.3d 977,
982 (Pa. Super. 2018) (declining to waive an appellant’s claim for failure to
include a Rule 2119(f) statement where the Commonwealth did not object).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/20
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