Com. v. Smith, J. ( 2017 )

J-S55021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JEREMIAH SMITH
Appellant No. 490 MDA 2017
Appeal from the Judgment of Sentence March 8, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002630-2016, CP-40-CR-0002733-
2016
BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 02, 2017
Appellant, Jeremiah Smith, appeals from the judgment of sentence of
ninety-six to two hundred forty months, imposed March 8, 2017, following
an open guilty plea resulting in his conviction for two counts of robbery and
one count each of aggravated assault and firearms not to be carried without
a license.1 Additionally, Appellant’s counsel, Matthew P. Kelly, Esq., seeks to
withdraw his representation of Appellant pursuant to Anders v. California,
87 S. Ct. 1936 (1967), and Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009). We affirm and grant counsel’s petition to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3701(a)(1)(ii), 2702(a)(4), and 6106(a)(1).
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On December 16, 2016, Appellant pleaded guilty to the
aforementioned charges. On March 8, 2017, Appellant appeared before the
court for sentencing. The court sentenced Appellant to standard range
sentences resulting in an aggregate term of ninety-six to two hundred forty
months of incarceration. Appellant was advised of his post sentence rights
but failed to file a post sentence motion.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The court issued a responsive
opinion, finding that Appellant’s challenge to the discretionary aspects of his
sentence was waived for failure to file a post-sentence motion.
In this court, Appellant’s counsel has filed an Anders brief, asserting a
single issue that Appellant might seek to raise: whether the trial court
abused its discretion in sentencing Appellant. See Appellant’s Brief at 1.
When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on
direct appeal under Anders, counsel must file a brief that meets the
requirements established by the Pennsylvania Supreme Court in Santiago,
namely:
(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;
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(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, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, only then may this Court “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In the instant matter, Attorney Kelly’s Anders brief complies with the
above-stated requirements. Namely, he includes a summary of the relevant
factual and procedural history; he refers to the portions of the record that
could arguably support Appellant’s claims; and he sets forth his conclusion
that Appellant’s appeal is frivolous. He explains his reasoning and supports
his rationale with citations to the record as well as pertinent legal authority.
Attorney Kelly avers he has supplied Appellant with a copy of his Anders
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brief and a letter explaining the rights enumerated in Nischan. Accordingly,
counsel has complied with the technical requirements for withdrawal. Thus,
we may independently review the record to determine if the issues Appellant
raises are frivolous and to ascertain if there are other non-frivolous issues he
may pursue on appeal.
The sole issue counsel potentially raises on Appellant’s behalf is a
challenge to the discretionary aspects of his sentence. See Appellant’s Brief
at 10-14. A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal. See Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.
2119(f). This Court conducts a four-part analysis to determine: (1) whether
Appellant has timely filed a 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, 42 Pa.C.S. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
Appellant timely filed a notice of appeal but did not preserve his
discretionary challenge in a post sentence motion and, accordingly, has
waived his sole issue for purposes of appeal. See Leatherby, 116 A.3d at
83. In short, we agree with Attorney Kelly that Appellant’s issue is frivolous.
We have independently reviewed the record and find no other issues of
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arguable merit that he could pursue on appeal. Accordingly, we affirm
Appellant’s judgment of sentence and grant counsel’s petition to withdraw.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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