Com. v. Darder, C. ( 2017 )

J-S09017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHELCIE DARDER
Appellant No. 2628 EDA 2016
Appeal from the Judgment of Sentence July 22, 2016
In the Court of Common Pleas of Pike County
Criminal Division at No: CP-52-CR-0000543-2013
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 19, 2017
Appellant, Chelcie Darder, appeals from the July 22, 2016 judgment of
sentence entered in the Court of Common Pleas of Pike County (“trial court”)
following a negotiated guilty plea to retail theft and possession of drug
paraphernalia.1 Counsel for Appellant has filed a brief in accordance with
Anders v. California, 368 U.S. 738 (1969), concurrently with an
application to withdraw as counsel. Following review, we grant counsel’s
application for leave to withdraw and affirm the judgment of sentence.
The factual and procedural history is undisputed and the trial court
summarized it as follows.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3929, and 35 P.S. § 780-113, respectively.
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On January 6, 2014, the Commonwealth filed its Criminal
Information charging [Appellant] with one count of Retail Theft
(M-1) and one count of Possession of Drug Paraphernalia (M).
On January 23, 2015, [Appellant] executed a written Guilty Plea
Colloquy whereby she entered a plea of guilty to each of the
aforementioned criminal charges. The written Guilty Plea
Colloquy included a negotiated agreement with the
Commonwealth that the sentence to be imposed on the Retail
Theft charge would be “time served to 1 year.” Guilty Plea
Colloquy, p. 1 (emphasis added). The negotiated, recommended
sentence on the Possession charge was 1 year of Probation to
run consecutive to the sentence imposed on the Retail Theft
charge. The determination of the costs and fines to be imposed
on both charges was left to the discretion of the [trial court].
[Appellant] subsequently appeared before the [trial court] with
her counsel and acknowledged, under oath, the entry of her
guilty plea. The [trial court] accepted [Appellant’s] guilty plea
having found it to have been entered knowingly, intelligently[,]
and voluntarily.
On July 22, 2016, after [Appellant] had failed to appear for
a previously scheduled Sentencing Hearing, the [trial court] held
a Sentencing Hearing at which time [Appellant] was present with
counsel. [Appellant] appeared by video-conferencing from the
Pike County Correctional Facility since she was initially being
arraigned on a bench warrant for failing to appear at the
previously scheduled sentencing hearing. The [trial court]
vacated the bench warrant and [Appellant] and her attorney
agreed to proceed with sentencing. [Appellant’s] counsel
conducted an oral colloquy of his client’s sentence, post-
sentence[,] and appellate rights prior to imposition of sentence.
The [trial court] also questioned [Appellant] as to her right to be
present in court for her sentencing hearing after which she
voluntarily waived her right to be present in court. See
Pa.R.Crim.P. 119(B).
After affording counsel and [Appellant] an opportunity to
be heard and noting the review of a pre-sentence investigative
report, the [trial court] proceeded to enter a sentence in the
matter as follows. The [trial court] sentenced [Appellant] on
Retail Theft to a period of incarceration in the Pike County Jail of
not less than 31 days to no more than 12 months. The [trial
court] also sentenced [Appellant] on the Possession charge to a
period of 12 months of probation supervision to run consecutive
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to the sentence imposed on the Retail Theft charge. The [trial
court] also granted [Appellant] credit for 31 days’ time served
and thus immediate parole subject to her signing of her parole
conditions with the Pike County Probation Department and
submission of a suitable home plan.
On August 22, 2016, [Appellant] filed her timely Notice of
Appeal to the Pennsylvania Superior Court from the July 22,
2016 Sentencing Order. On August 26, 2016, [the trial court]
entered an Order directing [Appellant] to file a Concise
Statement of Matters Complained of on Appeal within 21 days
thereof. On September 16, 2016, [Appellant] filed a Concise
Statement of Matters Complained of on Appeal.
Trial Court Opinion, 9/23/2016, at 1-3. The trial court issued a Pa.R.A.P.
1925(a) opinion on September 23, 2016. Appellant’s counsel filed, in this
Court, an application to withdraw as counsel and an Anders brief on
November 8, 2016, wherein counsel raises one issue which counsel deems
frivolous: “Whether the [trial court] abused its discretion by imposing a
sentence in this matter that is harsh and excessive based on the
circumstances.” Anders Brief at 6.
Before this Court can review the merits of the underlying issues, we
must first address counsel’s application to withdraw. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). In order for
court-appointed counsel to withdraw, counsel must
(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) file a brief
referring to anything that arguably might support the appeal but
which does not resemble a “no-merit” letter or amicus curiae
brief; and (3) furnish a copy of the brief to the defendant and
advise the defendant of his or her right to retain new counsel or
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raise any additional points that he or she deems worthy of the
court’s attention.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).
Upon review, we conclude counsel has satisfied the procedural
requirements set forth in Anders. In the brief, counsel explains her
conclusion that the issue sought to be raised by Appellant is wholly frivolous.
Further, Counsel sent Appellant a letter, along with a copy of the Anders
brief, dated November 4, 2016, advising Appellant of her right to retain new
counsel or act on her own behalf.
After finding that counsel has complied with the procedural
requirements of Anders, this Court must address whether counsel’s brief
satisfied the following substantive requirements:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record 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).
In the Anders brief, counsel has included a statement of the case
which includes the procedural history of the case. Anders Brief at 7.
Therefore, counsel has complied with the first requirement.
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The second requirement is to reference anything in the record that
counsel believes arguably supports the appeal. See Santiago, 978 A.2d at
361. Here, counsel raises one issue: whether the trial court abused its
discretion by imposing a sentence in the aggravated range that is harsh and
excessive based on the circumstances. Anders Brief at 10. Counsel,
therefore, has satisfied the second Anders requirement.
The third substantive requirement of Anders is for counsel to state
her conclusion that the appeal is frivolous, which counsel complied with in
her brief. Id. at 9. The final element requires counsel to provide her
reasons for concluding that the appeal is frivolous. Santiago, 978 A.2d at
361. Counsel complied with this requirement and satisfied the final prong of
the Anders test. 2 Anders Brief at 9-10.
We find counsel has satisfied the requirements for a petition to
withdraw. She complied with the procedural requirements, advised
Appellant of her right to retain substitute counsel or to proceed pro se to
bring any additional points to this Court's attention. Thus, we must address
the substantive issues raised by Appellant.
Appellant’s sole claim is a challenge to the discretionary aspects of
sentencing. Anders Brief at 6. “Generally, a plea of guilty amounts to a
waiver of all defects and defenses except those concerning the jurisdiction of
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2
Counsel’s brief addresses the issue raised by Appellant; however, the
analysis by counsel was inartful, sloppy, and scarcely addresses the issue.
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the court, the legality of the sentence, and the validity of the guilty plea.”
Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991)
(citations omitted). Moreover, “[w]here the plea agreement contains a
negotiated sentence which is accepted and imposed by the sentencing court,
there is no authority to permit a challenge to the discretionary aspects of
that sentence.” Id. As Appellant pled guilty and was sentenced to an
agreed upon sentence, she cannot challenge the discretionary aspects of
sentencing. Appellant’s claim is meritless.
As counsel has complied with the technical requirements of Anders
and Santiago, this Court must “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). Upon review, we do not discern any non-frivolous issues that
Appellant could have raised. We therefore grant counsel’s application to
withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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