Com. v. Morris, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRENT ELI MORRIS :
:
Appellant : No. 2506 EDA 2022
Appeal from the Judgment of Sentence Entered September 15, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002862-2022
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 02, 2023
Brent Eli Morris appeals the judgment of sentence. He pleaded guilty
under the Pennsylvania Race Horse Development and Gaming Act to unlawful
taking/claiming/manipulating with intent to defraud/cheat.1 Counsel has filed
a petition to withdraw and an Anders brief.2 We affirm and grant counsel’s
petition to withdraw.
Morris entered a negotiated guilty plea to the above-referenced offense
on September 15, 2022. See Guilty Plea Statement, filed 9/15/22. The court
imposed the agreed-upon sentence of nine to 23 months’ incarceration
followed by one year reporting probation. See Certificate of Imposition of
Sentence, filed 9/15/22. It also imposed restitution in the amount of $4,000
____________________________________________
1 4 Pa.C.S.A. § 1518(a)(17).
2 Anders v. California, 386 U.S. 738 (1967).
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and ordered Morris to stay away from Harrah’s Casino. See id. This timely
appeal followed.
As stated above, Morris’s counsel has filed an Anders brief and
Application to Withdraw as Counsel. “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 pursuant Anders, counsel must file a brief that meets the
requirements of Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). 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 must provide his client with a copy of the Anders brief. Counsel
must also advise the client of the client’s 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. Orellana, 86 A.3d
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877, 880 (Pa.Super. 2014) (citation omitted). If counsel has satisfied these
requirements, this Court must then conduct “a full examination of all the
proceedings, to decide whether the case is wholly frivolous.” Commonwealth
v. Dempster, 187 A.3d 266, 271 (Pa.Super. 2018) (citation omitted)
(emphasis removed).
Here, in the Anders brief, counsel provides a procedural and factual
history of the case, with citations to the record, discusses the issues arguably
supporting the appeal, and explains why counsel concludes those issues are
frivolous. Anders Br. at 3-15. Counsel’s letter to Morris states that he
enclosed a copy of the Anders brief and advises him of his right to retain new
counsel or act on his own behalf and raise additional points before this Court.
Morris did not submit a response to the Anders brief. Counsel has met
Santiago’s requirements. We therefore turn to whether the appeal is, as
counsel alleges, wholly frivolous.
Counsel lists two issues in the Anders brief:
1. Whether the sentence of restitution should be vacated as
the restitution amount ordered was not supported by the
record[;]
2. Whether plea counsel was ineffective in failing to provide
adequate information and advi[c]e regarding the impact of
[Morris’s] guilty plea on an out-of-state detainer[.]
Anders Br. at 2.
The first issue challenges the court’s imposition of restitution. He alleges
that there was no evidence supporting the amount ordered by the court. Such
a claim challenges the discretionary aspects of sentence. See
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Commonwealth v. Weir, 239 A.3d 25, 38 (Pa. 2020). Before reviewing the
merits of a challenge to the discretionary aspects of sentence, this Court must
first determine whether: “(1) the appeal is timely; (2) the appellant has
preserved his issue; (3) his brief includes a concise statement of the reasons
relied upon for allowance of an appeal with respect to the discretionary aspects
of his sentence; and (4) the concise statement raises a substantial question
whether the sentence is inappropriate under the Sentencing Code.”
Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019).
Here, the second prong is unmet. Morris did not file a post-sentence
motion raising this discretionary sentencing issue. Therefore, he did not
preserve it for appeal. See Commonwealth v. Cartrette, 83 A.3d 1030,
1042 (Pa.Super. 2013) (en banc) (stating claims challenging discretionary
aspects of sentence must be raised in post-sentence motion or at sentencing,
and the failure to do so results in waiver). This sentencing claim is therefore
waived and wholly frivolous for direct appeal.
The ineffectiveness claim is also frivolous at this stage. Generally, a
criminal defendant cannot litigate ineffectiveness claims on direct appeal.
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), overruled in part
on other grounds, Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa.
2021) (holding that Post Conviction Relief Act (“PCRA”) petitioners “may, after
a PCRA court denies relief, and after obtaining new counsel or acting pro se,
raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so,
even if on appeal”).
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There are exceptions to the general rule: (1) in extraordinary
circumstances where claims of trial counsel’s ineffectiveness are apparent
from the record and immediate consideration best serves the interests of
justice; and (2) where there is good cause shown and unitary review of the
claim is preceded by a waiver of the right to seek review under the PCRA.
Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013). A third
exception requires “trial courts to address claims challenging trial counsel’s
performance where the defendant is statutorily precluded from obtaining
subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d 352, 361
(Pa. 2018).
None of these exceptions apply here. We therefore cannot review the
ineffectiveness claim on direct appeal. We have reviewed the record and have
found no non-frivolous claims for appeal. We therefore grant counsel’s petition
to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Date: 11/2/2023
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