Com. v. Robinson, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STEVELAND EDWARD ROBINSON, :
JR. :
: No. 977 WDA 2020
Appellant
Appeal from the Judgment of Sentence Entered January 22, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001537-2019
BEFORE: LAZARUS, J., MURRAY, J. and COLINS, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 1, 2021
Steveland Edward Robinson, Jr., appeals, nunc pro tunc, from the
judgment of sentence, imposed in the Court of Common Pleas of Erie County,
after he entered a plea of guilty but mentally ill to one count of criminal
attempt—murder.1 Counsel has filed an Anders2 brief and a petition to
withdraw from her representation of Robinson. Upon review, we grant
counsel’s petition to withdraw and affirm Robinson’s judgment of sentence.
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1 18 Pa.C.S.A. § 901(a).
2 Anders v. California, 386 U.S. 738 (1967).
See also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
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On November 8, 2019, Robinson entered an open plea of guilty but
mentally ill to attempted murder.3 On January 22, 2020, the trial court
imposed a standard-range sentence of 10 to 20 years’ imprisonment.
Robinson did not file post-sentence motions or an appeal. On motion of
counsel, Robinson’s appellate rights were reinstated, nunc pro tunc, on August
18, 2020. Robinson filed a notice of appeal, nunc pro tunc, on September 15,
2020. On October 13, 2020, counsel filed a statement of intent to file an
Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Robinson raises the following
claim for our review: “Whether [Robinson’s] sentence is manifestly excessive,
clearly unreasonable[,] and inconsistent with the objectives of the Sentencing
Code?” Brief of Appellant, at 3.
Prior to reviewing Robinson’s claim, we must determine if counsel has
complied with the procedural requirements for withdrawal. In order to
withdraw pursuant to Anders, counsel must: (1) petition the Court for leave
to withdraw, certifying that after a thorough review of the record, counsel has
concluded the issues to be raised are wholly frivolous; (2) file a brief referring
to anything in the record that might arguably support an appeal; and (3)
furnish a copy of the brief to the appellant and advise him of his right to obtain
new counsel or file a pro se brief raising any additional points that the
appellant deems worthy of review. Commonwealth v. Hernandez, 783
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3 On July 3, 2018, Robinson slit the throat of Whitnie Sullivan with a box cutter
or knife at a Walgreen’s in the City of Erie. See N.T. Guilty Plea Hearing,
11/8/19, at 13-14.
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A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), the Pennsylvania Supreme Court held that, in order to
withdraw under Anders, counsel must also state her reasons for concluding
her client’s appeal is frivolous.
Instantly, counsel’s petition states that she has made a conscientious
examination of the record and determined the appeal is wholly frivolous.
Counsel indicates that she supplied Robinson with a copy of the Anders brief
and a letter explaining his right to proceed pro se, or with privately-retained
counsel, and to raise any other issues he believes might have merit.4 In the
Anders brief, counsel sets out one issue of arguable merit and, pursuant to
the dictates of Santiago, explains why she believes the appeal to be frivolous.
Thus, counsel has substantially complied with the requirements for
withdrawal. We now turn to our independent review of the record to
determine whether Robinson’s appeal is wholly frivolous.
Robinson alleges that his sentence is manifestly excessive, clearly
unreasonable, and inconsistent with the objectives of the Sentencing Code.
This claim is a challenge to the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right. Commonwealth v. Tukhi, 149 A.3d 881,
888 (Pa. Super. 2016). Rather, an appellant challenging the discretionary
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4Robinson has not filed a response to counsel’s petition to withdraw or
Anders brief.
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aspects of his sentence must invoke this Court’s jurisdiction by satisfying a
four-part test. Id.We 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.[ ] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, Robinson has satisfied the first requirement by timely filing a
notice of appeal, nunc pro tunc. To satisfy the second requirement regarding
preservation, we point out that “[o]bjections to the discretionary aspects of a
sentence are generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.” Id. Robinson did not raise
the issue at his sentencing hearing, nor did he file a motion to modify his
sentence.5 Therefore, he has waived this issue for failing to preserve it. An
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5 In July 2020, Robinson sent a letter to the Erie County Public Defender’s
Office stating that he had requested that his lawyer file post-sentence motions
and an appeal, but counsel failed to do so. Accordingly, he requested that the
office “assign a lawyer to me to do them nunc pro tunc[.]” Motion to Reinstate
Appellate Rights Nunc Pro Tunc, 8/17/20, at Exhibit A. The motion
subsequently filed by the Public Defender requested only the reinstatement of
Robinson’s direct appellate rights, nunc pro tunc. See id. (requesting “order
reinstating appellate rights to the Superior Court). In response, the trial court
issued an order reinstating Robinson’s appellate rights, but not his post-
sentence rights. See Trial Court Order, 8/18/20 (granting motion to reinstate
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issue that is waived is frivolous. See Commonwealth v. Kalichak, 943 A.2d
285, 291 (Pa. Super. 2008) (when issue has been waived, “pursuing th[e]
matter on direct appeal is frivolous”). Accordingly, Robinson is entitled to no
relief.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2021
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and setting deadline for appeal to Superior Court). The reinstatement of
appellate rights, nunc pro tunc, does not automatically reinstate post-
sentence motion rights. See, e.g., Commonwealth v. Fransen, 986 A.2d
154, 157-58 (Pa. Super. 2009). To the extent Robinson believes that counsel
provided ineffective assistance by failing to move for the reinstatement of his
post-sentence rights, as he specifically requested, he may seek relief through
the Post Conviction Relief Act.
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