Com. v. Garrette, T.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TRAVIS GARRETTE, :
:
Appellant : No. 374 EDA 2014
Appeal from the Judgment of Sentence January 10, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0001556-2009
BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 24, 2015
Travis Garrette (“Garrette”) appeals from the judgment of sentence
entered following the revocation of his probation. His court-appointed
counsel, Lawrence J. Bozzelli, Esquire (“Counsel”), has filed a motion
seeking permission to withdraw and a brief in support thereof pursuant to
Anders v. California, 386 U.S. (1967) and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009). Following our review, we affirm the judgment of
sentence and grant Counsel’s petition to withdraw.
Briefly, we recite the facts underlying this appeal. In 2010, Garrette
was convicted of possessing a firearm without a license and sentenced to six
years of probation. While on probation, Garrette was arrested in connection
with a number of robberies. As a result, he was convicted of robbery and
related offenses and sentenced to eight to sixteen years of imprisonment.
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These convictions were direct violations of his probation, and on
January 10, 2014, a violation of probation (“VOP”) hearing was held, at the
conclusion of which the trial court revoked Garrette’s probation and imposed
a sentence of three and a half to seven years of imprisonment, ordered to
run consecutively to the sentence imposed on the convictions related to the
robberies. Garrette did not file a post-sentence motion, but timely filed this
appeal. In response to the trial court’s Rule 1925(b) order, Counsel filed a
statement of his intent to file an Anders brief and petition seeking
permission to withdraw. As a result, the trial court did not author an
opinion.
A request by appointed counsel to withdraw pursuant to Anders and
Santiago gives rise to certain requirements and obligations, for both
appointed counsel and this Court. Commonwealth v. Flowers, 113 A.3d
1246, 1248 (Pa. Super. 2015).
These requirements and the significant protection
they provide to an Anders appellant arise because a
criminal defendant has a constitutional right to a
direct appeal and to counsel on that appeal.
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
Super. 2007). This Court has summarized these
requirements as follows:
Direct appeal counsel seeking to withdraw
under Anders must file a petition averring
that, after a conscientious examination of the
record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders
brief setting forth issues that might arguably
support the appeal along with any other issues
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necessary for the effective appellate
presentation thereof.
Anders counsel must also provide a copy of
the Anders petition and brief to the appellant,
advising the appellant of the right to retain
new counsel, proceed pro se or raise any
additional points worthy of this Court’s
attention.
Woods, 939 A.2d at 898 (citations omitted).
There are also requirements as to the precise
content of an Anders brief:
[T]he Anders brief that accompanies court-
appointed counsel's petition to withdraw ...
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.
Id. If this Court determines that appointed counsel has met these
obligations, it is then our responsibility “to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Id. In so doing, we review not only the
issues identified by appointed counsel in the Anders brief, but examine all
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of the proceedings to “make certain that appointed counsel has not
overlooked the existence of potentially non-frivolous issues.” Id.
We begin with Counsel’s filings. Counsel has filed a petition seeking to
withdraw with this Court, in which he states his belief that after an
examination of the record, the appeal is wholly frivolous. Attached to that
petition is a copy of the letter he sent to Garrette, which indicates that he
enclosed a copy of his Anders brief and advises Garrette that he can retain
new counsel or proceed pro se to raise with this Court any additional points
he deems worthy, and further advises that if he wishes to do either, he must
act quickly. Further, the content of Counsel’s Anders brief conforms to the
Santiago requirements previously set forth.
Although the content of his filings are adequate, Counsel has failed to
comply technically with all of the Anders requirements because he did not
provide Garrette with a copy of his petition seeking to withdraw. 1 In his
letter to Garrette, Counsel encloses the Anders brief and explains that he is
filing the Anders brief because he did not believe there were any non-
frivolous issues to raise on appeal. Counsel advises Garrette that Garrette
may proceed pro se or retain other counsel to proceed in the appeal, and
advises that if he wished to do so, he must act quickly. While these
1
The certificate of service attached to Counsel’s petition seeking to
withdraw indicates that he served it upon only this Court and the
Commonwealth, and the letter he sent to Garrette indicates that Counsel has
enclosed only the Anders brief.
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statements imply that Counsel was seeking to withdraw, they do not state
this intention directly (as the petition seeking permission to withdraw would).
There could be concern, therefore, that Garrette was not adequately
informed of this fact. However, in the Anders brief (which Counsel did
provide to Garrette), Counsel states clearly that he has filed a petition
seeking to withdraw based on his determination that there are no
meritorious issues to raise. Anders Brief at 4, 8, 11. We therefore conclude
that although Counsel did not provide Garrette with a copy of his petition
seeking to withdraw, Garrette was adequately informed that Counsel was
seeking to withdraw from his representation. Consequently, we conclude
that Counsel has substantially complied with the Anders requirements, and
so we undertake our independent review to determine whether Garrette’s
appeal is wholly frivolous. See Commonwealth v. Reid, 117 A.3d 777,
781 (Pa. Super. 2015) (“Substantial compliance with [Anders] requirements
is sufficient.”) (citing Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa. Super. 2007)).
The first issue that Counsel presents is a challenge to Garrette’s
sentence as excessive. Anders Brief at 9-10. As the Commonwealth notes,
in order to preserve a challenge to the discretionary aspects of a sentence, a
defendant must raise the issue either at the time of sentencing or in a post-
sentence motion. Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa.
Super. 2006) (“To preserve an attack on the discretionary aspects of
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sentence, an appellant must raise his issues at sentencing or in a post-
sentence motion.”). Garrette did not challenge his sentence as excessive at
the time of his sentencing, and he did not file a post-sentence motion. His
failure to preserve this issue precludes him from raising it on appeal.
Accordingly, we agree with Counsel’s assessment that it would be frivolous to
raise this issue on appeal.
Counsel also states that Garrette might want to argue that his
sentence violates Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151(2013) because “the trial court effectively enhanced his sentence based on
factors which were not submitted to a jury[.]” Anders Brief at 10. There is
clearly no merit to this claim. In Alleyne, the Supreme Court held that
“facts that increase mandatory minimum sentences must be submitted to the
jury” and that they must be found beyond a reasonable doubt. Alleyne, 133
S.Ct. at 2163. There is no indication that the trial court relied on a
mandatory minimum sentence enhancement when formulating Garrette’s
sentence. There is therefore no basis for an Alleyne challenge.
In conformance with our duties, we have reviewed the record in its
entirety. Our independent review of the record does not reveal any issue
that would arguably support an appeal. Accordingly, we grant Counsel’s
petition and affirm Garrette’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2015
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