Com. v. Brandt, V.

J-S05026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VALLI J. BRANDT, :
:
Appellant : No. 1048 WDA 2014
Appeal from the Judgment of Sentence Entered May 28, 2014,
In the Court of Common Pleas of Erie County,
Criminal Division, at No. CP-25-CR-0002918-2013.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 18, 2015
Appellant, Valli J. Brandt, appeals from the judgment of sentence
entered on May 28, 2014, in the Erie County Court of Common Pleas.
Appellate counsel has filed a petition seeking to withdraw his representation
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a
withdrawal from representation on direct appeal. Appellant has filed a
response to counsel’s petition. After careful review, we grant counsel’s
petition to withdraw and affirm Appellant’s judgment of sentence.
J-S05026-15
On February 27, 2014, Appellant entered a guilty plea to one count of
neglect of a care-dependent person,1 graded as a felony of the first degree.
In consideration of her guilty plea, the Commonwealth agreed to enter a
nolle prosequi on one count of recklessly endangering another person. On
May 28, 2014, the trial court sentenced Appellant to a term of thirty-six to
seventy-two months of incarceration.
On June 27, 2014, Appellant filed her notice of appeal, and on June
30, 2014, the trial court directed Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, on
July 17, 2014, having concluded that there were no meritorious issues that
could be raised on appeal, Appellant’s counsel filed a statement of intent to
file an Anders brief and withdraw as counsel pursuant to Pa.R.A.P.
1925(c)(4). Counsel filed his Anders brief and petition to withdraw on
October 7, 2014.
Before we address the issue Appellant’s counsel raised on appeal, we
must resolve appellate counsel’s request to withdraw. Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are
procedural and briefing requirements imposed upon an attorney who seeks
1
The care-dependent person in this case (“the Victim”) was Appellant’s
mother. Guilty Plea Hearing, 2/27/14, at 9. Due to the neglect, the Victim
developed stage four pressure ulcers on her body and required
hospitalization. Id. The Victim died prior to the plea hearing. Id. at 10.
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to withdraw on direct appeal. The procedural mandates are that 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) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within his petition
to withdraw, counsel averred that he conducted a conscientious examination
of the record, including the plea colloquy and all other documents of record.
Following that review, counsel concluded that the present appeal is wholly
frivolous. Counsel sent Appellant a copy of the Anders brief and the
petition to withdraw, as well as a letter advising Appellant that she could
represent herself or that she could retain private counsel to represent her. A
copy of that letter was attached to counsel’s petition to withdraw.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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
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on point that have led to the conclusion that the appeal is
frivolous.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
We are satisfied that counsel has met the requirements set forth in
Santiago. Counsel’s brief sets forth the factual and procedural history of
this case, cites to the record, and refers to an issue that counsel arguably
believes supports the appeal. Anders Brief at 5-6. Further, the brief sets
forth counsel’s conclusion that the appeal is frivolous, and it contains
pertinent case authority and counsel’s reasons for concluding that the appeal
is frivolous. Id. at 5-8. Accordingly, we address the following issue raised
in the Anders brief:
Whether the Appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Pennsylvania Sentencing Code.
Anders Brief at 3.
In the argument portion of the Anders brief, counsel asserts that the
trial court abused its discretion in sentencing Appellant to such a lengthy
term of incarceration without considering mitigating factors. Anders Brief at
6. Specifically, counsel claims that during Appellant’s sentencing hearing, it
was noted that Appellant’s actions were not “intentional” and, despite the
neglect, Appellant did, in fact, care for the Victim and take responsibility for
her actions. Id. Thus, counsel is purporting to present a challenge to the
discretionary aspects of Appellant’s sentence.
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It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be
considered to be a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). Before this Court may
review the merits of a challenge to the discretionary aspects of a sentence,
we must engage in a four-pronged analysis:
[W]e 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. [708]; (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.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
A determination as to whether a “substantial question” exists is made
on a case-by-case basis, and this Court will grant the appeal “only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Commonwealth v. Sierra, 752 A.2d 910, 912-913
(Pa. Super. 2000). “[T]his Court has held that an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
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mitigating factors—raises a substantial question.” Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation omitted). However,
while Appellant’s claim of sentencing error presents a substantial question,
and while she filed her appeal in a timely manner and included a statement
pursuant to Pa.R.A.P. 2119(f) in her brief, we are constrained to conclude
that this issue was not properly preserved for appellate review.
It is well settled that “issues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
Cartrette, 83 A.3d at 1042 (citation omitted). Here, Appellant failed to
challenge her sentence in a post-sentence motion or during the sentencing
hearing. Accordingly, this claim is waived.2
Finally, as noted above, Appellant filed a response to counsel’s petition
to withdraw. In her response, Appellant asserted that she was not negligent
in her care of the Victim, and in fact provided adequate care. Response to
Anders Brief, 10/14/14, at 1-2. She averred that any negligence was due
2
Had this issue been preserved, we would agree with counsel that the claim
is frivolous. The record reveals that the trial court aptly considered all
relevant factors, including a presentence investigation report, and imposed a
sentence at the lowest end of the standard range of the Sentencing
Guidelines. N.T., Sentencing, 5/28/14, at 8-9; and see 18 Pa.Code §
303.16 (setting forth the sentencing range for neglect of a care-dependent
person, graded as a felony of the first degree, when the defendant has a
prior record score of two and the offense gravity score is ten).
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to being overwhelmed with the duties of caring for the Victim. Id. at 3.
However, Appellant provided no legal authority and advanced no discernable
argument in support of her position. Accordingly, Appellant has not set forth
any claim that we may address, much less any argument upon which we
could grant relief.
Finally, we have independently reviewed the record in order to
determine whether there are any non-frivolous issues present in this case.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having
concluded that there are no meritorious issues, we grant Appellant’s counsel
permission to withdraw, and affirm the judgment of sentence.
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
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