Com. v. Jones, J.

J-S57041-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
JAMAL THEODORE JONES, :
:
Appellant : No. 3814 EDA 2017
Appeal from the Judgment of Sentence October 19, 2017
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000837-2017
BEFORE: PANELLA, J., PLATT, J.* and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 04, 2018
Jamal Theodore Jones (Appellant) appeals from his October 19, 2017
judgment of sentence of 12 to 30 years of incarceration, imposed after he
pleaded guilty to aggravated assault and persons not to possess firearms.
Appellant’s counsel has filed a petition to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence
and grant counsel’s petition to withdraw.
The incident giving rise to the aforementioned charges occurred
around 3:00 a.m. on Christmas morning. A disturbance that occurred at a
home in Allentown, Pennsylvania that spilled out onto the street, and
Appellant eventually became involved. He fired three shots in the direction
of Randy Calloway, one of which hit Calloway in the abdomen. Appellant
*Retired Senior Judge assigned to the Superior Court.
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fled the scene, but was later identified by several witnesses. Appellant was
arrested and charged in connection with this shooting.
On October 19, 2017, Appellant entered into a negotiated guilty plea.
The Commonwealth agreed to an 8-year minimum sentence on the
aggravated assault charge and a 4-year minimum sentence on the firearms
charge to be served consecutively. The trial court had discretion to set
Appellant’s maximum sentence. The trial court sentenced Appellant to 12 to
30 years of incarceration, in compliance with the agreement. Appellant
timely filed a post-sentence motion, asking for reconsideration as to
Appellant’s maximum sentence. The trial court denied the motion, and
Appellant filed an appeal to this Court. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
In this Court, Appellant’s counsel filed both an Anders brief and a
petition to withdraw as counsel. Accordingly, the following principles guide
our review of this matter.
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 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.
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If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[I]n 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 on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has complied substantially with the
technical requirements set forth above.1 Therefore, we now have the
responsibility “‘to make a full examination of the proceedings and make an
1 Appellant has not filed a response with this Court to counsel’s pettion.
However, in the trial court, Appellant filed a motion for additional transcripts.
Those transcripts have been forwarded to this Court and made part of a
supplemental certified record.
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independent judgment to decide whether the appeal is in fact wholly
frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.
2015) (quoting Santiago, 978 A.2d at 354 n.5).
The only issue arguably supporting an appeal cited by Appellant’s
counsel is whether the trial court abused its discretion in sentencing
Appellant to a maximum term of 30 years of incarceration, which is the
statutory limit. Anders Brief at 8. This issue involves a challenge to the
trial court’s discretion in sentencing.
“Initially, we must determine whether [Appellant] has the right to seek
permission to appeal the sentencing court’s exercise of its discretion.”
Commonwealth v. Brown, 982 A.2d 1017, 1018–19 (Pa. Super. 2009).
When an appellant enters into a guilty plea where some, but not all
provisions are negotiated, he may challenge only the discretionary aspects
of the non-negotiated portion of his sentence. See id. Here, Appellant
received his negotiated minimum sentence of 12 years of incarceration.
However, Appellant’s maximum sentence was not negotiated, and that is the
portion he challenges on appeal. We consider this issue mindful of the
following.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
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exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant filed a timely notice of appeal, preserved this issue in
his post-sentence motion, and included a Pa.R.A.P. 2119(f) statement in his
brief. Anders Brief at 11. Thus, we consider whether Appellant has raised a
substantial question.
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“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(citation and quotation marks omitted).
Instantly, counsel for Appellant raises the issue that Appellant’s
maximum sentence “was manifestly excessive and not proportional to the
criminal action for which he had entered a guilty plea.” Anders Brief at 11.
“In Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super.
2005) (citations omitted), this Court explained that ‘[w]hen the sentence is
within the range prescribed by statute, a challenge to the maximum
sentence imposed does not set forth a substantial question as to the
appropriateness of the sentence under the guidelines.’” Commonwealth v.
Yeomans, 24 A.3d 1044, 1049 (Pa. Super. 2011). Based on the foregoing,
we agree with counsel that Appellant has not presented a substantial
question for our review.2
2 Even if Appellant did raise a substantial question, he would not be entitled
to relief. At sentencing, the Commonwealth informed the trial court that
while Appellant was incarcerated, he had been contacting Calloway and
other Commonwealth witnesses in an intimidating fashion both directly and
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Accordingly, we agree with counsel that a challenge to the
discretionary aspects of Appellant’s sentence is frivolous. Moreover, we
have conducted “a full examination of the proceedings” and conclude that
“the appeal is in fact wholly frivolous.”3 Flowers, 113 A.3d at 1248.
Accordingly, we affirm the judgment of sentence and grant counsel’s petition
to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
indirectly. See N.T., 10/19/2017, at 6. In addition to the negotiated
minimum sentence, the plea agreement included the Commonwealth not
pursuing criminal charges related to that conduct. Further, the trial court
pointed out that Appellant “almost killed this man” and received a plea deal
for 12 years of incarceration. Id. at 24. Based on the foregoing, we agree
with counsel that Appellant has failed to demonstrate that “the [trial] court
ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super.
2015) (quoting Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013)).
3 We have conducted our review mindful of the fact that “upon entry of a
guilty plea, a defendant waives all claims and defenses other than those
sounding in the jurisdiction of the court, the validity of the plea, and what
has been termed the ‘legality’ of the sentence imposed.” Commonwealth
v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/18
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