Com. v. Lisinichia, R.

J-S71020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT LISINICHIA
Appellant No. 912 EDA 2016
Appeal from the Judgment of Sentence February 17, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001973-2015
CP-48-CR-0003869-2015
BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J. *
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 29, 2016
Appellant, Robert Lisinichia, appeals from the judgment of sentence
entered on February 17, 2016, in the Court of Common Pleas of
Northampton County. Additionally, Lisinichia’s court-appointed counsel,
Matthew J. Deschler, Esquire, has filed an application to withdraw as counsel
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
review, we affirm Lisinichia’s judgment of sentence and grant counsel’s
petition to withdraw.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On July 20, 2015, Lisinichia was charged with two counts of
involuntary deviate sexual intercourse with a child, criminal attempt to
commit rape of a child, indecent assault against a person less than thirteen
years of age, corruption of minors, and endangering the welfare of a child.1
On November 25, 2015 in exchange for the Commonwealth agreeing to
withdraw all other charges, Lisinichia entered a guilty plea to two counts of
indecent assault as a felony of the third degree. The negotiated guilty plea
agreement included the future disposition of pending failure to register2
charges on a separate docket, as well as an agreed-upon aggregate
sentence of 7 to 14 years’ incarceration for Lisinichia’s charges at both
dockets.
On February 17, 2016, Lisinichia pleaded guilty to failure to register
with the Pennsylvania State Police pursuant to the terms of the negotiated
guilty plea agreement. The trial court thereafter sentenced Lisinichia on each
count of indecent assault to 3½ to 7 years’ incarceration, and on the failure
to register offense to 33 to 66 months’ incarceration. The sentences for
indecent assault were run consecutively to each other, while the sentence
for failure to register was run concurrently to the indecent assault sentences.
Following sentencing, Lisinichia sent numerous ex parte letters to the trial
____________________________________________
1
18 Pa.C.S.A. §§ 3123(b), 901(a), 3126(a)(7), 6301(a)(1)(ii), and
4304(a)(1), respectively.
2
18 Pa.C.S.A. § 4915.1(a.1)(1).
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court, which the trial court treated as a collective motion for post-sentence
relief. Subsequently, on March 10, 2016, the trial court denied Lisinichia’s
post-sentence motion, and granted him the right to appeal nunc pro tunc.
This timely appeal followed. The trial court appointed Attorney Deschler to
serve as appellate counsel.
As noted, Attorney Deschler has requested to withdraw and has
submitted an Anders brief in support thereof contending that Appellant’s
appeal is frivolous. The Pennsylvania Supreme Court has articulated the
procedure to be followed when court-appointed counsel seeks to withdraw
from representing an appellant on direct appeal.
[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
arguably believes 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.
Attorney Deschler has substantially complied with all of the
requirements of Anders as articulated in Santiago. Additionally, Attorney
Deschler confirms that he sent a copy of that Anders brief as well as a letter
explaining to Appellant that he has the right to proceed pro se or the right to
retain new counsel. A copy of the letter is appended to Attorney Deschler’s
petition. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.
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2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.
2005). Appellant did not file a response.
We will now proceed to examine the issues counsel has set forth in his
Anders brief. Counsel identifies two issues that Appellant desires to raise on
appeal. First, Appellant contends that his guilty plea was involuntary due to
the pressure exerted upon Appellant by guilty plea counsel. However, we
observe that claims of ineffectiveness of counsel are generally not ripe until
collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.
2013). To the extent that Appellant’s argument hinges on circumstances
other than counsel’s effectiveness, our review of the record indicated that he
was fully apprised of the consequences of his plea during his oral colloquies
with the trial court. See N.T., Guilty Plea, 11/25/15, at 6, 16; N.T., Guilty
Plea and Sentencing, 2/17/16, at 10-11. We therefore agree with counsel’s
assessment that this issue is wholly meritless.
In his second issue, Appellant contends that the aggregate sentence of
imprisonment imposed is excessive. Appellant concedes that his argument
challenges the discretionary aspects of the trial court’s sentence. See
Anders Brief, at 8. “A challenge to the discretionary aspects of a sentence
must be considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d
270, 274 (Pa. Super. 2004) (citation omitted). When challenging the
discretionary aspects of the sentence imposed, an appellant must present a
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substantial question as to the inappropriateness of the sentence. See
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two
requirements must be met before we will review this challenge on its
merits.” McAfee, 849 A.2d at 274. “First, an appellant must set forth in his
brief a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence.” Id. (citation
omitted).
“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
Id. (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado,
870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists. See id. “Our
inquiry must focus on the reasons for which the appeal is sought, in contrast
to the facts underlying the appeal, which are necessary only to decide the
appeal on the merits. Id. (citation omitted).
Here, Appellant’s appellate brief does not contain the requisite Rule
2119(f) concise statement, and, as such, this issue could be technically
waived. See, e.g., Commonwealth v. Gambal, 561 A.2d 710, 713 (Pa.
1989). Furthermore, the argument section of counsel’s Anders brief does
not separately list the arguments regarding each issue identified. However,
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rather than remand for an appropriate Anders brief, we will assess
Lisinichia’s issue on the merits in the interest of judicial efficiency.
Lisinichia argues that the sentence imposed by the trial court was
unreasonable and exceeds the sentencing guidelines. See Anders Brief, at
6. We have generally held that a claim that a sentence outside of the
guidelines is unreasonable constitutes a substantial question for appellate
review. See Commonwealth v. Hill, 66 A.3d 365, 369 (Pa. Super. 2013).
However, Lisinichia waived all rights to challenge the discretionary aspects of
his sentence by entering into a negotiated guilty plea that set the length of
his incarceration. See Commonwealth v. Reichle, 589 A.2d 1140, 1141
(Pa. Super. 1991). As the trial court imposed the agreed-upon sentence,
Lisinichia cannot now challenge the discretionary aspects of that sentence.
He received exactly what he bargained for. Thus, we agree with counsel’s
assertion that Lisinichia’s second issue on appeal is meritless.
After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2016
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