Com. v. Grier, D.

J-S04015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD PRICE GRIER, JR.,
Appellant No. 2147 EDA 2016
Appeal from the Judgment of Sentence June 14, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000909-2014
BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2017
Appellant, Donald Price Grier, Jr., appeals from the judgment of
sentence entered on June 14, 2016, following the revocation of his
probation. Appellate counsel has filed a petition to withdraw his
representation and a brief pursuant to Anders v. California, 386 U.S. 738(1967). After review, we grant counsel’s petition to withdraw, and we affirm
the judgment of sentence.
The relevant affidavit of probable cause indicates that Appellant, who
recently had been released from prison on unrelated charges, broke into a
power station on August 5, 2013, in Delaware County and stole various
copper items that he and a co-actor sold at a scrap yard near the
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*
Former Justice specially assigned to the Superior Court.
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Philadelphia airport. Affidavit of Probable Cause, 10/16/13. On April 24,
2014, Appellant entered a negotiated guilty plea to theft by unlawful taking
and was sentenced in accordance with the plea agreement to a term of
incarceration of six to twenty-four months, followed by one year of
probation. After serving his sentence of incarceration, he violated his
probation by absconding from supervision. At the Gagnon II1 hearing on
June 14, 2016, Appellant, represented by counsel, stipulated that he was in
violation of his probation,2 but he explained, “I just absconded because I’m
not really from Pennsylvania, Your Honor. I’m from Delaware.” N.T.,
6/14/16, at 3, 8. The trial court resentenced Appellant to a term of
incarceration of six to twenty-four months followed by one year of probation.
This timely appeal followed.
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1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
Appellant’s counsel stipulated “to the violation, as well as the
recommendation as contained in the probation and parole officer’s report.”
N.T., 6/14/16, at 3. The original recommendation “was 6 months to 23
months county, under the Delaware County Mental Health Unit with credit
for time served, which would be from 4/20 [16], total 55 days.” Id. Prior to
the hearing, the Commonwealth informed counsel that the recommendation
was changed to “6 to 24 months” to “turn it over to a state sentence. Due
to the fact that [Appellant] would get funding through the state for his
mental health issues.” Id. at 4. The Commonwealth reiterated, “just so
[defense counsel is] aware, it’s not just because of the mental health
treatment, it’s because it was a state sentence to begin with.” Id. at 7.
Thus, the only discussion at the time of sentencing was whether the
sentence imposed would be a county or state sentence. There was no
objection to duration or any discretionary aspect of sentence.
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On July 12, 2016, the trial court ordered the filing of a concise
statement of matters complained of on appeal. Counsel timely filed a
statement indicating that, pursuant to Pa.R.A.P. 1925(c)(4), he intended to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).3 On
August 18, 2016, the trial court filed a statement in which it advised that it
would not file an opinion due to counsel’s intention to seek to withdraw
representation. We caution that the filing of a statement of intent to
withdraw as counsel pursuant to Anders and Pa.R.A.P. 1925(c)(4) does not
relieve the trial court of its duty to provide the rationale for its decision
under Pa.R.A.P. 1925(a)(2). However, because Appellant has waived the
issue identified by counsel in his Anders brief, we will not remand to the
trial court for the filing of a Rule 1925(a) opinion.
Before we address the question raised on appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc). See Commonwealth v. Rojas,
874 A.2d 638, 639 (Pa. Super. 2005) (stating, “When faced with a purported
Anders brief, this Court may not review the merits of the underlying issues
without first passing on the request to withdraw.”).
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3
Anders sets forth the requirements for counsel to withdraw from
representation on direct appeal. See also Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009) (applying Anders in state court).
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There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on 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 [his client]; and 3) advise [his client] that he or
she has the right to retain private counsel or raise additional
arguments that the [client] deems worthy of the court’s
attention.
Cartrette, 83 A.3d at 1032 (citation omitted).
In addition, our Supreme Court, in Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), stated that an Anders brief 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. The Supreme Court reaffirmed the principle
that indigents “generally have a right to counsel on a first appeal, [but] . . .
this right does not include the right to bring a frivolous appeal and,
concomitantly, does not include the right to counsel for bringing such an
appeal.” Id. at 357 (citation omitted).
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Appellant’s counsel has complied with the first prong of Santiago by
providing a summary of the procedural history in the Anders brief. He has
complied with the second prong by referring to any evidence in the record
that he believes arguably supports the appeal. Counsel also set forth his
conclusion that the appeal is frivolous and stated his reasons for that
conclusion, with appropriate support. Moreover, counsel filed a separate
motion to withdraw as counsel, wherein he stated that he examined the
record and concluded that the appeal is wholly frivolous. Further, counsel
has attempted to identify and develop any issues in support of Appellant’s
appeal. Additionally, counsel sent a letter to Appellant, and he attached a
copy of the letter to his motion. Counsel states that he informed Appellant
that he has filed a motion to withdraw and an Anders brief, and he apprised
Appellant of his rights in light of the motion to withdraw as counsel.
Appellant has not filed any response to counsel’s motion to withdraw. Thus,
we conclude that the procedural and briefing requirements of Anders and
Santiago for withdrawal have been met.
In the Anders brief, counsel presents the following issue for our
review: “Whether the 6 to 24 month term of imprisonment imposed herein
is harsh and excessive under the circumstances?” Ander’s Brief at 1.
Appellant’s sole issue challenges the discretionary aspects of his sentence.
As this Court clarified in Cartrette, our scope of review following the
revocation of probation is not limited solely to determining the validity of the
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probation revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the time of the
initial sentencing. Rather, it also includes challenges to the discretionary
aspects of the sentence imposed. Specifically, we unequivocally held that
“this Court’s scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034.
Further, as we have long held, the imposition of sentence following the
revocation of probation is vested within the sound discretion of the trial
court, which, absent an abuse of that discretion, will not be disturbed on
appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
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). Instead, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[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
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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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects
of a sentence are waived if they are not raised at the sentencing hearing or
in a motion to modify the sentence imposed. Moury, 992 A.2d at 170
(citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In
addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must
be filed within ten days of the imposition of sentence following the
revocation of probation. Pa.R.Crim.P. 708(D). As the comment to Rule 708
explains:
Issues properly preserved at the sentencing proceeding need
not, but may, be raised again in a motion to modify sentence in
order to preserve them for appeal. In deciding whether to move
to modify sentence, counsel must carefully consider whether the
record created at the sentencing proceeding is adequate for
appellate review of the issues, or the issues may be waived.
Pa.R.Crim.P. 708 cmt. Thus, an objection to a discretionary aspect of a
sentence is waived if not raised in a post-sentence motion or during the
sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745-7-
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(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was
waived because appellant did not object at sentencing hearing or file post-
sentence motion).
Herein, the first requirement of the four-part test is met because
Appellant brought a timely appeal. However, our review of the certified
record reflects that Appellant waived his challenge to the discretionary
aspects of his sentence by failing to raise the claim of an excessive, harsh
sentence either at the sentencing proceeding or by means of a post-
sentence motion. Thus, this issue has not been properly preserved for
appeal, and the record is not adequate to allow appellate review of
Appellant’s claim. Accordingly, we deem this issue to be waived. Moreover,
after conducting an independent review of the record, we discern no non-
frivolous issues overlooked by counsel. Accordingly, we grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
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