Com. v. Barnett, D.

J-S25017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID LEE BARNETT
Appellant No. 1329 WDA 2014
Appeal from the Judgment of Sentence Entered July 8, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at Nos: CP-33-CR-0000046-2010 and CP-33-CR-0000328-
2010
BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015
Appellant, David Lee Barnett, appeals from the July 8, 2014 judgment
of sentence imposing two to five years of incarceration for driving under the
influence of alcohol1 at No. CP-33-CR-0000046-2010 and a consecutive one
to five years of incarceration for unauthorized repair or sale of offensive
weapons2 at CP-33-CR-0000328-2010. Counsel has filed a petition to
withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967),
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. § 3802.
2
18 Pa.C.S.A. § 908.
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and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
Appellant has a history of violating the conditions of intermediate
punishment and probationary sentences. Appellant pled guilty to the
aforementioned offenses on December 15, 2010 and the trial court imposed
three months to two years less one day of county incarceration followed by
one year and one day of probation for the weapons offense, and five years
of county restrictive intermediate punishment for DUI. After a violation, the
trial court, on November 18, 2011, revoked the previous sentences and
imposed a two-year state intermediate punishment (“SIP”) sentence
followed by three years of probation for DUI, and a concurrent 5 years of
probation for the weapons offense. The trial court imposed the sentences
presently on appeal after Appellant absconded from a halfway house during
his SIP sentence.
Appellant filed a timely notice of appeal on July 27, 2014. In his
Pa.R.A.P. 1925(b) statement, Appellant asserted the trial court abused its
sentencing discretion because it failed to place on the record an adequate
explanation for the sentence it imposed. Subsequently, appointed counsel
filed a brief and petition to withdraw pursuant to Anders and Santiago. We
must first discern whether counsel’s filings comply with the dictates of those
two cases.
Counsel’s brief must do the following:
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(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.
Counsel must also advise the defendant of his rights to “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court’s attention in addition to
the points raised by counsel in the Anders brief.” Commonwealth v.
Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 936 A.2d 40(Pa. 2007). We have reviewed counsel’s filings and found them in
compliance with the foregoing. Appellant has not filed any response.
In the Anders Brief, counsel addresses Appellant’s challenge to the
discretionary aspects of the trial court’s sentence. To preserve this issue, an
appellant must: (1) raise it at sentencing or in a timely post-sentence
motion; (2) file a timely appeal; (3) include in his brief a concise statement
of the reasons relied upon for allowance of appeal, per Pa.R.A.P. 2119(f);
and (4) set forth in the Rule 2119(f) statement a substantial question as to
the propriety of the sentence. Commonwealth v. Malovich, 903 A.2d
1247, 1250 (Pa. Super. 2006). In the Anders Brief, counsel correctly
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concludes Appellant has waived any challenge to the trial court’s sentencing
discretion because he did not raise it at sentencing or in a post-sentence
motion.3 Thus, he cannot obtain relief on direct appeal. We observe,
nonetheless, that the trial court explained its sentencing rationale, noting
Appellant’s ongoing criminal prosecution for escape from the halfway house
and his persistent drug problem. N.T. Sentencing, 7/8/14, at 10-11. The
court noted that a potentially lengthy parole could assist Appellant’s
rehabilitation. Id. at 11.
The Anders Brief also notes, without citation to authority, that both
sentences fall within the applicable statutory maximum. Appellant’s
weapons offense was a first-degree misdemeanor. 18 Pa.C.S.A. § 908(a).
The trial court imposed the lawful maximum for this offense.4 18 Pa.C.S.A.
§ 1104(a)(1). Similarly, Appellant’s violation of 75 Pa.C.S.A. § 3802(c) was
treated as a first-degree misdemeanor under the circumstances of this case.
N.T. Sentencing, 7/8/14, at 11. See 75 Pa.C.S.A. § 3803(b)(4). Thus, the
trial court imposed the lawful maximum for both offenses. We agree with
counsel that the issues set forth in the Anders Brief lack arguable merit.
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3
Private counsel represented Appellant at sentencing and subsequently
withdrew. The trial court appointed a public defender to represent Appellant
in this appeal.
4
We observe that the trial court credited Appellant for prior time served.
N.T. Sentencing, 7/8/14, at 11.
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We have conducted an independent review of the record in accord with
Santiago. Santiago, 978 A.2d at 355 n.5. In particular, we note
Appellant’s frank admission that he deliberately absconded from the halfway
house. N.T. Sentencing, 7/8/14, at 10. Given the clarity of the record on
the violation that resulted in the revocation and resentencing, the legality of
the sentence imposed, and Appellant’s failure to preserve a challenge to the
discretionary aspects of his sentence, we conclude Appellant cannot raise
any non-frivolous arguments in this appeal. We therefore affirm the
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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