Com. v. Rogers, B.

J-S48004-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee, :
:
v. :
:
BOBBI JO ROGERS, :
:
Appellant : No. 2116 MDA 2013
Appeal from the Judgment of Sentence November 14, 2013,
Court of Common Pleas, Luzerne County,
Criminal Division at No(s): CP-40-CR-0003344-2011
and CP-40-CR-0003532-2011
BEFORE: DONOHUE, JENKINS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 01, 2014
entered on November 14, 2013 by the Court of Common Pleas of Luzerne
County, Criminal Division, following her negotiated guilty plea to two counts
of criminal conspiracy to commit the manufacture, delivery, or possession
with intent to manufacture or deliver, a controlled substance.1
pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) and
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review,
Because Rogers challenges only the discretionary aspects of her
sentence, a recitation of the facts underlying her convictions is not
1
35 P.S. 780-113(a)(3); 18 P.S. § 903(c).
*Retired Senior Judge assigned to the Superior Court.
J-S48004-14
necessary. The relevant procedural history is as follows. On April 1, 2013,
Rogers entered a negotiated, counseled plea agreement in which she pled
guilty to two counts of the above-referenced crime. Following her guilty
plea, the trial court ordered a pre-sentence investigation. On November 14,
sentenced Rogers to two sentences of 36 to 72 months of incarceration in a
state correctional facility, to run concurrent with one another. Rogers did
not file post-sentence motions.
On November 22, 2013, Rogers filed a notice of appeal. On November
25, 2013, the trial court issued an order directing Rogers to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). On December 12, 2013, Rogers timely filed
her Rule 1925(b) statement. On appeal, Counsel has filed a petition to
withdraw and brief pursuant to Anders and Santiago.
There are particular mandates that counsel seeking to withdraw
pursuant to Anders must follow. These mandates and the significant
protection they provide to an Anders appellant arise because a criminal
defendant has a constitutional right to a direct appeal and to counsel on that
appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
We have summarized these requirements as follows:
Direct appeal counsel seeking to withdraw under
Anders must file a petition averring that, after a
conscientious examination of the record, counsel
-2-
J-S48004-14
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
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
Id. (citations omitted).
Moreover, there are requirements as to precisely what an Anders
brief must contain:
[T]he Anders brief that accompanies court-appointed
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
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. When faced with a purported Anders brief, we
may not review the merits of the underlying issues without first deciding
whether counsel has properly requested permission to withdraw.
-3-
J-S48004-14
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008)
the responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
Santiago, 978 A.2d at 354 n.5.
We conclude that Counsel has complied with the requirements outlined
above. Counsel has filed a petition with this Court stating that after
reviewing the record, he finds this appeal to be wholly frivolous. Petition for
Leave to Withdraw as Counsel, 5/19/14, at ¶ 3. Counsel has filed a brief
setting forth one issue that he believes might arguably support an appeal.
See Anders Brief at 1, 6. In conformance with Santiago
includes summaries of the facts and procedural history of the case and
See id.
at the appeal is frivolous
and includes citation to relevant authority. See id. at 6. Finally, Counsel
has attached to his petition the letter that he sent to Rogers, which enclosed
Anders brief and advised Rogers of her right to
proceed pro se or with private counsel and to raise any additional issues that
The lone issue presented by Counsel in the Anders
Anders Brief at
-4-
J-S48004-14
1, 6. Our standard of review when considering discretionary aspects of
sentencing claims is as follows:
Sentencing is a matter vested in the sound discretion
of the sentencing judge. The standard employed
when reviewing the discretionary aspects of
sentencing is very narrow. We may reverse only if
the sentencing court abused its discretion or
committed an error of law. 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, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. We
weight because it was in the best position to review
and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal
quotations and citations omitted).
considered a petition for permission to appeal, as the right to pursue such a
claim is no Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004), appeal denied
Id.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
Id.-5-
J-S48004-14
substantial question that the sentence imposed is not appropriate under the
Id.violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006)
(citation and quotations omitted).
We conclude that Rogers has waived her discretionary aspects of
sentence claim. Our review of the certified record reveals that Rogers never
filed a post-sentence motion challenging the discretionary aspects of her
sentence. Additionally, the transcript of the sentencing proceedings reveals
that Rogers did not challenge the discretionary aspects of her sentence
during sentencing. See N.T., 11/14/13, at 2-7. Thus, Rogers has waived
her discretionary aspects of sentence claim. See Shugars, 895 A.2d at
1273-74. Therefore, we agree with Counsel that the sole issue Rogers raises
on appeal is frivolous.
Finally, after conducting our own independent review of the record, we
-6-
J-S48004-14
assessment that
appeal wholly frivolous and permit Counsel to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2014
-7-