Com. v. Fetrow, S.

J-S30007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STACIE LYNNE FETROW :
:
Appellant : No. 141 EDA 2019
Appeal from the Judgment of Sentence Entered December 3, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002386-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 09, 2019
Appellant, Stacie Lynne Fetrow, challenges the judgment of sentence
entered in the Delaware County Court of Common Pleas, following her guilty
plea to theft by deception. Appellant disputes the discretionary aspects of her
sentence, arguing that the court issued a manifestly excessive sentence where
it imposed incarceration rather than a probationary term. Appellant’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and a motion to
withdraw. After careful review, we affirm.
Appellant was caught embezzling funds for her personal use when the
law firm that employed her conducted routine year-end accounting. She was
arrested and charged with a litany of offenses after the firm reported its
findings to local police. Appellant agreed to enter an open guilty plea to one
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count of theft by deception1 in exchange for the Commonwealth’s agreement
to drop the remaining charges.
Following a guilty plea colloquy, the court accepted Appellant’s open
plea. The court ordered a pre-sentence investigation report. At sentencing,
the court heard from the victims of the offense, and listened to testimony from
Appellant and her attorney regarding Appellant’s history of drug addiction and
other personal struggles. The court then imposed a sentence of three to
twenty-three months’ incarceration, to be served in a combination of weekend
stints in jail and thereafter, house arrest.
Appellant filed a timely notice of appeal. After the court ordered her to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), Appellant’s counsel instead filed notice of his intent to file
an Anders brief. This appeal is now properly before us.
Counsel has identified a single issue of potential merit: “whether the
judgment of sentence is harsh and excessive where the lower court sentenced
Appellant to jail when all the mitigating evidence warranted a sentence of
probation only?” Anders Brief, at 3.
Before addressing the merits of this issue, we are first tasked with
determining whether counsel has complied with the procedures set forth in
Anders. See Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super.
2015).
____________________________________________
1 18 Pa.C.S.A. § 3922.
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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.
Commonwealth v. Tukhi, 149 A.3d 881, 885-886 (Pa. Super. 2016)
(citation omitted).
The Anders brief is subject to particular requirements. Our Supreme
Court dictates that the brief must: provide a summary of the procedural
history and facts of the case, complete with citations to the record; refer to
any information in the record that counsel believes could arguably support the
appeal; present counsel’s conclusion that the appeal is frivolous; and state
counsel’s reasons for so concluding. See Santiago, 978 A.2d at 354. “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.”
Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015)
(citation omitted).
If this Court determines that counsel’s petition and brief satisfy the
requirements of Anders, we will undertake an independent review of the
appeal to ascertain whether it is wholly frivolous. See Tukhi, 149 A.3d at 886.
If it is found to be frivolous, we will grant counsel’s petition to withdraw, and
affirm the judgment of sentence. See id.
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Here, Appellant’s counsel has satisfied the procedural requirements
imposed. Counsel’s brief complies with the Anders/Santiago obligations set
forth above. Additionally, counsel filed a petition seeking leave to withdraw
his representation of Appellant. In the petition, he affirms he conducted a
thorough review of the record, he did not discover any meritorious issues that
may be raised on appeal, and he has concluded the appeal is wholly frivolous.
Counsel also attached to the petition a copy of the letter he sent to Appellant,
which advises she may retain private counsel or proceed pro se to raise any
additional issues she believes should be brought to this Court’s attention, and
that she should do so quickly. Finally, the letter states counsel enclosed a copy
of the petition to withdraw and his Anders brief. Appellant has not filed a
reply. We will now undertake our own review to determine whether this appeal
is indeed wholly frivolous.
Counsel’s Anders brief raises a single issue for our review. It asserts
the sentence is “harsh and excessive” where the court failed to consider
mitigating evidence, which is a challenge to the discretionary aspects of
Appellant’s sentence. Appellant’s Brief, at 5.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa. Super. 2013) (citations omitted). To invoke our jurisdiction, the
appellant must satisfy a four-part test 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 to reconsider and modify
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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.A. § 9781(b).
Id. (citation omitted).
“Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a motion to modify
the sentence imposed.” Commonwealth v. Dempster, 187 A.3d 266, 272
(Pa. Super. 2018) (en banc) (citation omitted). For purposes of Anders, an
issue that is waived is frivolous. See Tukhi, 149 A.3d at 888.
As Appellant did not object to the judgment imposed at her sentencing
hearing and failed to file a timely post-sentence motion for reconsideration,
she has waived her challenge to the discretionary aspects of her sentence.2
Thus, we are constrained to agree with counsel that the discretionary aspects
claim presented in the Anders brief is wholly frivolous.
After conducting a full examination of the underlying proceedings, as
required by Anders, we do not discern any additional meritorious issues to
be raised on appeal. Accordingly, we grant counsel’s petition to withdraw, and
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
____________________________________________
2 The transcript from the sentencing hearing confirms Appellant was properly
informed of these rights by her trial counsel. See N.T. Sentencing, 12/3/18,
at 22-23. And, Appellant completed a post-sentence rights form. See id., at
23; Statement of Post-Sentence Rights, at 1-2.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/19
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