Com. v. Hernandez Rivera, N.

J-S60009-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NELSON HERNANDEZ RIVERA :
:
Appellant : No. 927 MDA 2019
Appeal from the Judgment of Sentence Entered January 4, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002098-2017
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 03, 2019
Appellant, Nelson Hernandez Rivera, appeals from the judgment of
sentence entered on January 4, 2019, in the Luzerne County Court of Common
Pleas. Appellant’s counsel has filed a petition to withdraw representation and
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern
withdrawal from representation on direct appeal. Appellant has not filed a
response to counsel’s petition to withdraw. Following our review, we grant
counsel’s petition to withdraw and affirm the judgment of sentence.
The affidavit of probable cause and notes of testimony from the guilty
plea and sentencing hearings reveal that Appellant and Evelyn Almonte
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S60009-19
(“Victim”), who “grew up together” and were from “the same village” in the
Dominican Republic, were in a romantic relationship, had a daughter, and
resided in Luzerne County. N.T. (Sentencing), 1/4/19, at 12–13. The affidavit
of probable cause reveals that the security guard at the Crystal Barbecue Bar
observed Appellant and Victim arguing at 11:30 p.m. on March 19, 2017. At
approximately 1:40 a.m. on March 20, 2017, Appellant “grabbed [Victim] by
the hair” when he observed her sitting with an unknown male. Affidavit of
Probable Cause, 5/9/17, at 1. Ten or fifteen minutes later, Victim left the bar,
followed by Appellant. Id. The security guard followed them outside and saw
Appellant “stabbing [Victim] viciously and repeatedly in the chest” . . . “at
least 15 times to vital parts of her body.” Id.; N.T. (Guilty Plea), 10/29/18, at
8. The security guard fired his gun twice, striking Appellant once in the leg.
Affidavit of Probable Cause, 5/9/17, at 2.
Appellant was charged with one count of attempted homicide and one
count of aggravated assault as a result of the stabbing. Appellant pled guilty
to attempted homicide1 on October 29, 2018, and the Commonwealth agreed
to withdraw the charge of aggravated assault. Plea Agreement, 10/29/18, 1–
3; N.T. (Guilty Plea), 10/29/18, at 3. The trial court sentenced Appellant on
January 4, 2019, to eighteen to forty years in prison. N.T. (Sentencing),
1/4/19, at 17. Appellant filed a post-sentence motion on January 14, 2019,
____________________________________________
1 18 Pa.C.S. §§ 2501(a) and 901(a).
-2-
J-S60009-19
which the trial court denied on May 2, 2019. Appellant filed a timely notice of
appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
Before we address any question raised on appeal, we must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc). 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 the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Id. at 1032 (citation omitted).
In addition, our Supreme Court, in Santiago, 978 A.2d 349, 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.
-3-
J-S60009-19
Counsel has complied with the Anders requirements for withdrawal as
outlined in Cartrette. Specifically, counsel requested to withdraw based upon
his determination that the appeal is wholly frivolous. Petition to Withdraw as
Counsel, 9/3/19, at ¶ 3. Additionally, counsel sent a letter to Appellant that
he attached to his withdrawal petition.2 In that letter, counsel informed
Appellant that he has filed a petition to withdraw and an Anders brief, a copy
of which he included, and he apprised Appellant of his right to proceed pro se
or with privately retained counsel. Thus, Appellant’s appellate counsel
satisfied the requirements of Anders.
Also, counsel’s brief is sufficiently compliant with Santiago. While the
brief fails to cite to the record, it sets forth the history of this case, outlines
pertinent case authority, and refers to an issue of arguable merit. Anders
Brief at 1–5. Further, the brief advances counsel’s conclusion that the appeal
is frivolous and the reason for counsel’s conclusion. Id. at 6–7. Accordingly,
we proceed to examine the issue counsel identified in the Anders brief, and
then we conduct “a full examination of all the proceedings, to decide whether
____________________________________________
2 While counsel misstates in his Petition to Withdraw that he advised Appellant
of his right to proceed pro se or with private counsel “should this … Court
grant” the petition to withdraw, Petition to Withdraw as Counsel, 9/3/19, at ¶
4 (emphasis added), instead, counsel correctly advised Appellant of his right
to immediately so proceed. See Commonwealth v. Muzzy, 141 A.3d 509(Pa. Super. 2016) (clarifying that counsel’s letter to client shall inform client
that upon counsel’s filing of petition to withdraw, client has immediate right
to proceed in appeal pro se or by privately retained counsel). As noted supra,
Appellant has not responded to counsel’s petition to withdraw.
-4-
J-S60009-19
the case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190,
1195 (Pa. Super. 2018) (en banc).
Counsel for Appellant has indicated that after review of the certified
record, there are no meritorious issues. Anders Brief at 6. However, counsel
set forth one possible issue on Appellant’s behalf: “Whether the trial court
abused its discretion in sentencing [Appellant] at the top-end of the standard
range of the Sentencing Guidelines.” 3 Id. at 1.
Appellant’s issue relates to the discretionary aspects of his sentence. It
is well settled that a challenge to the discretionary aspects of a sentence is a
petition for permission to appeal, as the right to pursue such a claim is not
absolute. Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super.
2014). “An appellant must satisfy a four-part test to invoke this Court’s
jurisdiction when challenging the discretionary aspects of a sentence,” by (1)
preserving the issue in the court below, (2) filing a timely notice of appeal,
(3) including a Rule 2119(f) statement, and (4) raising a substantial question
for our review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super.
____________________________________________
3 We note that the Sentencing Guideline ranges refer to an offender’s
minimum sentence. See Commonwealth v. Yeomans, 24 A.3d 1044, 1049
(Pa. Super. 2011) (“[T]he sentencing guidelines provide for minimum and not
maximum sentences”) (citation omitted)). Instantly, the applicable standard
minimum guideline range was ninety–240 months of imprisonment. N.T.
(Sentencing), 1/4/19, at 3; Trial Court Opinion, 7/18/19, at unnumbered 4–5
(“The standard range of the guidelines for criminal attempt to commit criminal
homicide based upon [Appellant’s] use of a deadly weapon is 90–240
months”). Here, the trial court imposed a minimum sentence of 216 months,
which is near the top of the standard range of the Guidelines.
-5-
J-S60009-19
2015) (citation omitted); Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013).
In the instant case, Appellant filed a timely appeal, the issue was
properly preserved in a post-sentence motion, and Appellant’s brief contains
a purported concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a sentence pursuant to
Pa.R.A.P. 2119(f). Accordingly, we must determine whether Appellant has
raised a substantial question that the sentence is not appropriate under 42
Pa.C.S. § 9781(b). Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010).
The determination of whether there is a substantial question is made on
a case-by-case basis, and this Court will allow the appeal only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing Code,
or (2) contrary to the fundamental norms which underlie the sentencing
process. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015). “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.” Commonwealth v. Knox, 165 A.3d 925,
929 (Pa. Super. 2017) (quoting Commonwealth v. Tirado, 870 A.2d 362,
365 (Pa. Super. 2005)). The Anders brief’s Pa.R.A.P. 2119(f) statement,
consisting of one conclusory sentence stating, “The trial court sentencing
-6-
J-S60009-19
[Appellant] in the high-end of the standard range is a substantial question
requiring discretionary review,” is insufficient to raise a substantial question.
However, because an appellant’s failure even to file a separate Rule 2119
statement, where counsel has sought to withdraw, does not preclude review
of whether an appellant’s issue is frivolous, Commonwealth v. Bynum-
Hamilton, 135 A.3d 179 (Pa. Super 2016), and Commonwealth v. Zeigler,
112 A.3d 656, 661 (Pa. Super. 2015), we will consider Appellant’s claim.
Herein, even if Appellant sufficiently articulated a substantial question,
we would determine that the sentencing court did not commit an abuse of
discretion. While the trial court found the issue waived due to the insufficient
Rule 2119 statement, in the alternative, the court concluded:
Before sentencing [Appellant], this [c]ourt had an
opportunity to review the pre-sentence investigation [(“PSI”)]
report prepared by the Luzerne County Probation Department and
consider the information contained therein. The standard range
of the guidelines for criminal attempt to commit criminal homicide
based upon [Appellant’s] use of a deadly weapon is 90 to 240
months. [Appellant’s] sentence of 216 to 480 months is within the
standard range. There is no requirement that a court impose the
minimum possible confinement. Commonwealth v. Walls, 926
A.2d 957, 965 (Pa. 2007).
[Appellant] intended to kill the victim by stabbing her
multiple times resulting in life-threatening injuries. [Appellant]
discontinued his attack after being shot by a security guard.
Application of the guidelines based on the facts of this case was
clearly appropriate. A sentence of 18 to 40 years is neither
unreasonable nor excessive. No abuse of discretion occurred.
Trial Court Opinion, 7/18/19, at unumbered 4–5.
-7-
J-S60009-19
“Sentencing is vested in the discretion of the trial court, and will not be
disturbed absent a manifest abuse of that discretion.” Commonwealth v.
Mrozik, 213 A.3d 273, 276 (Pa. Super. 2019) (citing Commonwealth v.
Downing, 990 A.2d 788, 792 (Pa. Super. 2010)). At sentencing, the trial
court indicated that it received and reviewed the PSI report. N.T.
(Sentencing), 1/4/19, at 3. When a PSI report exists, this Court presumes
that the trial court “was aware of relevant information regarding the
defendant’s character and weighed those considerations along with the
mitigating statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028,
1038 (Pa. Super. 2016). Moreover, “where a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.” Moury, 992 A.2d at 171. There is no abuse of
discretion in sentencing.
Finally, we have independently reviewed the record in order to
determine if counsel’s assessment about the frivolous nature of the present
appeal is correct. Yorgey, 188 A.3d at 1195. After review of the issue raised
by counsel and our independent review of the record, we conclude that an
appeal in this matter is frivolous. Accordingly, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
-8-
J-S60009-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/03/2019
-9-