Com. v. Allis, R.

J-S28028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RYAN JAMES ALLIS :
:
Appellant : No. 37 MDA 2019
Appeal from the Judgment of Sentence Entered December 17, 2018
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000510-2018
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 29, 2019
Ryan James Allis appeals from the judgment of sentence entered on
December 17, 2018, following his guilty plea to Accidents Involving Death or
Personal Injury, Driving While Operating Privilege Suspended or Revoked, and
Recklessly Endangering Another Person (“REAP”).1 Allis’s counsel previously
filed a petition to withdraw and an Anders2 brief. We denied the petition to
withdraw and remanded for counsel to obtain and review all of the trial
transcripts. The case now returns to us, and counsel has filed a new Anders
brief and a renewed petition to withdraw. We grant the petition to withdraw
and affirm the judgment of sentence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3742(a) and 1543(a), and 18 Pa.C.S.A. § 2705, respectively.
2 Anders v. California, 386 U.S. 738 (1967).
J-S28028-19
Allis pled guilty to the following facts. In June 2018 he was involved in
car accident that resulted in a victim being injured. Allis was the driver of one
of the vehicles involved in the accident and his license was suspended at the
time of the accident. N.T. Guilty Plea Hearing, 10/01/18, at 4, 5. Allis
“neglected to render aid to the victim of the auto accident and left her
unconscious and injured in a burning vehicle[.]” Id. at 5. Allis completed a
written plea colloquy and had no questions regarding the plea. Id. at 2. The
trial court reviewed with Allis the maximum sentence possible for each
offense; that his sentences could be consecutive; and “that the court is not
bound by any plea agreement that [Allis] and [his] attorney may have reached
with the Commonwealth[.]” Id. at 5-6. The court sentenced Allis on a later
date.
At the sentencing hearing, counsel pointed out to the court that based
on the presentence investigation report (“PSI”), “[Allis] has not been through
a rehabilitation facility[.]” N.T., Sentencing Hearing, 12/17/18, at 2. The
Commonwealth stated that less than six months prior to the instant
convictions, Allis had been released from prison after maxing out his sentence
for a felony burglary conviction. Id. at 4. It also noted that the victim in the
instant case was a passenger in Allis’s vehicle. Id.
The court then stated on the record some of the information it had
learned from the PSI, including Allis’s self-reported drug use, as well as his
level of education, and his diagnosis of depression. Id. at 6. The court
sentenced Allis to 16 to 60 months’ imprisonment for accident involving death
-2-
J-S28028-19
or personal injury and 12 to 24 months’ imprisonment for REAP. Id. at 7. The
trial court imposed the sentences consecutively for a total aggregate term of
28 to 84 months with credit for time served. Id. at 7, 9.3 The court also
imposed a fine for each conviction. Allis did not file a post-sentence motion.
Allis timely appealed and counsel filed an Anders brief and a petition to
withdraw as counsel. We denied the petition and remanded with instructions.
See Commonwealth v. Allis, 2019 WL 3814593 (Pa.Super. filed August 14,
2019). Allis’s counsel complied with our instructions on remand, and as stated
above, has filed a new Anders brief and a new petition to withdraw.
When counsel seeks to withdraw as counsel by filing an Anders brief,
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.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc). Where counsel has done the above, we then determine whether counsel
has filed a proper Anders brief. 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
____________________________________________
3 The court initially sentenced Allis to 90 days’ incarceration for the suspended
license conviction but corrected the sentencing order to reflect that no
incarceration was associated with that conviction. See N.T., Sentencing at 7,
9.
-3-
J-S28028-19
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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel has complied with the requirements to withdraw. He filed a
petition to withdraw stating that after his examination of the record, he
believes the appeal is frivolous. See Petition to Withdraw, 9/20/19. Counsel
also sent a letter informing Allis of his right to retain new counsel or proceed
pro se and to raise any points he deemed worthy of this Court’s review. We
now address whether counsel has satisfied the requirements of an Anders
brief.
Counsel’s brief complies with the Anders requirements pursuant to
Santiago. Counsel has provided a summary of the procedural history and
facts; refers to issues he believes arguably support the appeal; has set forth
his conclusion that the appeal is frivolous; and his reasons for that conclusion.
In the Anders brief, counsel identifies a possible challenge to Allis’s
judgment of sentence. He states the claim as an argument that Allis’s sentence
is “excessive in light of his circumstances, particularly with regard to [Allis’s]
treatment and rehabilitative needs.” Anders Br. at 10. Counsel concludes that
this claim is frivolous because such a claim does not raise a substantial
question and because there is no indication from the record that the court
ignored Allis’s rehabilitative needs. Id. at 13. We agree with counsel that the
appeal is frivolous, but for a different reason.
-4-
J-S28028-19
Following sentencing, Allis did not file a post-sentence motion and
therefore waived all claims relating to his sentence. See Commonwealth v.
Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citing Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa.Super. 2010)). “An issue that is waived is
frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa.Super. 2016).
We find no other non-frivolous claims upon our independent review of
the entire record. Therefore, we grant counsel’s petition to withdraw, and we
affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdrawn granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2019
-5-