Com. v. Zampier, M.

J-S47007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL S. ZAMPIER :
:
Appellant : No. 115 MDA 2019
Appeal from the Judgment of Sentence Entered January 11, 2019
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000670-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL S. ZAMPIER :
:
Appellant : No. 145 MDA 2019
Appeal from the Judgment of Sentence Entered January 11, 2019
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000672-2018
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 23, 2019
Appellant, Michael S. Zampier, appeals from the Judgment of Sentence
entered in the Bradford County Court of Common Pleas following his entry of
a nolo contendere plea to: Public Drunkenness, Institutional Vandalism, and
Terrorist Threats at Case No. CP-08-CR-000672-2018 (“Case No. 672”); and
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Aggravated Assault at Case No. CP-08-CR-0000670-2018 (“Case No. 670”).1
Appellant challenges the discretionary aspects of his sentence. With this
appeal, Appellant’s counsel has filed a Petition to Withdraw and an Anders2
Brief. We affirm the Judgment of Sentence and grant counsel’s Petition to
Withdraw.
A detailed recitation of the underlying facts is not necessary to our
disposition. Briefly, Appellant entered an open nolo contendere plea to the
above crimes on November 13, 2018. On January 10, 2019, the trial court
sentenced Appellant, within the sentencing guidelines, to an aggregate term
of fifty-two to one-hundred twenty months’ incarceration. Appellant did not
filed a Post-Sentence Motion from his Judgment of Sentence.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925. Appellant’s counsel has filed both an Anders Brief and a
Petition to Withdraw as Counsel. Appellant has not filed a response.
As a preliminary matter, we address counsel’s Petition to Withdraw.
“When presented with an Anders Brief, this Court may not review the merits
of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). In order for counsel to withdraw from an appeal
____________________________________________
1 18 Pa.C.S. §§ 5505, 3307(a)(3), 2706(a)(1), and 2702(a)(3), respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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pursuant to Anders, our Supreme Court has determined that counsel must
meet the following requirements:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that he sent Appellant a copy of
the Anders Brief and Petition to Withdraw, as well as a letter explaining to
Appellant that he has the right to retain new counsel, proceed pro se, or to
raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748,
751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we now have the
responsibility to “make a full examination of the proceedings and make an
independent judgment as to whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 354-55 n.5 (citation omitted). See also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (noting Anders requires the reviewing court to “review ‘the case’ as
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presented in the entire record with consideration first of issues raised by
counsel”).
We first address the issue raised by counsel in the Anders Brief: “Did
the trial court abuse its discretion when it sentenced the Appellant to an
aggregate sentence of 52 months to 120 months?” Anders Brief at 4.
A challenge to discretionary aspects of a sentence is not reviewable as
a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.
Super. 2015). Rather, an appellant must invoke this Court’s jurisdiction by,
inter alia, preserving a challenge at sentencing or in a post-sentence motion.
Id. “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. Griffin, 65 A.3d 932, 935 (Pa. Super.
2013). Here, Appellant did not preserve this challenge at his sentencing
hearing or thereafter in a Post-Sentence Motion. Accordingly, he has waived
any challenge to discretionary aspects of his sentence. See Leatherby,
supra; Griffin, supra.
When an appellant fails to raise an issue before the trial court and has,
thus, waived the issue on direct appeal, the courts consider that issue
“frivolous” for purposes of an Anders analysis. See Commonwealth v.
Tukhi, 149 A.3d 881, 888–89 (Pa. Super. 2016). See also Commonwealth
v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (“Having been waived,
pursuing this matter on direct appeal is frivolous.”). Accordingly, Appellant’s
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discretionary aspects of sentencing challenge raised in counsel’s Anders Brief
is frivolous.
Additionally, our independent review of the record does not reveal any
non-frivolous arguments available to Appellant. Santiago, 978 A.2d at 354-
55 n.5. Thus, we agree with counsel that this appeal is wholly frivolous.
Accordingly, we grant counsel’s Petition to Withdraw as Counsel and affirm
Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed. Counsel’s Petition to Withdraw as
Counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2019
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