Com. v. Woody, D.

J-A21021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL KENDAIL WOODY :
:
Appellant : No. 2366 EDA 2021
Appeal from the Judgment of Sentence Entered October 21, 2021
In the Court of Common Pleas of Lehigh County
Criminal Division at CP-39-CR-0002725-2020
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 30, 2022
Darryl Kendail Woody (Appellant) appeals from the judgment of
sentence imposed after he pled nolo contendere to possession with intent to
deliver a controlled substance (PWID).1 Also, Appellant’s court-appointed
counsel, Michael Brunnabend, Esquire (Counsel), has filed a petition to
withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant
Counsel’s request to withdraw and affirm the judgment of sentence.
In February 2020, the Commonwealth charged Appellant with PWID
(heroin) and other related crimes. Appellant and the Commonwealth
subsequently entered into a negotiated plea agreement. The Commonwealth
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1 35 P.S. § 780-113(a)(30).
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agreed that in exchange for Appellant’s plea of nolo contendere to PWID, the
trial court would impose a minimum sentence that would not exceed 4½ years
of imprisonment. There was no agreement with respect to the
maximum sentence. On October 21, 2021, after Appellant entered his plea,
the trial court immediately sentenced him,2 pursuant to the plea agreement,
to 4½ - 10 years of imprisonment, followed by 2 years of probation.
Appellant timely filed a post-sentence motion asserting his maximum
sentence was manifestly excessive. Appellant asked the trial court to “enter
an order modifying [Appellant’s] sentence to 4.5 years to 9 years in a State
Correctional Institution and/or eliminating the consecutive 2 years of
probation.” Post-Sentence Motion, 10/27/21, at 3. The court denied
Appellant’s motion on November 15, 2021. This timely appeal followed. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
On April 18, 2022, Counsel filed in this Court a petition to withdraw from
representation and a separate Anders brief. Appellant did not file a response.
We first address Counsel’s petition to withdraw. See Commonwealth v.
Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (“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.”). Before being permitted
to withdraw pursuant to Anders, counsel must satisfy certain procedural and
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2 Appellant waived his right to a pre-sentence investigation report.
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substantive requirements. Commonwealth v. Tejada, 176 A.3d 355, 358
(Pa. Super. 2017). Procedurally, 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 [Anders] 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 359 (citation omitted). Substantively, counsel must file an Anders
brief in which counsel:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel’s conclusion that the appeal is frivolous; and (4) state[s]
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. It is settled law that “[s]ubstantial compliance
with the Anders requirements is sufficient.” Commonwealth v. Redmond,
273 A.3d 1247, 1252 (Pa. Super. 2022) (emphasis added).
Counsel has substantially complied with Anders’ procedural and
substantive requirements. Counsel states in his petition that he conducted a
thorough review of the record, Appellant’s file, and applicable case law, and
thereafter found Appellant’s issue to be frivolous. Petition to Withdraw as
Counsel, 4/18/22, at ¶¶ 3-4. Counsel provided Appellant with a copy of the
Anders brief, which summarizes the facts and procedural history, includes an
issue that could arguably support Appellant’s appeal, and explains Counsel’s
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assessment of why Appellant’s issue is frivolous. See Anders Brief at 7-14.
Counsel also attached to his petition to withdraw a copy of the letter he sent
to Appellant (Anders Letter), in which Counsel advised Appellant of his right
to retain private counsel or proceed pro se. Petition to Withdraw as Counsel,
4/18/22, Ex. A (Anders Letter).3 Accordingly, we review Appellant’s issue
presented in Counsel’s Anders brief. We also conduct an independent review
of the record to determine whether Appellant’s appeal is, in fact, wholly
frivolous. See Santiago, 978 A.2d at 358; see also Commonwealth v.
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3 This Court explained that “[a]ttending the [Anders] brief must be a letter
that advises the client of his right to: (1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant
deems worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Orellana, 86 A.3d 877,
880 (Pa. Super. 2014) (citation omitted); see also Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa. Super. 2005) (observing that appellant’s
direct appeal counsel, in the letter sent to appellant in connection with
counsel’s request to withdraw, “incorrectly implied that [a]ppellant is entitled
to different court-appointed counsel. Rather, [a]ppellant is entitled only to
retain new counsel or to proceed pro se should he choose to do so.” (emphasis
added)).
Here, Counsel’s Anders Letter incorrectly advises Appellant that he may
“request the appointment of counsel from the Superior Court should you feel
that there are reasons for the same.” Anders Letter, 4/13/22, at 2
(unnumbered). This defect did not unduly prejudice Appellant because
Counsel’s Anders Letter was otherwise compliant, and Appellant neither
asked this Court to appoint new counsel nor responded to Counsel’s petition
to withdraw. See Redmond, supra (substantial compliance with the Anders
requirements is sufficient); Cf. Millisock, 873 A.2d at 752 (denying counsel’s
petition to withdraw, and remanding with instructions for counsel to either file
an advocate’s brief or a compliant Anders brief, and to mail appellant a letter
correctly advising him of his rights if counsel is permitted to withdraw);
Commonwealth v. Woods, 939 A.2d 896, 901 (Pa. Super. 2007) (same).
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Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc) (“part and parcel
of Anders is our Court’s duty to review the record to insure no issues of
arguable merit have been missed or misstated.”).
Counsel’s Anders brief presents the following issues:
A. Whether the lower court abused its sentencing discretion when
the court sentenced [Appellant] to a period of incarceration
that complied with the plea agreement and had a minimum
sentence as agreed to by [Appellant], but[] imposed an
excessive maximum sentence?
B. May [] Counsel be permitted to withdraw after a conscientious
review of the issues and the facts pursuant to the Ander[]s
case?
Anders Brief at 7 (unnecessary capitalization omitted).
Appellant challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. Commonwealth v. Solomon,
247 A.3d 1163, 1167 (Pa. Super. 2021) (en banc). Rather, where the
appellant has preserved the challenge by raising it in a post-sentence motion
and timely appealing, he must (1) include in his brief a statement of the
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f);
and (2) show that there is a substantial question that the sentence is not
appropriate under the Sentencing Code. Id.; see also 42 Pa.C.S.A.
§ 9781(b).
Here, the Anders brief includes a Rule 2119(f) statement. Anders Brief
at 10. Therefore, we next determine whether the statement presents a
substantial question for review. See Commonwealth v. Brown, 249 A.3d
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1206, 1211 (Pa. Super. 2021) (“We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists.” (citation
omitted)). “A substantial question exists 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) (en
banc) (citation omitted).
Appellant claims in his Rule 2119(f) statement that the 10-year
maximum term of his sentence is manifestly excessive, disproportionate to
the crime he committed, and not in accord with his need for rehabilitation.
Anders Brief at 10. Appellant further asserts the sentencing court “did not
engage in any meaningful colloquy or inquiry into [Appellant’s] situation and
background prior to” imposing sentence. Id.This Court has stated, “[w]hen the sentence is within the range
prescribed by statute, a challenge to the maximum sentence imposed does
not set forth a substantial question as to the appropriateness of the sentence
under the guidelines.” Commonwealth v. Yeomans, 24 A.3d 1044, 1049
(Pa. Super. 2011) (citation omitted). Further, “a generic claim that a sentence
is excessive does not raise a substantial question for our review.”
Commonwealth v. Andrews, 213 A.3d 1004, 1017 (Pa. Super. 2019)
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(citation omitted); Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.
Super. 2008) (same).
In this case, Appellant’s 10-year maximum sentence is well below the
statutory maximum he could have received, i.e., 30 years of imprisonment.
See 35 P.S. § 780-115(a) (increased penalties for second or subsequent PWID
convictions); see also id. § 780-113(f)(1). Accordingly, Appellant’s claim of
an excessive maximum sentence fails to present a substantial question. See
Yeomans, supra; Andrews, supra. However, Appellant’s claim that the
trial court failed to consider his “situation and background” prior to sentencing
does raise a substantial question. See Commonwealth v. Luketic, 162 A.3d
1149, 1162 (Pa. Super. 2017) (“A claim that a sentencing court ... sentenced
a defendant without taking into account his ... character and background ...
raises a substantial question that the sentence is inappropriate under the
Sentencing Code.”).
Accordingly, we address the merits of Appellant’s claim, mindful of our
standard of review: “Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on appeal absent
a manifest abuse of discretion.” Commonwealth v. Moye, 266 A.3d 666,
676 (Pa. Super. 2021) (citation omitted).
An abuse of discretion is more than just an error in judgment and,
on appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.
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Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation
omitted).
The Pennsylvania Supreme Court has explained the reason for our
deferential standard of review as follows:
[T]he sentencing court is in the best position to measure
various factors and determine the proper penalty for a particular
offense based upon an evaluation of the individual circumstances
before it. Simply stated, the sentencing court sentences flesh-and-
blood defendants and the nuances of sentencing decisions are
difficult to gauge from the cold transcript used upon
appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that should not
be lightly disturbed.
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (emphasis added;
citations omitted).
The Sentencing Code mandates that a sentencing court “shall follow the
general principle that the sentence imposed should call for total confinement
that is consistent with … the protection of the public, the gravity of the offense
as it relates to the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “If the
sentencing court, after considering the appropriate section 9721 sentencing
factors, states valid reasons for its sentence, which are supported by the
record, this Court must affirm the decision even if the particular panel does
not agree with the weight the sentencing court accorded them.”
Commonwealth v. Marts, 889 A.2d 608, 616 (Pa. Super. 2005).
In denying Appellant’s post-sentence motion, the trial court explained:
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In imposing [Appellant’s] sentence, this court considered the
“protection of the public, the gravity of the offense as it relates to
the impact on the victim and the community, the defendant’s
rehabilitative needs, and the sentencing guidelines.” 42 Pa.C.S.A.
§ 9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.
Super. 2008). This Court was cognizant of this thirty-seven (37)
year old [Appellant’s] prior criminal record and the fact that he
has been involved in the criminal justice system for more than half
of his life. His prior record consists of, inter alia, juvenile
adjudications for receiving stolen property, aggravated assault,
fleeing, and escape, as well as … adult convictions for person not
to possess [a] firearm, firearms not to be carried without a license,
false identification, recklessly endangering another person, and
[PWID]. Based on his prior offenses, this court concluded that
[Appellant] has a proclivity towards violence in the community and
to carry weapons, even though he is prohibited from doing so.
Using its discretion, this court imposed a sentence that is
appropriate in light of the facts surrounding the case and is in
compliance with the plea agreement.
Order, 11/15/21, at 3, n.1 (unnecessary capitalization omitted); see also
Trial Court Rule 1925(a) Opinion, 12/20/21, at 2 (relying on the above
reasoning).
Our review confirms that the trial court’s reasoning is supported by the
record and the law, and we discern no abuse of its considerable discretion in
imposing Appellant’s sentence. Contrary to Appellant’s claims, his maximum
sentence is neither excessive nor unreasonable; the trial court did not fail to
consider Appellant’s character and background; and the court stated valid
reasons for its sentence. Marts, supra.
Because Appellant’s claim lacks merit and is frivolous, and the record
reveals no issues of arguable merit Appellant could raise, we grant Counsel’s
petition to withdraw and affirm Appellant’s judgment of sentence.
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Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2022
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