Com. v. Lovelace, Jr., R.

J-A22009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY D. LOVELACE, JR. :
:
Appellant : No. 48 MDA 2021
Appeal from the Judgment of Sentence Entered December 1, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000689-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY LOVELACE :
:
Appellant : No. 49 MDA 2021
Appeal from the Judgment of Sentence Entered December 1, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000962-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY LOVELACE :
:
Appellant : No. 50 MDA 2021
Appeal from the Judgment of Sentence Entered December 1, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002676-2019
BEFORE: BOWES, J., OLSON, J., and KING, J.
J-A22009-21
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 22, 2021
Randy Lovelace appeals from his December 1, 2020 judgment of
sentence of twenty-four to sixty months of incarceration followed by five years
of probation, which was imposed after he pled guilty to possession of drug
paraphernalia and two counts of possession with intent to deliver (“PWID”) at
the three docket numbers listed above. Appellant’s counsel has filed a petition
to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant
counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.
The trial court authored an apt summary of the facts of these cases:
Under 19 CR 689, the Commonwealth charged Appellant via
criminal information with one count of possession of a controlled
substance stemming from a February 15, 2019 lawful traffic stop
wherein officers observed in plain view, a large lamp on the front
passenger seat of Appellant’s vehicle utilized for growing
marijuana. To that end, a K9 unit indicated the presence of
narcotics on the passenger side of Appellant’s vehicle. A
subsequent search of Appellant’s vehicle led to the discovery of
nine individual bags of marijuana, two rope candies, one bottle of
THC-infused syrup, and one THC vape pen.
Approximately two months later, relative to 19 CR 962, the
Commonwealth charged Appellant via criminal information with
two counts of [PWID], one count of possession of a controlled
substance, one count of possession of drug paraphernalia, and the
summary offense of no rear lights stemming from another lawful
traffic stop conducted on April 10, 2019. During the traffic stop,
[an officer] noticed an odor of marijuana coming from inside
Appellant’s vehicle and requested consent to search the interior of
the vehicle. Appellant knowingly, voluntarily, and intelligently
consented to the search. . . . [The officer] found thirty-two grams
of marijuana along with plastic bags, a digital scale, and $390.
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Lastly, under 19 CR 2676, the Commonwealth charged
Appellant via criminal information with one count of [PWID], one
count of possession of a controlled substance, and two counts of
possession of drug paraphernalia stemming from a November 13,
2019 incident, wherein a confidential information (hereinafter,
“C.I.”) informed narcotics detectives that he/she could buy crack
cocaine at a residence located at 337 Revere Lane in Taylor,
Pennsylvania. After completion of a controlled purchase,
detectives lawfully obtained a search warrant [for] the residence.
A search of Appellant’s bedroom inside the residence revealed
approximately thirty grams of crack cocaine, including dealer
paraphernalia consisting of baggies and containers.
Trial Court Opinion, 6/2/21, at 2-3 (cleaned up).
On September 16, 2020, Appellant pled guilty to one count of possession
of drug paraphernalia at 19 CR 689 and one count of PWID (marijuana) at 19
CR 962. On October 7, 2020, he pled guilty to one count of PWID (crack
cocaine) at 19 CR 2676. The remaining charges were withdrawn in exchange
for Appellant’s plea. On December 1, 2020, the trial court sentenced Appellant
as noted above. As to the two PWID counts, the court imposed consecutive
terms of twelve to thirty-six months of incarceration followed by two years of
probation. With respect to the paraphernalia count, the trial court imposed a
one-year term of consecutive probation. No post-sentence motions were filed.
On December 22, 2020, Appellant filed timely, counseled notices of appeal at
each of the above-captioned docket numbers. Both Appellant and the trial
court complied with the mandates of Pa.R.A.P. 1925.
In this Court, Appellant’s counsel has filed both an Anders brief and a
petition to withdraw as counsel. The following principles will guide our review:
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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.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has further clarified this procedure:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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, supra at 361.
Upon review of the counsel’s petition to withdraw and Anders brief, we
conclude that counsel has substantially complied with the technical
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requirements set forth above. Specifically, counsel has: (1) summarized the
factual and procedural history of the case with extensive citations to the
certified record; (2) referred to an issue that arguably supports the basis of
Appellant’s appeal; (3) stated her conclusion that the issue is entirely
frivolous; and (4) explained her conclusion with references to on-point legal
authorities. Furthermore, counsel provided Appellant with notice of his right
to proceed pro se or retain private representation in a letter attached to her
petition to withdraw.1 See Application to Withdraw, 7/19/21, at Exhibit A.
Thus, we will conduct an independent examination of the certified record to
determine whether we agree with counsel’s analysis and to ascertain if any
non-frivolous issues may exist which counsel overlooked. Commonwealth
v. Dempster, 187 A.3d 266, 273 (Pa.Super. 2018) (en banc).
From the outset of our review, we note that Appellant’s guilty plea has
significantly curtailed his available appellate issues. See Commonwealth v.
Lincoln, 72 A.3d 606, 609 (Pa.Super. 2013) (“Settled Pennsylvania law
makes clear that by entering a guilty plea, the defendant waives his right to
challenge on direct appeal all nonjurisdictional defects except the legality of
the sentence and the validity of the plea.”). The issue identified by counsel in
her Anders brief is straightforward: “Whether the sentences imposed were
harsh and excessive.” Anders brief at 4.
____________________________________________
1 As of the filing of this memorandum, Appellant has not responded to
counsel’s letter.
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This issue is a challenge to the discretionary aspects of Appellant’s
sentence. We note that “[a]n appellant is not entitled to the review of
challenges to the discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction.” Commonwealth v. Samuel, 102 A.3d 1001, 1006-
07 (Pa.Super. 2014). In determining whether this Court’s jurisdiction has
been properly secured, we consider whether: (1) Appellant has filed a timely
notice of appeal; (2) the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) the brief includes a statement
pursuant to Pa.R.A.P. 2119(f); and (4) Appellant has presented a “substantial
question” that the sentence appealed from is not appropriate under the
Sentencing Code. Id. In her Anders brief, counsel concludes that Appellant’s
claim of excessiveness has been waived. See Anders brief at 8 (“[T]his issue
was not raised either at his sentencing or in a motion for reconsideration of
sentence, and consequently, it may be considered waived.”). We agree.
As noted in the factors listed above, “[i]ssues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a
sentence is waived.” Commonwealth v. Griffin, 65 A.3d 932, 936
(Pa.Super. 2013) (cleaned up; emphasis in original). Instantly, there is no
dispute that Appellant filed no such post-sentence motion. Furthermore, no
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oral objection was raised regarding the allegedly excessive nature of
Appellant’s sentence. See N.T. Sentencing, 12/1/20, at 2-7. Therefore, we
agree with counsel that Appellant has waived any arguable challenge to the
discretionary aspects of his sentence. See Commonwealth v. Watson, 835
A.2d 786, 791 (Pa.Super. 2003). This Court has previously concluded that
pursuing a waived issue on appeal is frivolous. See Commonwealth v.
Kalichak, 943 A.2d 285, 291 (Pa.Super. 2008).
Furthermore, we have conducted a “full examination of the proceedings”
and have determined that this appeal is, in fact, “wholly frivolous.”
Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since
our review has not disclosed any other issues of arguable merit, we will grant
counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.
Dempster, supra at 273.
Petition of Donna M. DeVita, Esquire, to withdraw as counsel is granted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2021
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