Com. v. Oliver, T.

J-S46035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TOBY L. OLIVER, :
:
Appellant : No. 2210 MDA 2013
Appeal from the Judgment of Sentence entered on June 19, 2012
in the Court of Common Pleas of Lackawanna County,
Criminal Division, No. CP-35-CR-0001874-2011
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014
entered following his conviction of three counts each of possession of a
controlled substance, and one count each of possession of drug
paraphernalia and possession of a small amount of marijuana.1 Additionally,
-appointed counsel, ,
has filed a Petition to Withdraw as counsel and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738, 744 (1967). We grant
w, and affirm the judgment of sentence.
In June 2011, a confidential police informant, cooperating with the
Lackawanna County United Drug Task Force, conducted four controlled buys
a.
1
See 35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), (a)(31).
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residence large amounts of heroin and cocaine, as well as drug
paraphernalia and marijuana. Oliver was arrested and charged with the
above-mentioned offenses in a multiple-count Criminal Complaint, after
which the matter proceeded to a jury trial. In March 2012, the jury found
Oliver guilty on all counts.
Prior to sentencing, the Commonwealth gave Notice of its intent to
pursue a mandatory minimum sentence under two provisions of 18 Pa.C.S.A.
§ 7508, which provide for enhanced mandatory minimum sentences where
the offender possessed a certain amount of narcotics and had been
See
id. § 7508(a)(3)(ii), and (a)(7)(i); see also Commonwealth v. Vasquez,
753 A.2d 807, 809 (Pa. 2000) (holding that that a conviction in a multiple-
count compl
triggering the enhancement provisions of 18 Pa.C.S.A. § 7508).
PWID convictions (counting one of these PWID convictions as a prior drug
trafficking conviction under Vasquez), and imposed an aggregate prison
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sentence of 172 months to 348 months, plus thirteen years of probation.2
Oliver filed a post-sentence Motion for Reconsideration of Sentence, arguing
that the trial court imposed an illegal sentence and inappropriately applied
Approximately four months later, in October 2012, Oliver filed a
Petition under the Post Conviction Relief Act3 seeking reinstatement of his
direct appeal rights, nunc pro tunc. The trial court permitted Oliver to file an
appeal nunc pro tunc, and appointed Attorney Lynott to represent Oliver.
Attorney Lynott timely filed a Notice of Appeal. In response, the trial court
2
In his Anders
enhancement provisions of section 7508, as follows:
[Oliver] was found guilty of [three separate counts of
PWID, concerning his possession of] 4.8 grams of heroin, 13.4
grams of [powder] cocaine[,] and 13.4 grams of crack cocaine.
h]eroin[, where the amount of heroin possessed is over one
gram but less than five grams,] carries a mandatory minimum
sentence of two [] years and[,] for a second offense[,] three []
years. 18 Pa.C.S.A. [§] 7508(a)(7)(i). [Oliver] received a
sentence of three [] to six [] years [in prison for his PWID
(heroin) conviction]. For [PWID] cocaine, [where the amount of
cocaine possessed is more than 10 grams but less than 100
grams,] there is a mandatory sentence of three [] years for [a]
first offense[,] and five [] years for [a] second offense[]. 18
Pa.C.S.A. [§] 7508(a)(3)(ii). [Oliver] received a sentence of five
[] to ten [] years [in prison] for each [of his two] count[s] of
[PWID c]ocaine[.]
Anders Brief at 7.
3
See 42 Pa.C.S.A. §§ 9541-9546.
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ordered Oliver to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, and Oliver timely filed a Concise Statement.
Subsequently, Attorney Lynott filed with this Court an Anders Brief
l, asserting that the claim that
Oliver wished to raise on appeal was wholly frivolous and that there are no
other meritorious issues to present on appeal. Oliver filed a pro se response
Petition to Withdraw and
Anders Brief.4
whether Attorney Lynott has complied with the dictates of Anders and its
progeny in petitioning to withdraw from representation. Pursuant to
Anders, when counsel believes that an appeal is frivolous and wishes to
withdraw from representation, he must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deem
attention. The determination of whether the appeal is frivolous
remains with the [appellate] court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders brief must
4
Oliver did not retain alternate counsel for this appeal.
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(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
conclusion that the appeal is frivolous; and (4) state
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
counsel has satisfied the Anders
independent jud
Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006)
(citation and brackets omitted).
Our review of Attorney Anders Brief and Petition to Withdraw
reveals that he has substantially complied with the requirements of
Anders/Santiago.5 , 957 A.2d 1265,
1267 (Pa. Super. 2008) (stating that substantial compliance with the
requirements to withdraw as counsel will satisfy the Anders criteria).
Additionally, Attorney Lynott has properly (1) provided Oliver with a copy of
both the Anders Brief and Petition to Withdraw; and (2) appended to the
Anders Brief a copy of the letter that he sent to Oliver advising him of his
right to retain new counsel, proceed pro se, or raise any additional points
5
Anders Brief)
incorrectly states that counsel seeks to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
This matter falls under Anders and its progeny, not Turner/Finley.
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examine the record to make an independent determination of whether
In the Anders Brief, Attorney Lynott explains that Oliver wishes to
sentencing enhancement provisions set forth in 18 Pa.C.S.A.
§ 7508(a)(7)(i) and (a)(3)(ii), which allegedly resulted in an illegal sentence.
See Anders Brief at 6.
convictions. See id. at 7-8.
pro se iling an
Anders Brief, and contends that the sentencing court imposed an illegal
sentence by applying the enhancement provisions of section 7508(a)(3)(ii)
decision in Alleyne v. U.S., 133 S. Ct. 2151 (U.S. 2013) (holding that any
element of the crime that must be submitted to a jury and found beyond a
reasonable doubt).6 Response, 4/29/14, at 7. We disagree.
This Court has explained the holding in Alleyne as follows:
According to the Alleyne Court, a fact that increases the
sentencing floor is an element of the crime. Thus, it ruled that
6
Alleyne decision, Alleyne applies retroactively. See Commonwealth v.
Thompson, 2014 Pa. Super. 106, at **31-33 (Pa. Super. 2014);
Commonwealth v. Munday, 78 A.3d 661, 665-66 (Pa. Super. 2013).
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facts that mandatorily increase the range of penalties for a
defendant must be submitted to a fact-finder and proven beyond
a reasonable doubt. The Alleyne decision, therefore, renders
those Pennsylvania mandatory minimum sentencing statutes
that do not pertain to prior convictions constitutionally
infirm insofar as they permit a judge to automatically increase a
standard.
Commonwealth v. Watley, 81 A.3d 108, 117-18 (Pa. Super. 2013) (en
banc) (emphasis added; footnotes omitted).
In the instant case, the sentencing court applied the enhancement
provisions of section
Alleyne.
no non-frivolous issues that Oliver could present on appeal. Accordingly, we
grant Attorney Lynott permission to withdraw under the precepts of Anders,
and affirm the judgment of sentence.
Petition to Withdraw as counsel granted; judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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