Com. v. Wallace, S.

J-S04024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHACHAEL WALLACE :
:
Appellant : No. 620 MDA 2018
Appeal from the Judgment of Sentence April 3, 2018
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001601-2017,
CP-40-CR-0001603-2017, CP-40-CR-0003856-2017
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
MEMORANDUM BY OTT, J.: FILED MAY 07, 2019
Shachael Wallace appeals from the judgment of sentence imposed April
3, 2018, in the Luzerne County Court of Common Pleas. The court sentenced
Wallace to an aggregate term of 120 to 240 months’ imprisonment.
Contemporaneous with this appeal, Wallace’s counsel has filed a petition to
withdraw from representation and an Anders brief. See Anders v.
California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981). The sole issue addressed in the Anders brief is a challenge
to the discretionary aspects of Wallace’s sentence. For the reasons below, we
affirm, and grant counsel's petition to withdraw.
The facts of Wallace’s underlying conviction are not pertinent to our
disposition of his appeal. We briefly note that on February 2, 2018, Wallace
signed written, open plea agreements with the Commonwealth and appeared
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* Former Justice specially assigned to the Superior Court.
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before the trial court to enter guilty pleas to the following: (1) at Criminal
Docket No. CP-40-CR-0001601-2017 (“Docket No. 1601”), criminal use of a
communication facility and theft by unlawful taking (movable property);1 (2)
at Criminal Docket No. CP-40-CR-0001603-2017 (“Docket No. 1603”),
robbery in the course of committing a theft (threat of immediate serious bodily
injury);2 and (3) at Criminal Docket No. CP-40-CR-0003856-2017 ("Docket
No. 3856"), robbery in the course of committing a theft (threat of immediate
serious bodily injury) and aggravated assault.3 A presentence investigation
(“PSI”) was completed by the Luzerne County Adult Probation and Parole
Department prior to sentencing.
On April 3, 2018, the court imposed the following sentence: (1) at
Docket No. 1601, a term of 12 to 24 months’ incarceration for the criminal
use of a communication facility count and a concurrent term of four to 24
months’ incarceration for the theft crime; (2) at Docket No. 1603, a term of
60 to 120 months’ incarceration for the robbery count, to be served concurrent
to the sentences imposed at Docket No. 1601; and (3) at Docket No. 3856, a
term of 60 to 120 months’ imprisonment for the robbery count, to be served
consecutively to the previously imposed sentences, and a concurrent term of
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1 18 Pa.C.S. §§ 7512(a) and 3921(a), respectively.
2 18 Pa.C.S. § 3701(a)(1)(ii).
3 18 Pa.C.S. §§ 3701(a)(1)(ii) and 2702(a)(4), respectively.
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20 to 40 months’ incarceration for the aggravated assault offense. Wallace
did not file any post-sentence motions but did file this appeal.4, 5
Preliminary, we note that when counsel files a petition to withdraw and
accompanying Anders brief, we must first examine the request to withdraw
before addressing any of the substantive issues raised on appeal. See
Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). Here,
our review of the record reveals counsel has substantially complied with the
requirements for withdrawal outlined in Anders, supra, and its progeny.
Specifically, counsel requested permission to withdraw based upon his
determination that the appeal is “wholly frivolous,” filed an Anders brief
pursuant to the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361
(Pa. 2009), furnished a copy of the Anders brief to Wallace and advised
Wallace of his right to retain new counsel or proceed pro se. See
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4
It merits mention that Wallace’s notice of appeal lists all three docket
numbers. See Notice of Appeal, 4/6/2018. In June of 2018, the Pennsylvania
Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held
that “when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. at 977 (footnote omitted). Nevertheless,
the Walker Court specifically announced its decision would be applied
prospectively only. See id. Therefore, because the notice of appeal in the
present case was filed before Walker, we need not quash this appeal.
5 On April 6, 2018, the trial court ordered Wallace to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Wallace
filed a concise statement on April 20, 2018. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on October 1, 2018.
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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc).6 Moreover, our review of the record reveals no correspondence from
Wallace responding to the Anders brief. Accordingly, we will proceed to
examine the issue counsel identified in the Anders brief, and then conduct “a
full examination of all the proceedings, to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super.
2018) (en banc).7
The only issue identified in counsel’s Anders brief challenges the
discretionary aspects of Wallace’s sentence with respect to “the trial court’s
failure to sentence him concurrently on all of the sentences issued.” Anders
Brief at 7.
A challenge to the discretionary aspects of a sentence is not absolute,
but rather, “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and
internal citation omitted). To reach the merits of such a claim, this Court must
assess:
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6 We note that although counsel’s withdrawal petition does not provide proof
of service on Wallace, counsel’s letter to Wallace references both the brief and
the petition as having been enclosed, and the Anders brief contains proof of
service on Wallace. Further, the Anders brief does not contain citations to
the record in the summary of the procedural history and facts. Neither of
these omissions, however, impeded our review.
7 See also Commonwealth v. Dempster, 187 A.3d 266 (Pa. Super. 2018)
(en banc).
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(1) whether the appeal is timely; (2) whether [the defendant]
preserved [the] issue; (3) whether [the defendant’s] brief includes
a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013). “[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.” Cartrette, 83 A.3d at 1042.
Here, Wallace failed to challenge the discretionary aspects of his
sentence at sentencing or in a timely filed post-sentence motion. See
Pa.R.Crim.P. 720 (A)(1); see also Trial Court Opinion, 10/1/2018, at 2-4;
Anders Brief at 8 (“Instantly, [Wallace] made no objections regarding his
sentence at his hearing and did not file a post sentence motion challenging his
sentence.”). Therefore, any claims regarding the discretionary aspects of his
sentence are waived on appeal, and counsel properly determined that this
issue is frivolous.8
Lastly, in accordance with Yorgey, supra, we have independently
reviewed the certified record in order to determine if counsel’s analysis
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8 Even if we did not find waiver, we would determine that the issue lacks
merit based upon the reasoning advanced by the trial court in its Rule 1925(a)
opinion. See Trial Court Opinion, 10/1/2018, at 3-4.
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regarding the frivolous nature of the present appeal is correct. Because we
agree with counsel’s assessment that this appeal is wholly frivolous, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/07/2019
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