Com. v. Schroder, A.

J-S03022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADAM SCHRODER
Appellant No. 810 WDA 2016
Appeal from the Judgment of Sentence dated April 29, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002403-2015
CP-25-CR-0003152-2015
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED MARCH 02, 2017
Appellant, Adam Schroder, appeals from the aggregate judgment of
sentence of 1-12 months’ confinement followed by 4 years’ probation, which
was imposed after he pleaded guilty to use/possession of drug paraphernalia
at Docket No. CP-25-CR-0002403-2015 and to theft by unlawful taking –
movable property at Docket No. CP-25-CR-0003152-2015.1 With this
appeal, appellate counsel has filed a petition to withdraw and an Anders2
brief, stating that the appeal is wholly frivolous. After careful review, we
affirm and grant counsel’s petition to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(32) and 18 Pa.C.S. § 3921(a), respectively.
2
Anders v. California, 386 U.S. 738 (1967).
J-S03022-17
On July 18, 2015, Appellant had “a multicolored glass smoking pipe for
the purpose of ingesting a controlled substance” – specifically, marijuana –
in his possession while in “the Borough of North East, Erie County.” N.T.,
3/8/16, at 9-10.
On September 4, 2015, Appellant “took a laptop, a PlayStation and
several games having a total value of $600” and “a wooden peace sign
necklace and a pair of sunglasses having a value of $25” from a home also
in the Borough of North East; Appellant had “the intention of depriving the
owner or owners of that property.” N.T., 3/8/16, at 10.
On March 8, 2016, Appellant pleaded guilty to the above charges. On
April 29, 2016, the trial court sentenced Appellant to 1-12 months’
confinement followed by 3 years’ probation at Docket No. 3152-2015 and to
1 year of probation at Docket No. 2403-2015, to be served consecutively.
N.T., 4/29/16, at 9-10. The trial court explained its reasoning for imposing
this sentence on the record, as follows:
[The trial court has] read the presentence report. [It has] read
the Sentencing Guidelines. [It has] listened to the evidence
presented here today, and do[es] take into account [Appellant’s]
age.[3] [Appellant] graduated from high school, and that
[Appellant] accept[s] responsibility by way of a plea. Although it
was a favorable plea. But, nonetheless, [Appellant has] pled to
the theft charge.[4]
____________________________________________
3
Appellant was 19 years old at sentencing.
4
Appellant also pleaded guilty to the drug paraphernalia charge.
-2-
J-S03022-17
Id. at 9.
On May 5, 2016, Appellant filed a motion for post-sentence relief,
which was denied by order the next day. On June 1, 2016, Appellant filed
this timely direct appeal.
On October 27, 2016, appellate counsel filed an Anders Brief, in which
she presented the following issue:
Whether the [A]ppellant’s sentence is manifestly excessive,
clearly unreasonable and inconsistent with the objectives of the
Sentencing Code?
Anders Brief at 3. On the same day, appellate counsel sent a letter to
Appellant, informing him that she intended to file a petition for leave to
withdraw, and she filed her petition to withdraw. Appellant has not filed a
pro se response to that petition. On November 28, 2016, the
Commonwealth sent a letter to this Court stating that it did not intend to file
a responsive brief.
“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) (internal citation omitted). An Anders brief shall comply with the
requirements set forth by the Supreme Court of Pennsylvania in
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009):
[W]e hold that in 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
-3-
J-S03022-17
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.
Counsel seeking to withdraw on direct appeal must meet the following
obligations to his or her client.
Counsel must also provide a copy of the Anders brief to
his client. Attending the 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 the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks, citation, and brackets omitted). “Once counsel has
satisfied the above requirements, it is then this Court’s duty to conduct its
own review of the trial court’s proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en
banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.
2004)). Finally, “this Court must conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.
Super. 2015) (footnote and citation omitted).
In this appeal, we observe that appellate counsel’s October 27, 2016
correspondence to Appellant provided a copy of the Anders Brief to
-4-
J-S03022-17
Appellant and advised Appellant of his right either to retain new counsel or
to proceed pro se on appeal to raise any points he deems worthy of the
court’s attention. Further, appellate counsel’s Anders Brief, at 4, complies
with prevailing law in that counsel has provided a procedural and factual
summary of the case with references to the record. Appellate counsel
additionally advances relevant portions of the record that arguably support
Appellant’s claims on appeal. Id. at 8. Ultimately, appellate counsel cites
her reasons and conclusion that Appellant’s “case presents no non-frivolous
issues for review.” Id. at 9. Counsel’s Anders brief and procedures
therefore comply with the requirements of Santiago and Orellana. We
therefore proceed to conduct an independent review to ascertain whether
the appeal is indeed wholly frivolous.
We recognize that “Pennsylvania law makes clear that by entering a
guilty plea, the defendant waives his right to challenge on direct appeal all
non[-]jurisdictional defects except the legality of the sentence and the
validity of the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.
Super. 2013) (citation omitted), appeal denied, 87 A.3d 319 (Pa. 2014). “A
defendant,” however, “who has pled guilty may challenge the discretionary
aspects of his sentence as long as the defendant did not agree to a
negotiated sentence as part of a plea agreement.” Commonwealth v.
Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000) (citation omitted).
Appellant has not challenged the validity of his guilty pleas.
-5-
J-S03022-17
Appellant challenges only a discretionary aspect of his sentence — its
length. “Challenges to the discretionary aspects of sentencing do not entitle
an appellant to an appeal as of right.” Commonwealth v. Glass, 50 A.3d
720, 726 (Pa. Super. 2012) (citation omitted), appeal denied, 63 A.3d 774(Pa. 2013). Instead, this Court has set forth an analytical framework under
which we determine whether we may exercise our discretion to hear such an
appeal:
Before we reach the merits of this issue, we must engage in a
four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant'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. . . . [I]f the appeal
satisfies each of these four requirements, we will then proceed to
decide the substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(brackets and citation omitted), appeal denied, 109 A.3d 678 (Pa. 2015).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Glass, 50 A.3d at 727.
In the current case, Appellant filed a timely notice of appeal and
properly preserved this issue in his post-sentence motion. Additionally, the
Anders brief contains a concise statement of the reasons for which he seeks
allowance of an appeal, in compliance with Rule 2119(f) of the Rules of
Appellate Procedure. See Anders Brief at 4-6. The Rule 2119(f) statement
sets forth the claim that the sentencing court sentenced within the
-6-
J-S03022-17
guidelines but failed to consider the factors set forth in Section 9721(b) of
the Sentencing Code. Section 9721(b) requires the sentencing court to
“follow the general principle that the sentence imposed should call for
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. §
9721(b). Appellant’s argument therefore raises a substantial question. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
(en banc) (“[a]rgument that the sentencing court failed to consider the
factors proffered in 42 Pa.C.S. § 9721 does present a substantial question”;
citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). Hence, we will
consider the substantive merits of his sentencing claim.
Our standard of review is as follows:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), appeal
denied, 117 A.3d 297 (Pa. 2015) (citation omitted). “A sentencing court
need not undertake a lengthy discourse for its reasons for imposing a
sentence or specifically reference the statute in question, but the record as a
whole must reflect the sentencing court's consideration of the facts of the
-7-
J-S03022-17
crime and character of the offender.” Commonwealth v. Schutzues, 54
A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013)
(citation omitted).
The trial court explained:
In imposing a sentence, the [c]ourt considered the presentence
investigation report (PSI), Appellant’s educational background,
rehabilitative potential and his family support. These factors
were balanced with the substantial impact the crimes had on the
victims in this case and the need for a lengthy period of
supervision to help Appellant get the help he needs from the
community to address his addiction.
Tr. Ct. Op., 7/11/16, at 3; see also N.T., 4/29/16, at 9 (the trial court
“[took] into account [Appellant’s] age,” that “[Appellant] graduated from
high school, and that [Appellant] accept[s] responsibility” for his crimes).
Thus, the trial court considered Appellant’s character – including his youth,
education, and family; his rehabilitative needs; and the impact of his actions
on his victims and on the community and public. See 42 Pa.C.S. § 9721(b);
Schutzues, 54 A.3d at 99. The trial court also stated during the sentencing
hearing that it had read the sentencing guidelines, which take into account
the gravity of the offenses. N.T., 4/29/16, at 9; see 42 Pa.C.S. § 9721(b).
Accordingly, the trial court properly reviewed all of the requisite factors and
did not abuse its discretion when imposing Appellant’s sentence.
Consequently, Appellant’s sentence is not manifestly excessive or
unreasonable.
-8-
J-S03022-17
Based on the foregoing, we agree with appellate counsel that the
sentencing issue raised by Appellant lacks merit. In addition, we have
reviewed the certified record consistent with Flowers, 113 A.3d at 1250,
and have discovered no additional arguably meritorious issues. Therefore,
we grant appellate counsel’s petition to withdraw and affirm the trial court’s
judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2017
-9-