Com. v. Ortiz-Reyes, J.

J-S02021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN ORTIZ-REYES :
:
Appellant : No. 978 MDA 2022
Appeal FROM the Judgment of Sentence Entered May 27, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005175-2020
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY OLSON, J.: FILED: MARCH 17, 2023
Appellant, Juan Ortiz-Reyes, appeals from the judgment of sentence
entered on May 27, 2022, as made final by the denial of Appellant’s
post-sentence motion on June 9, 2022. On this direct appeal, Appellant’s
counsel has filed both a petition for leave to withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude
that Appellant’s counsel has complied with the procedural requirements
necessary to withdraw. Moreover, after independently reviewing the record,
we conclude that the instant appeal is wholly frivolous. We, therefore, grant
counsel’s petition for leave to withdraw and affirm Appellant’s judgment of
sentence.
J-S02021-23
On April 5, 2022, Appellant entered an open guilty plea to two counts of
failure to register with the Pennsylvania State Police.1 On May 27, 2022, the
trial court sentenced Appellant to serve four to ten years in prison on the first
count and to serve a concurrent term of four to ten years in prison on the
second count. Both sentences fall within the standard range of the sentencing
guidelines. See N.T. Sentencing Hearing, 5/27/22, at 4; Appellant’s Brief at
8-9.
On June 6, 2022, Appellant filed a timely post-sentence motion, where
he claimed that his sentence was excessive because the trial court “failed to
properly consider [Appellant’s] medical history[, including Appellant’s
pericarditis, cardiomyopathy, and atrial fibrillation,] . . . and the nexus
between [Appellant’s medical conditions] and his community-based needs.”
Appellant’s Post-Sentence Motion, 6/6/22, at 3. The trial court denied
Appellant’s post-sentence motion on June 9, 2022 and Appellant filed a timely
notice of appeal. On appeal, Appellant’s counsel filed a petition for leave to
withdraw and counsel accompanied this petition with an Anders brief.
Before reviewing the merits of this appeal, this Court must first
determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
____________________________________________
1 18 Pa.C.S.A. § 4915.2(a)(1).
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To withdraw under Anders, counsel must satisfy certain technical
requirements. First, counsel must “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.” Miller, 715 A.2d at 1207.
Second, 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.
Finally, counsel must furnish a copy of the Anders brief to his or her
client and advise the client “of [the client’s] right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court’s attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. . . .
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[T]his review does not require this Court to act as counsel or otherwise
advocate on behalf of a party. Rather, it requires us only to conduct a review
of the record to ascertain if[,] on its face, there are non-frivolous issues that
counsel, intentionally or not, missed or misstated. We need not analyze those
issues of arguable merit; just identify them, deny the motion to withdraw, and
order counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel complied with all of the above procedural
obligations. We must, therefore, review the entire record and analyze whether
this appeal is, in fact, wholly frivolous. Our analysis begins with the claims
raised in the Anders brief: 1) whether Appellant’s sentence is manifestly
excessive and 2) whether Appellant knowingly, intelligently, and voluntarily
entered his guilty plea. See Appellant’s Brief at 8-11.
Appellant's first claim on appeal challenges the discretionary aspects of
his sentence. “[S]entencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent an abuse of
discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.
2001).
Pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
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As this Court explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, [42 Pa.C.S.A.]
§ 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
Here, Appellant filed a timely post-sentence motion and notice of appeal.
Further, Appellant's post-sentence motion claimed that his sentence is
excessive because the trial court failed to consider his various physical
ailments. See Appellant’s Post-Sentence Motion, 6/6/22, at 3. While
Appellant filed a timely notice of appeal and preserved his sentencing claim in
a timely post-sentence motion, he failed to include a Rule 2119(f) statement
in his appellate brief. Nonetheless, because the Commonwealth did not file a
brief and, therefore, did not object to Appellant’s failure to include a Rule
2119(f) statement, we will not find Appellant’s discretionary sentencing claim
waived. Commonwealth v. White, 193 A.3d 977, 982 (Pa. Super. 2018).
Thus, Appellant preserved his current appellate claim. We will now determine
whether Appellant's claim presents a “substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.” Cook, 941
A.2d at 11.
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Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge's actions were: (1) inconsistent with
a specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. McKiel,
629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748
A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.
2000). Additionally, in determining whether an appellant has raised a
substantial question, we must limit our review to Appellant’s Rule 2119(f)
statement. Goggins, 748 A.2d at 726. This limitation ensures that our
inquiry remains “focus[ed] on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary only to decide
the appeal on the merits.” Id. at 727 (emphasis omitted).
Appellant contends that his sentence is excessive because the trial court
failed to consider his poor physical health and various medical conditions. See
Appellant’s Brief at 8-10. This Court has held that “an excessive sentence
claim – in conjunction with an assertion that the court failed to consider
mitigating factors – raises a substantial question.” Commonwealth v.
Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (citations omitted), citing
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014); see also
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (same). Nevertheless, Appellant's claim is frivolous because, during the
sentencing hearing, the trial court demonstrated it was well aware of – and
thoroughly considered – Appellant's poor physical health and various medical
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conditions. See N.T. Sentencing Hearing, 5/27/22, at 2 (trial court
acknowledged that it read and considered the pre-sentence investigation
report, which summarized Appellant’s various medical conditions) and 6
(Appellant’s attorney summarized Appellant’s various medical conditions);
see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“[i]t would
be foolish, indeed, to take the position that if a court is in possession of the
facts, it will fail to apply them to the case at hand”).
Next, Appellant claims that he did not knowingly, intelligently, or
voluntarily enter his guilty plea. This claim is waived, as Appellant did not
raise it before the trial court. See Commonwealth v. Lincoln, 72 A.3d 606,
609-610 (Pa. Super. 2013) (“[a] defendant wishing to challenge the
voluntariness of a guilty plea on direct appeal must either object during the
plea colloquy or file a motion to withdraw the plea within ten days of
sentencing. Failure to employ either measure results in waiver”) (citations
omitted). Further, since the claim on appeal is waived, the claim is frivolous
under Anders. Commonwealth v. Tukhi, 149 A.3d 881, 888-889 (Pa.
Super. 2016) (holding that, under Anders, “[a]n issue that is waived is
frivolous”); Commonwealth v. Kalichak, 943 A.3d 285, 291 (Pa. Super.
2008) (holding: “this issue has been waived. Having been waived, pursuing
this matter on direct appeal is frivolous”).
We have independently considered the issues raised within Appellant’s
brief and we have determined that the claims are frivolous. In addition, after
an independent review of the entire record, we see nothing that might
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arguably support this appeal. The appeal is therefore wholly frivolous.
Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s
petition for leave to withdraw.
Petition for leave to withdraw appearance granted. Judgment of
sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/17/2023
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