Com. v. Glover, Z.

J-A16037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHARY NELSON GLOVER :
:
Appellant : No. 1918 MDA 2019
Appeal from the Judgment of Sentence Entered October 8, 2019
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003344-2018
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 28, 2020
Zachary Nelson Glover (“Glover”) appeals from the judgment of
sentence imposed following the entry of his negotiated guilty plea to
aggravated assault.1 Additionally, Glover’s counsel, Sean M. Fitzgerald,
Esquire (“Attorney Fitzgerald”), has filed an Application to Withdraw as
Counsel, and a brief pursuant to Anders v. California, 368 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant
Attorney Fitzgerald’s Application to Withdraw, and affirm Glover’s judgment
of sentence.
On May 26, 2018, at approximately 2:30 a.m., Glover was involved in a
drive-by shooting at an apartment located at 44 South 4th Street in Hamburg,
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1 18 Pa.C.S.A. § 2702(a)(1).
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Berks County. Glover, operating a black sedan, drove up to the apartment
and fired a bullet into the apartment, striking Michelle Bowman in the hand.
Glover drove away, then turned around and returned to the apartment.
Glover fired a second bullet into the apartment before leaving the area.
On October 8, 2019, Glover entered a negotiated guilty plea to
aggravated assault and, in exchange, the remaining charges were dismissed
by the trial court. Additionally, Glover and the Commonwealth agreed to a
sentence of 72 to 156 months in prison. Glover also agreed to pay restitution
in the amount of $8,158.47. The trial court sentenced Glover, in accordance
with the plea agreement, to 72 to 156 months in prison, with credit for time
served, plus fines, costs, and restitution.
Glover filed a timely post-sentence Motion, challenging the discretionary
aspects of his sentence. In his post-sentence Motion, Glover asserted that his
sentence was not 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 on the rehabilitative needs of the defendant. Further, Glover
asserted that he had a prior record score of zero, and the objectives of 42
Pa.C.S.A. § 9721(b) could have been satisfied by a lesser sentence. On
October 23, 2019, the trial court denied Glover’s post-sentence Motion.
Glover filed a timely Notice of Appeal and court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal. Attorney
Fitzgerald subsequently filed, with this Court, an Application to Withdraw as
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Counsel and a brief pursuant to Anders. Glover did not file a pro se brief, nor
did he retain alternate counsel for this appeal.
Before addressing Glover’s issue on appeal, we must determine whether
Attorney Fitzgerald has complied with the dictates of Anders and its progeny
in petitioning to withdraw from representation. See Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen
presented with an Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw.”).
Pursuant to Anders, when counsel believes that an appeal is frivolous and
wishes to withdraw from representation, he or she must
(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 deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders brief 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
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case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court must then “conduct a simple review of
the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
Instantly, our review of the Anders Brief and the Application to
Withdraw reveals that Attorney Fitzgerald has substantially complied with
each of the technical requirements of Anders/Santiago. See
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating
that counsel must substantially comply with the requirements of Anders).
Attorney Fitzgerald indicates that he has made a conscientious examination of
the record and determined that an appeal would be frivolous. The record
further reflects that Attorney Fitzgerald has furnished a copy of the Anders
Brief to Glover, advised Glover of his right to retain new counsel or proceed
pro se, or raise any additional points that he deems worthy of this Court’s
attention.2 Additionally, the Anders Brief substantially complies with the
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2 Initially, Attorney Fitzgerald’s Application to Withdraw, filed April 1, 2020,
did not include the letter advising Glover of his rights, as required by this
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requirements of Santiago. As Attorney Fitzgerald has complied with all of
the requirements for withdrawing from representation, we will examine the
record and make an independent determination of whether Glover’s appeal is,
in fact, wholly frivolous.
In the Anders Brief, Attorney Fitzgerald presents the following issue for
our review: “Whether the sentencing court abused its discretion in imposing
an excessive sentence on [Glover,] when the sentence imposed is inconsistent
with the protection of the public, the gravity of the offense, the impact on the
victim, and the rehabilitative needs of [Glover].” Anders Brief at 9.
Glover argues that the trial court “failed to follow the general standards
for sentencing set forth [in] 42 Pa.C.S.A. § 9721(b).” Brief for Appellant at
17. Glover asserts that the trial court imposed a sentence that was
“inconsistent with the protection of the public, the gravity of the offense, the
impact on the victim, and the rehabilitative needs of [Glover].” Id.
Glover’s claim challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. See Commonwealth v.
Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016). Here, Glover entered into
a negotiated plea agreement, which included a sentencing agreement, and,
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Court’s holding in Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.
Super. 2005). On April 3, 2020, this Court issued an Order requiring Attorney
Fitzgerald to file the letter and proof of service that Glover had received the
Millisock letter. On April 8, 2020, Attorney Fitzgerald filed, with this Court,
proof of service to Glover, dated April 8, 2020, and the Millisock letter signed
and dated on April 1, 2020.
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therefore, he cannot challenge the discretionary aspects of his sentence on
appeal. See Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015)
(holding that a challenge to the discretionary aspects of a negotiated sentence
is unreviewable); see also Commonwealth v. Dalberto, 648 A.2d 16, 21
(Pa. Super. 1994) (stating that “in a negotiated plea agreement where a
sentence of specific duration has been made part of a plea bargain, it would
clearly make a sham of the negotiated plea process for courts to allow
defendants to later challenge their sentence….”).3 Accordingly, Glover’s claim
is wholly frivolous.
Finally, our independent review of the record discloses no other
“arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Dempster, 187 A.3d at 272. As such, we grant Attorney
Fitzgerald’s Application to Withdraw, and affirm the judgment of sentence.
Application to Withdraw granted. Judgment of sentence affirmed.
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3 Further, a review of the record reveals that the trial court considered all
relevant factors, and had the benefit of a pre-sentence investigation report
(“PSI”). N.T. (Guilty Plea and Sentence), 10/8/19, at 14-16; see also
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (stating
that where a sentencing court is informed by a PSI, it is presumed that they
are “aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2020
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