Com. v. Guerrier, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALEB C. GUERRIER :
:
Appellant : No. 761 MDA 2021
Appeal from the Judgment of Sentence Entered April 26, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000909-2016
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED: APRIL 12, 2022
Appellant Caleb C. Guerrier appeals from the judgment of sentence
imposed after he pled nolo contendere to robbery. Appellant’s counsel
(Counsel) has filed a petition to withdraw and an Anders/Santiago1 brief.
For the reasons stated herein, we deny Counsel’s petition to withdraw and
direct Counsel to submit an amended Anders/Santiago brief or an advocate’s
brief.
Briefly, Appellant was charged with robbery and related offenses2
following a November 2015 incident at a hotel in Wilkes-Barre. See Criminal
Compl., 12/7/15, at 6-7. On April 6, 2021, Appellant entered a nolo
contendere plea to robbery. Plea Agreement, 4/6/21. In exchange, the
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
2 18 Pa. C.S. § 3701(a)(1)(iv).
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Commonwealth agreed to withdraw the remaining charges and recommend a
sentence concurrent to Appellant’s existing federal sentence. Id. The trial
court subsequently sentenced Appellant to fifteen to thirty months’
incarceration, to run concurrent to any other sentences Appellant was already
serving. N.T. Sentencing Hearing, 4/26/21, at 7-8.
Appellant filed a timely post-sentence motion requesting reconsideration
and modification of his sentence, which the trial court denied. Appellant filed
a timely appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial
court issued a Rule 1925(a) opinion addressing Appellant’s claims.
In the Anders/Santiago brief, Counsel identifies the following issue:
Whether the trial court abused its discretion in failing to consider
the Appellant’s rehabilitative needs; length of incarceration; need
for medical treatment; and his remorse.
Anders/Santiago Brief at 1.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
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arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
“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.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “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) (citation and footnote omitted); accord
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc).
Here, Counsel has complied with the procedural requirements for
seeking withdrawal by filing a petition to withdraw, sending Appellant a letter
explaining his appellate rights, and supplying Appellant with a copy of the
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Anders/Santiago brief.3 See Goodwin, 928 A.2d at 290. Moreover,
Counsel’s Anders/Santiago brief complies with the requirements of
Santiago. Counsel includes a summary of the relevant factual and procedural
history, refers to the portions of the record that could arguably support
Appellant’s claim, and sets forth the conclusion that the appeal is frivolous.
See Santiago, 978 A.2d at 361. Accordingly, we conclude that Counsel has
met the technical requirements of Anders and Santiago, and we will proceed
to address the issues raised in Counsel’s Anders/Santiago brief.
In the Anders/Santiago brief, Counsel identifies Appellant’s challenge
to the discretionary aspects of his sentence. Anders/Santiago Brief at 6.
Specifically, Appellant claims that the sentencing court “abused its discretion
in failing to consider his rehabilitative needs, the length of incarceration he
had undergone since his arrest[,] his need for medical treatment, and his
remorse.” Id. at 7.
Initially, we note that “[i]n terms of its effect upon a case, a plea of nolo
contendere is treated the same as a guilty plea.” Commonwealth v. Lewis,
791 A.2d 1227, 1230 (Pa. Super. 2002) (citations omitted). “Generally, a plea
of guilty amounts to a waiver of all defects and defenses except those
concerning the jurisdiction of the court, the legality of the sentence, and the
validity of the guilty plea.” Commonwealth v. Morrison, 173 A.3d 286, 290
(Pa. Super. 2017) (citation omitted). It is well settled that a defendant “who
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3 Appellant did not file a response to Counsel’s petition to withdraw.
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pleads guilty and receives a negotiated sentence may not then seek
discretionary review of that sentence.” Commonwealth v. O’Malley, 957
A.2d 1265, 1267 (Pa. Super. 2008) (citation omitted). “However, when the
plea agreement is open, containing no bargain for a specific or stated term of
sentence, the defendant will not be precluded from appealing the discretionary
aspects of his sentence.” Commonwealth v. Guth, 735 A.2d 709, 711 n.3
(Pa. Super. 1999) (citation omitted).
Here, Appellant’s nolo contendere plea did not contain any bargain for
a specific sentence, only an agreement that the Commonwealth would
recommend that trial court should impose a sentence concurrent to
Appellant’s federal sentence. See Plea Agreement, 4/6/21. Therefore,
Appellant is not precluded from challenging the discretionary aspects of his
sentence on appeal. See Guth, 735 A.2d at 711 n.3.
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
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. § 9781(b).
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Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered).
Here, Appellant filed a timely notice of appeal and preserved his
sentencing issue in both a post-sentence motion and Pa.R.A.P. 1925(b)
statement. Further, Counsel has included a Pa.R.A.P. 2119(f) statement in
the Anders/Santiago brief. See Proctor, 156 A.3d at 273. Therefore, we
must determine whether Appellant’s claim raises a substantial question for
review.
“A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Id.
(citation omitted).
This Court has held that a claim that a trial court “failed to give adequate
weight to mitigating factors does not present a substantial question
appropriate for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa. Super. 2013); see also Commonwealth v. Donning, 990 A.2d 788,
794 (Pa Super. 2010). However, this Court has explained that “a claim that
the trial court failed to consider relevant sentencing criteria, including . . . the
rehabilitative needs of [the a]ppellant, as 42 Pa.C.S. § 9721(b) requires,
presents a substantial question for our review.” Commonwealth v.
Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020) (citation omitted and
formatting altered).
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Here, Counsel’s Rule 2119(f) statement identifies Appellant’s claim that
the “trial court abused its discretion and violated the sentencing code in failing
to consider the Appellant’s rehabilitative needs; length of incarceration;
Appellant’s need for medical treatment; and Appellant’s remorse.”
Anders/Santiago Brief at 3. However, Counsel ultimately concludes that
Appellant’s claim is frivolous because it does not present a substantial question
for our review. Id. at 7-8 (citing Disalvo, 70 A.3d 900; Donning, 990 A.2d
788).
Instantly, following our review of the record, we conclude that
Appellant’s sentencing claim raises a substantial question for our review
because this Court has held that a claim alleging the trial court’s failure to
consider the rehabilitative needs of the defendant, which is one of the Section
9721(b) sentencing factors, raises a substantial question. Compare
Derrickson, 242 A.3d at 680 with Disalvo, 70 A.3d at 903. However,
because Counsel did not address the underlying merits of Appellant’s
sentencing claim, we are unable to determine whether Appellant’s appeal is
wholly frivolous. Therefore, we must deny Counsel’s petition to withdraw and
remand this case for further proceedings. See Santiago, 978 A.2d at 358
(stating that “only [complete frivolity] supports counsel’s request to withdraw
and a court’s order granting the request” (citation omitted)).
On remand, Counsel shall have thirty days to file a new petition to
withdraw and an amended Anders/Santiago brief addressing the merits of
Appellant’s discretionary sentencing claim, or to file an advocate’s brief on
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Appellant’s behalf. The Commonwealth shall have thirty days thereafter to
file a response.
Petition to withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
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