J-S22019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JOSUE ALAMEDA, SR.
Appellant No. 1298 WDA 2014
Appeal from the Judgment of Sentence November 18, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001175-2013
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2015
Josue Alameda, Sr., appeals from the judgment of sentence imposed
by the Court of Common Pleas of Erie County following his convictions for
several offenses arising out of a high speed chase after he failed to obey a
stop sign. Alameda’s counsel also seeks to withdraw pursuant to the
dictates of Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), and Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981). Upon review, we grant counsel’s petition to
withdraw and affirm Alameda’s judgment of sentence.
Between midnight and 12:15 a.m. on February 27, 2013, police
officers observed Alameda, who was driving a dark colored Pontiac Grand
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S22019-15
Am, run a stop sign at the corner of 24th and Ash Streets in Erie. He led the
officers on a high-speed chase at 80 miles per hour through an area posted
at 25 miles per hour. At one point, when the vehicle was estimated to be
traveling at 100 miles per hour, it hit a bump, became airborne and jumped
two lanes of traffic. Eventually, the vehicle hit a snowbank, then hit some
trees and came to stop.
On September 24, 2013, at the conclusion of a two-day trial, a jury
convicted Alameda of fleeing or attempting to elude a police officer 1 and
resisting arrest.2 The court then convicted him of reckless driving 3 and
failure to obey a stop sign.4
On November 18, 2013, the trial court sentenced Alameda to 9 to 23
months’ incarceration followed by 24 months of probation along with fines
and costs. He did not file a post-sentence motion or direct appeal.
Alameda filed a petition pursuant to the Post-Conviction Relief Act,5
which the court granted on July 29, 2014, reinstating Alameda’s right to file
a post-sentence motion and direct appeal. He filed a post-sentence motion
1 75 Pa.C.S. § 3733(a). 2 18 Pa.C.S. § 5104. 3 75 Pa.C.S. § 3736(a). 4 75 Pa.C.S. § 3323(b). 5 42 Pa.C.S. §§ 9541-9546.
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on August 1, 2014, which the court denied on August 4, 2014. This timely
appeal followed, and on August 25, 2014, Alameda’s counsel filed a
statement of intent to file an Anders/McClendon brief in lieu of a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
On January 28, 2015, Alameda’s counsel filed an Anders brief. “When
faced with a purported Anders brief, this Court may not review the merits of
the underlying issues without first passing on the request to withdraw.”
Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super. 2005).
Furthermore, counsel must comply with certain mandates when seeking to
withdraw pursuant to Anders, Santiago, and McClendon. These mandates
are not overly burdensome and have been summarized as follows:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf).
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations
omitted).
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Moreover, the Anders brief that accompanies counsel’s petition to
withdraw 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 case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Here, counsel has filed a petition averring that, after a thorough
review of the record, she finds the appeal to be wholly frivolous, and states
her reasons for so concluding. Santiago, supra. Counsel provided a copy
of the petition and Anders brief to Alameda, advised him of the right to
retain new counsel, or proceed pro se, and raise any additional points he
deems worthy of this Court’s attention. Accordingly, we find counsel has
met the requirements of Anders, McClendon and Santiago.
Once counsel has satisfied the above requirements, this Court
conducts its own review of the proceedings and renders an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
In her Anders brief, the sole issue of arguable merit raised by counsel
is whether the sentence is manifestly excessive, clearly unreasonable, and
not individualized as required by law. Anders Brief, at 1.
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Alameda’s allegation that his sentence was excessive is a challenge to
the discretionary aspect of his sentence, which is not appealable as of right.
Rather, an appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by satisfying a four-part test.
Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).
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).
Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006).
Here, Alameda has preserved his claim by filing a post-sentence
motion and including it in his statement of intent to file an Anders brief. His
notice of appeal was timely filed. Finally, Alameda’s counsel has included in
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J-S22019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JOSUE ALAMEDA, SR.
Appellant No. 1298 WDA 2014
Appeal from the Judgment of Sentence November 18, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001175-2013
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2015
Josue Alameda, Sr., appeals from the judgment of sentence imposed
by the Court of Common Pleas of Erie County following his convictions for
several offenses arising out of a high speed chase after he failed to obey a
stop sign. Alameda’s counsel also seeks to withdraw pursuant to the
dictates of Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), and Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981). Upon review, we grant counsel’s petition to
withdraw and affirm Alameda’s judgment of sentence.
Between midnight and 12:15 a.m. on February 27, 2013, police
officers observed Alameda, who was driving a dark colored Pontiac Grand
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S22019-15
Am, run a stop sign at the corner of 24th and Ash Streets in Erie. He led the
officers on a high-speed chase at 80 miles per hour through an area posted
at 25 miles per hour. At one point, when the vehicle was estimated to be
traveling at 100 miles per hour, it hit a bump, became airborne and jumped
two lanes of traffic. Eventually, the vehicle hit a snowbank, then hit some
trees and came to stop.
On September 24, 2013, at the conclusion of a two-day trial, a jury
convicted Alameda of fleeing or attempting to elude a police officer 1 and
resisting arrest.2 The court then convicted him of reckless driving 3 and
failure to obey a stop sign.4
On November 18, 2013, the trial court sentenced Alameda to 9 to 23
months’ incarceration followed by 24 months of probation along with fines
and costs. He did not file a post-sentence motion or direct appeal.
Alameda filed a petition pursuant to the Post-Conviction Relief Act,5
which the court granted on July 29, 2014, reinstating Alameda’s right to file
a post-sentence motion and direct appeal. He filed a post-sentence motion
1 75 Pa.C.S. § 3733(a). 2 18 Pa.C.S. § 5104. 3 75 Pa.C.S. § 3736(a). 4 75 Pa.C.S. § 3323(b). 5 42 Pa.C.S. §§ 9541-9546.
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on August 1, 2014, which the court denied on August 4, 2014. This timely
appeal followed, and on August 25, 2014, Alameda’s counsel filed a
statement of intent to file an Anders/McClendon brief in lieu of a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
On January 28, 2015, Alameda’s counsel filed an Anders brief. “When
faced with a purported Anders brief, this Court may not review the merits of
the underlying issues without first passing on the request to withdraw.”
Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super. 2005).
Furthermore, counsel must comply with certain mandates when seeking to
withdraw pursuant to Anders, Santiago, and McClendon. These mandates
are not overly burdensome and have been summarized as follows:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf).
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations
omitted).
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Moreover, the Anders brief that accompanies counsel’s petition to
withdraw 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 case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Here, counsel has filed a petition averring that, after a thorough
review of the record, she finds the appeal to be wholly frivolous, and states
her reasons for so concluding. Santiago, supra. Counsel provided a copy
of the petition and Anders brief to Alameda, advised him of the right to
retain new counsel, or proceed pro se, and raise any additional points he
deems worthy of this Court’s attention. Accordingly, we find counsel has
met the requirements of Anders, McClendon and Santiago.
Once counsel has satisfied the above requirements, this Court
conducts its own review of the proceedings and renders an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
In her Anders brief, the sole issue of arguable merit raised by counsel
is whether the sentence is manifestly excessive, clearly unreasonable, and
not individualized as required by law. Anders Brief, at 1.
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Alameda’s allegation that his sentence was excessive is a challenge to
the discretionary aspect of his sentence, which is not appealable as of right.
Rather, an appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by satisfying a four-part test.
Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).
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).
Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006).
Here, Alameda has preserved his claim by filing a post-sentence
motion and including it in his statement of intent to file an Anders brief. His
notice of appeal was timely filed. Finally, Alameda’s counsel has included in
her Anders brief a statement pursuant to Pa.R.A.P. 2119(f), claiming that
the trial court imposed an excessive sentence.
Judicial review of the discretionary aspects of a sentence is granted
only upon a showing that there is a substantial question that the sentence
was inappropriate and contrary to the fundamental norms underlying the
Sentencing Code. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.
1987). A substantial question exists “only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
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inconsistent with a specific provision in the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en
banc).
Alameda argues that he raises a substantial question because although
he was sentenced within the guidelines, “the case involves circumstances
where the application of the guidelines would be clearly unreasonable.” 42
Pa.C.S. § 9781(c)(2). The reasons set forth by Alameda in support of this
claim are as follows:
[H]e should have received a lighter sentence because he took responsibility for his actions and expressed remorse for his actions and that he apologized at the time of sentencing. Further, his actions were the result of his drinking alcohol.
Anders Brief, at 4-5.
We are unpersuaded that these reasons support a conclusion that
Alameda’s sentence was either excessive or unreasonable.
When imposing sentence, the court noted:
I have considered a number of things here, the pre-sentence investigative report in its entirety, and I’ll make it a part of the record. I’ve also considered the Pennsylvania Sentencing Code and all its factors, the guidelines, the various statements made here to me today, and also [Alameda’s] sister’s letter which I have read and I’m returning to counsel.
N.T. Sentencing Hearing, 11/18/13, at 7.
Where a pre-sentence report exists, we presume that the sentencing
judge was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
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factors. Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa. 2007).
Accordingly, we reject Alameda’s argument that his sentence was not
individualized.
Alameda has failed to raise a substantial question, and therefore is not
entitled to review of the discretionary aspect of his sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/4/2015
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