Com. v. Aptiliasimou, F.

• Court: Superior Court of Pennsylvania
• Decided: February 6, 2017
• Docket: 557 MDA 2016
• Status: Unpublished

Opinion

J-S87030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

FIKRI APTILIASIMOU

Appellant No. 557 MDA 2016

Appeal from the Judgment of Sentence Dated March 21, 2016 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002876-2014

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 06, 2017

Appellant, Fikri Aptiliasimou, appeals from the judgment of sentence of

twenty-seven months’ to six years’ incarceration following a guilty plea to

possession of a controlled substance with intent to deliver (“PWID”).1

Appellant’s counsel has filed a petition to withdraw and an Anders2 brief,

stating that the appeal is wholly frivolous. After careful review, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

On January 5, 2016, Appellant pleaded guilty to PWID. Following a

pre-sentence investigation, the court sentenced Appellant on March 21,

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* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. § 780-113(a)(30). 2 Anders v. California, 386 U.S. 738 (1967). J-S87030-16

2016, and advised him of his post-sentence rights. Appellant did not raise

any issues at the hearing after he was sentenced, and he did not file a post-

sentence motion. Appellant timely appealed and filed a court-ordered

Pa.R.A.P. 1925(b) statement claiming that the court abused its discretion

when sentencing him. Appellant’s counsel filed a petition to withdraw with

this Court.

In the Anders brief, counsel raises a single issue for our review:

Whether the trial court abused its discretion in sentencing the Appellant.

Anders Brief at 1.

“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). An Anders brief shall comply with the requirements set forth by the

Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d

349 (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 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.

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Id. at 361.

Counsel seeking to withdraw on direct appeal must meet the following

obligations to his or her client:

Counsel also must 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 addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation 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 citations omitted).

In this case, counsel provided a copy of the Anders brief to Appellant

and advised Appellant of his right to either retain new counsel or proceed

pro se on appeal, and to raise any issues he wished to bring to this Court’s

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attention.3 Further, counsel’s Anders brief complies with prevailing law in

that counsel has provided a procedural and factual summary of the case with

references to the record. Counsel explained that nothing in the record would

support the appeal because Appellant waived the issue. Finally, counsel

states the reasons for concluding this appeal is frivolous. Anders Brief at 6-

7.

Appellant challenges the discretionary aspects of his sentence, an

issue that is not appealable as of right. See Commonwealth v. Colon, 102

A.3d 1033, 1042 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa.

2015).4 Instead, this Court has set forth an analytical framework under

which we determine whether we may exercise our discretion to hear such an

appeal. Under that framework, we 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 [regarding the sentence’s impropriety under the Sentencing ____________________________________________

3 Appellant did not file an additional pro se or counseled brief with this Court. 4 “Upon entry of a guilty plea, a defendant generally waives all defects and defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and the legality of the sentence imposed. 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, 710 n.3 (Pa. Super.) (citations omitted), appeal denied, 743 A.2d 915 (Pa. 1999).

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Code]. [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Id. at 1042-43 (citation omitted). For purposes of an Anders analysis, a

waived issue is frivolous. Commonwealth v. Kalichak, 943 A.2d 285, 291

(Pa. Super. 2008).

“Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010). In the current case, Appellant failed to file a post-

sentence motion or otherwise preserve the issue at the sentencing hearing.

Because Appellant failed to preserve his issue before the trial court, he failed

to satisfy the second prerequisite to appellate review, see Colon, 102 A.3d

at 1042-43; Moury, 992 A.2d at 170, and thus, his issue is frivolous for

purposes of Anders. Kalichak, 943 A.2d at 291. In addition, we have

reviewed the certified record consistent with Flowers, 113 A.3d at 1250,

and have discovered no additional arguably meritorious issues. Accordingly,

we grant appellate counsel’s petition to withdraw and affirm the trial court’s

judgment of sentence.

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Petition to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/6/2017

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