Com. v. Bartley, A.

• Court: Superior Court of Pennsylvania
• Decided: May 11, 2018
• Docket: 132 EDA 2017
• Status: Unpublished

Opinion

J-S07007-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

AMBER NICHELLE BARTLEY,

Appellant No. 132 EDA 2017

Appeal from the Judgment of Sentence Entered November 29, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005460-2016

BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 11, 2018

Appellant, Amber Nichelle Bartley, appeals from the aggregate

judgment of sentence of time served to 23 months’ incarceration, followed by

1 year probation, imposed after she pled guilty to fleeing or attempting to

elude a police officer, receiving stolen property, and possession of a controlled

substance. On appeal, Appellant seeks to challenge the discretionary aspects

of her sentence. Additionally, Appellant’s counsel, Patrick J. Connors, Esq.,

seeks to withdraw his representation of Appellant pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of

sentence and grant counsel’s petition to withdraw. J-S07007-18

The facts underlying Appellant’s convictions are not pertinent to our

disposition of her appeal. The trial court briefly summarized the procedural

history of her case, as follows:

On November 29, 2016, [Appellant] … entered a negotiated guilty plea to Count 1, Fleeing or Attempting to Elude Officer; Count 2, Receiving Stolen Property; and Count 5, Possession of a Controlled Substance. [] Appellant was sentenced on November 29, 2016[,] … to time served (06/09/16 to 07/27/16) to 23 months[’ incarceration,] followed by one year consecutive probation on Count 1; 3 years[’] probation concurrent to Count 1 on Count 2; and time served (06/09/16 to 07/27/16) to 12 months[’ imprisonment] concurrent to Counts 1 and 2 with a fine of $500.00 on Count [3]. Appellant, through her counsel, [Attorney] Connors, timely filed a Notice of Appeal to the Superior Court.

The [c]ourt directed Appellant to file a [Pa.R.A.P. 1925(b)] Statement of Matters Complained of on Appeal and in response[,] on January 19, 2017, counsel for Appellant filed a statement indicating [counsel’s] intent to file an Anders brief with the Superior Court pursuant to Pa.R.A.P. 1925(c)(4).

Trial Court Opinion, 10/13/17, at 1-2 (footnote and emphasis omitted).

Because counsel filed a Rule 1925(c)(4) statement, the trial court did not

address the merits of any claims in its Rule 1925(a) opinion.

On December 27, 2017, Attorney Connors filed with this Court a petition

to withdraw his representation of Appellant, as well an Anders brief. Therein,

counsel states that the only issue that could arguably support Appellant’s

appeal is a claim that her “aggregate sentence[, which] will keep [Appellant]

under parole supervision for 3 years[,] is harsh and excessive under the

circumstances” of her case. Anders Brief at 8. However, for reasons

discussed infra, counsel concludes that Appellant’s issue is frivolous, and he

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also states that Appellant has no other, non-frivolous issues she could pursue

herein.

It is well-established that,

this Court must first pass upon counsel’s petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The 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 case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. 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. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct an independent review of the

record to discern if there are any additional, non-frivolous issues overlooked

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by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted).

In this case, Attorney Connors’ Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history, he refers to portions of the record that could arguably

support Appellant’s claim, and he sets forth his conclusion that Appellant’s

appeal is frivolous. He also explains his reasons for reaching that

determination, and supports his rationale with citations to the record and

pertinent legal authority. Attorney Connors also states in his petition to

withdraw that he has supplied Appellant with a copy of his Anders brief.

Additionally, he attached to his petition to withdraw a letter directed to

Appellant in which he informs Appellant of the rights enumerated in Nischan.

Accordingly, counsel has complied with the technical requirements for

withdrawal. We will now independently review the record to determine if

Appellant’s issue is frivolous, and to ascertain if there are any other, non-

frivolous issues she could pursue on appeal.

According to Attorney Connors, the only issue that could arguably

support Appellant’s appeal is a claim that her sentence is excessive because

she had no prior convictions, she had “13 years of formal education at the

time of the guilty plea hearing[,]” and she “took full responsibility for the

crime” by pleading guilty. Anders Brief at 8. Counsel concludes, however,

that this issue “is frivolous since the sentence was imposed in accordance with

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a negotiated guilty plea. This precludes questions regarding its discretionary

aspects.” Id. (citing Commonwealth v. O’Malley, 957 A.2d 1265 (Pa.

Super. 2008)). In O’Malley, this Court declared that, “[o]ne who pleads

guilty and receives a negotiated sentence may not then seek discretionary

review of that sentence.” O’Malley, 957 A.2d at 1267 (citing

Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994)).

Accordingly, we agree with Attorney Connors that Appellant’s sentencing claim

is frivolous.

Additionally, our independent review of the record reveals no other,

non-frivolous issues that Appellant could present herein. Therefore, we affirm

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

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/11/18

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