Com. v. Caro, J.

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2016
• Docket: 80 MDA 2016
• Status: Unpublished

Opinion

J-S47041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOHN CARO

Appellant No. 80 MDA 2016

Appeal from the Judgment of Sentence March 16, 2015 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000682-2014

BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2016

John Caro appeals from the judgment of sentence, entered in the

Court of Common Pleas of Lackawanna County, after he pled guilty to

attempted criminal homicide.1 Caro’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 Caro’s judgment of

sentence.

On December 31, 2006, Caro pulled his vehicle next to the victim’s

vehicle while driving on Route 81 and shot the victim in the head. Based ____________________________________________

1 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 2501. J-S47041-16

upon these actions, Caro was initially charged with attempted criminal

homicide and related crimes including aggravated assault,2 recklessly

endangering another person (REAP),3 and carrying a firearm without a

license.4 Caro fled to Colombia after the above incident and was not

apprehended until 2014. In exchange for Caro’s guilty plea to attempted

homicide on December 10, 2014, Caro’s remaining charges were nolle

prossed.

Caro was sentenced on March 16, 2015, to a term of 13 to 30 years’

incarceration. On September 24, 2015, Caro filed a pro se petition pursuant

to the Post Conviction Relief Act (PCRA),5 seeking reinstatement of his direct

appeal rights nunc pro tunc. Caro’s PCRA petition was granted on December

8, 2015, and he was appointed counsel, who filed a nunc pro tunc notice of

appeal of the judgment of sentence on January 7, 2016. On January 26,

2016, Caro filed a timely court-ordered concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal Caro

asserts that his sentence is excessive.

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2 18 Pa.C.S. § 2702. 3 18 Pa.C.S. § 2705. 4 18 Pa.C.S. 6106. 5 42 Pa.C.S. §§ 9541-9546.

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Counsel has filed a petition to withdraw pursuant to Anders,

McClendon, and Santiago. “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). Based upon Anders and McClendon, counsel

seeking to withdraw must: 1) petition the court for leave to withdraw,

certifying that after a thorough review of the record, counsel has concluded

the issues to be raised are wholly frivolous; 2) file a brief referring to

anything in the record that might arguably support an appeal; and 3) furnish

a copy of the brief to the appellant and advise him of his right to obtain new

counsel or file a pro se brief raising any additional points that the appellant

deems worthy of review. Commonwealth v. Hernandez, 783 A.2d 784,

786 (Pa. Super. 2001). Additionally, in Santiago, our Supreme Court held

that counsel must state the reasons for concluding the client’s appeal is

frivolous. Santiago, 978 A.2d at 361.

Instantly, counsel’s petition to withdraw states that he has examined

the record and has concluded that the appeal is wholly frivolous. Counsel

has also filed a brief in which he repeats the assertion that there are no non-

frivolous issues to be raised and provides his reasoning for concluding the

appeal is frivolous. Counsel has notified Caro of the request to withdraw and

has provided him with a copy of the brief and a letter explaining his right to

proceed pro se or with privately retained counsel regarding any other issues

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he believes might have merit. Accordingly, we find that counsel has

substantially complied with the procedural requirements for withdrawal.

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).

Caro’s sole contention is that his sentence is excessive, which presents

a challenge to the discretionary aspects of sentencing. An appellant is not

entitled to review of the discretionary aspects of sentencing unless he or she

satisfies a four-part test:

(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.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

Here, Caro filed a timely nunc pro tunc notice of appeal after his direct

appeal rights were reinstated and had preserved this issue in a motion for

reconsideration of sentence after sentencing. Caro’s brief includes a

separate statement of the reasons relied upon in challenging the

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). Thus,

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we turn to whether Caro presents a substantial question that his sentence is

not appropriate under the Sentencing Code.

Caro’s claim is limited to the argument that the sentence he received

is excessive. This assertion neither indicates how the sentence specifically

violates the sentencing scheme in the Sentencing Code nor how it is contrary

to a fundamental norm of the sentencing process. See Caldwell, supra at

768; see also Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.

2012) (“[A] bald assertion that a sentence is excessive does not by itself

raise a substantial question justifying this Court’s review of the merits of the

underlying claim.”). Thus, Caro fails to raise a substantial question.6

Based upon the foregoing and our independent review of the record,

we find Caro’s appeal to be meritless. Therefore, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

6 Had Caro raised a substantial question, he nevertheless would not be entitled to relief because the sentence imposed is in the standard range of the sentencing guidelines and the court reviewed a pre-sentence investigation (PSI) report. “[W]here a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citing Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa. Super. 1995) (combination of PSI and standard range sentence, without more, not excessive or unreasonable)).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/9/2016

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