J-S18036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOAQUIN CASTRO : : Appellant : No. 1471 MDA 2018
Appeal from the Judgment of Sentence Entered July 16, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000245-2017
BEFORE: BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 28, 2019
Appellant, Joaquin Castro, appeals from the judgment of sentence
entered in the Court of Common Pleas of Lackawanna County on July 16,
2018, following his guilty plea to one count of Statutory Sexual Assault, 18
Pa.C.S.A. § 3122.1(a)(2). Additionally, Appellant’s counsel has filed a petition
seeking to withdraw her representation, as well as a brief pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter “Anders Brief”).1
____________________________________________
1 Anders set forth the requirements for counsel to withdraw from representation on direct appeal, and our Supreme Court applied Anders in Santiago.
____________________________________ * Former Justice specially assigned to the Superior Court. J-S18036-19
After a careful review, we grant counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
The trial court aptly set forth the relevant factual and procedural history
herein as follows:
Under docket number 17 CR 245, the Appellant was charged with one (1) count of Involuntary Deviate Sexual Intercourse With a Person Less Than Sixteen Years of Age in violation of 18 Pa. C.S.A. § 3123(a)(7), one (1) count of Statutory Sexual Assault in violation of 18 Pa. C.S.A. § 3122.1(a)(2), one (1) count of Sexual Assault in violation of 18 Pa. C.S.A. § 3124.1, and one (1) count of Incest of a Minor- Complainant 13-18 Years in violation of 18 Pa. § 4202(b)(2). These charges stemmed from a December 2, 2016 interview between the victim and the Children's Advocacy Center. Gowarty, Affidavit of Probable Cause, December 27, 2016, at p. 1. The Appellant forced the victim, who is his fifteen year old sister, to engage in vaginal and anal sex in her bedroom on various occasions. Id. The Appellant eventually admitted to these actions in a written statement. Id. On November 29, 2017, the Appellant entered a negotiated guilty plea under 17 CR 245 t one (1) count of Statutory Sexual Assault in violation of 18 Pa. C.S. § 3122.1(a)(2). Prior to entering the guilty plea, utilizing a certified Spanish interpreter, the Appellant executed a lengthy written, Spanish plea colloquy form in which he indicated awareness of the maximum penalty, the elements of the crime charged, his satisfaction with counsel, the terms of the plea agreement, and knowledge of the potential for deportation. See Written Plea Colloquy, para. 5, 8, 13, 15, 16, and 20. The Appellant's plea terms further acknowledged that the remaining charges would be nolle pressed. Id. at para 13. Specifically, in Paragraph 20 of the written guilty plea colloquy, the Appellant indicated awareness he was not a U.S. citizen and could be subject to deportation. Id at para. 20, 20(a). Concomitantly, this Court conducted an oral inquiry to determine whether the Appellant was entering a knowing, voluntary, and intelligent plea. See N.T. Guilty Plea, November 29, 2017, at p. 3-6. The Appellant demonstrated knowledge of the constitutional rights he forfeited as well as the resultant penalties. Id. The Appellant admitted to the Commonwealth's allegations in that he forced his (fifteen) 15 year old sister to have sexual intercourse on various occasions. Id. at 4-5. After receiving all
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affirmative responses from the Appellant, this [c]ourt accepted the guilty plea as valid. Id. at 5-6. Likewise, the Appellant executed a written Spanish Sexual Offenders Registration and Notification Act colloquy (hereinafter "SORNA"). The Appellant acknowledged that his guilty plea triggered a twenty-five (25) year registration period as well as the specific provisions included within that period. See SORNA Colloquy [2] Thereafter, this [c]ourt deferred sentence until completion of a Presentence Investigation Report (hereinafter “PSI”) and an Assessment by the Pennsylvania Sex Offenders' Assessment Board. Id. at 6. Upon review of the Appellant's PSI and sexual offender assessment, this [c]ourt sentenced the Appellant to twenty-five (25) to sixty (60) months of state confinement with two (2) years of state probation on July 16, 2018. Subsequently, on July 25, ____________________________________________
2 SORNA 42 Pa.C.S.A. §§ 9799.10-9799.41, was enacted on December 20, 2011, and became effective on December 20, 2012. Effective February 21, 2018, the legislature enacted Act 10, which added a new subchapter to SORNA, “Continued Registration of Sexual Offenders.” 42 Pa.C.S.A. §§ 9799.51-9799.75. The stated purpose of Act 10 was, inter alia, to address Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). Act 29 of 2018 reenacted Act 10, effective June 12, 2018. In Muniz, our Supreme Court held that the retroactive application of SORNA’s registration provisions to defendants whose crimes occurred prior to SORNA’s effective date (December 20, 2012) violated the ex post facto clause of the Pennsylvania Constitution. In the case sub judice, Appellant committed his crimes in December of 2016, entered his plea in November of 2017, and was sentenced after the 2018 amendments to SORNA became effective; thus, there was no retroactive application of SORNA. See Commonwealth v. Luciani, 2018 WL 6729854 (Pa.Super. filed Dec. 24, 2018). We conclude that Appellant properly was sentenced in accordance with the applicable SORNA tier-based registration period. See Commonwealth v. Prieto, 2019 WL 1234379 at *4 (Pa.Super. filed Mar. 18, 2019) quoting Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa.Super. 2018) (directing “trial courts to apply only the applicable tier-based registration period, as those periods apply based on the conviction itself, and not due to any additional fact not found, under SORNA's procedures, by the fact-finder”).
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2018, the Appellant filed a Motion for Reconsideration of Sentence, which this [c]ourt denied on August 3, 2018. Accordingly, the Appellant filed a Notice of Appeal to the Pennsylvania Superior Court on August 30, 2018. However, the Pennsylvania Superior Court directed the Appellant to show cause as to why his appeal should not be quashed as untimely. The Appellant filed a response on October 26, 2018, yet failed to present any legal argument justifying appellate jurisdiction, therefore, the appeal was quashed. Afterwards, the Appellant filed an application for reinstatement of the instant appeal. The Pennsylvania Superior Court vacated the November 14, 2018 order which quashed the appeal as untimely, and reinstated the above captioned appeal.
Trial Court Opinion, filed 1/11/19, at 1-3.
On September 5, 2018, the trial court entered its Order pursuant to
Pa.R.A.P. 1925 directing Appellant to file a concise statement of matters
complained of on appeal. On September 25, 2018, Appellant filed his “Motion
for Extension of Time to File Concise Statement of Matters Complained of on
Appeal,” and the trial court granted the same on October 5, 2018. On October
23, 2018, Appellant filed his “Concise Statement,” and the trial court filed its
Opinion pursuant to Pa.R.A.P. 1925(a) on January 11, 2019.
In the Anders Brief, counsel presents the following Statement of
Questions Involved:
A. Whether the sentencing court erred when it believed that an aggravated sentence was necessary due to not only the age difference between Appellant and the victim, but also to the conduct to which he pled guilty, which factors are already elements of the statutory sexual assault offense.
B. Whether the sentencing court erred when it imposed a probationary sentence in addition to a sentencing of incarceration
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which, due to Appellant’s ICE[3] detainer he would potentially have to serve the maximum of his sentence before he is placed into immigration custody, and which amounts to a harsh and unreasonable sentence amounting to cruel and unusual punishment.
Anders Brief at 4 (unnecessary capitalization omitted).
As this Court recently reiterated, prior to addressing any issue raised on
appeal, first must resolve counsel’s petition to withdraw. Commonwealth v.
Prieto, 2019 WL 1234379 at *2 (Pa.Super. filed Mar. 18, 2019) quoting
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en
banc). We further stated:
There are procedural and briefing requirements imposed upon an attorney who seeks to withdraw on appeal pursuant to which counsel must: 1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc) (citation omitted). In addition, our Supreme Court in Santiago stated that an Anders 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 ____________________________________________
3“ICE” refers to the United States Department of Immigration and Customs Enforcement.
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law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide the appellant with a copy of the Anders brief, together with a letter that advises the appellant of his or her 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) (citation omitted). Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007).
Prieto, at *2-3.
Herein, counsel contemporaneously filed her petition to withdraw as
counsel and Anders Brief. In her petition, counsel states that after a thorough
and conscientious examination of the record, she has determined that an
appeal herein lacks merit. See Application to Withdraw as Counsel, filed
2/28/19, at ¶7. Additionally, in accordance with Nischan, supra, counsel
has mailed Appellant a copy of the Anders Brief and a letter informing him
that: (1) she believes any appeal herein would be frivolous; (2) Appellant has
the right to retain new counsel; (3) Appellant may proceed further with his
case pro se; and (4) Appellant may raise any points that he deems worthy of
the this Court’s attention. Counsel attached her conforming correspondence
to her petition to withdraw. See Commonwealth v. Millisock, 873 A.2d 748
(Pa.Super. 2005). Counsel also has complied with the requirements set forth
in Santiago, supra, and both the Anders Brief and the petition to withdraw
as counsel contain proof of service on Appellant.
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In the Anders Brief, counsel provides a summary of the facts and
procedural history of the case, refers to evidence of record that might arguably
support the issues raised on appeal, provides citations to relevant case law,
and states her reasoning and conclusion that the appeal is wholly frivolous.
Accordingly, counsel substantially has complied with all of the technical
requirements of Anders and Santiago. Therefore, we proceed to examine
the issues counsel identified in the Anders Brief and to conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.
2018) (en banc) (quotation omitted). See also Prieto, supra.
“Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving otherwise.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)
(citation omitted). Generally, upon the entry of a guilty plea, a defendant
waives all claims and defenses other than those sounding in the jurisdiction of
the court, the validity of the plea, and the legality of the sentence imposed.
See Commonwealth v. Eisenberg, 626 Pa. 512, 527, 98 A.3d 1268, 1276
(2014) (holding that the proper entry of a guilty plea acts to extinguish
virtually all legal challenges that could have been brought upon the trial or
appeal of the case). The trial court’s jurisdiction never has been in question
herein, and Appellant has not challenged the voluntariness of his plea. In
addition, in his “Statement Pursuant to Pa.R.A.2119(f),” Appellant indicates
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that his claims presented on appeal pertain to the discretionary aspects of the
sentence, not its legality. See Anders Brief at 9.4
Appellant pled guilty to one count of statutory sexual assault; however,
despite the trial court’s referring to the plea as a negotiated one, there were
no specific penalties outlined in the plea agreement. Where there have been
no sentencing restrictions in a plea agreement, an “open plea,” the entry of a
guilty plea will not preclude a challenge to the discretionary aspects of
sentencing. Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa.Super. 1994),
appeal denied, 655 A.2d 983 (Pa. 1995). The record in this case reveals that
Appellant entered into an open guilty plea. Accordingly, because of his open
plea of guilty, Appellant is permitted to challenge the discretionary aspects of
his sentence.
It is well-settled that one’s right to appeal a discretionary aspect of his
or her sentence is not absolute. Commonwealth v. Dunphy, 20 A.3d 1215,
1220 (Pa.Super. 2011). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered as a
petition for allowance of appeal. Commonwealth v. W.H.M., Jr., 932 A.2d
155, 163 (Pa. Super. 2007). As we stated in Commonwealth v. Moury, 992
A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: ____________________________________________
4 For the reasons stated infra, Appellant’s second issue presents a challenge to the legality of his sentence.
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[W]e 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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super.
2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Herein, Appellant satisfied the first three requirements of the four-part
Moury test. He filed a timely appeal to this Court, preserved the issue on
appeal through his post-sentence motion, and included a Pa.R.A.P. 2119(f)
statement in his brief.5 Thus, we next must determine whether Appellant’s
sentencing issues raise a substantial question.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
5 Pa.R.A.P. 2119(f) provides that “[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
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828 (Pa.Super. 2007). We have found that a substantial question exists
“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.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009),
cert. denied, 556 U.S. 1264 (2009).
Upon our review, we find Appellant has a raised a substantial question
with respect to his discretionary aspects of sentence claim. See
Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (concluding
appellant raised substantial question where he argued “that the trial court
improperly based [appellant’s] aggravated range sentence on a factor that
constituted an element of the offense”); Commonwealth v. Robinson, 931
A.2d 15, 27 (Pa.Super. 2007) (a claim that the trial court impermissibly
double-counted factors already incorporated in the sentencing guidelines
raises a substantial question); Commonwealth v. McNabb, 819 A.2d 54,
56–57 (Pa.Super. 2003) (a claim that the trial court relied on impermissible
factors raises a substantial question). Accordingly, we will address the merits
of Appellant’s first claim, and in doing so we are mindful of the following
standard of review:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court
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will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).
Initially, we address Appellant’s argument that the trial court imposed a
sentence in the aggravated range due to factors that also were elements of
the statutory sexual assault offense. Specifically, Appellant asserts the trial
court relied upon the difference in age between his victim and him which was
a material element of the charged offense already taken into consideration
under the Sentencing Guidelines. Anders Brief at 4, 7, 11-13.
Generally, “[i]t is impermissible for a court to consider factors already
included within the sentencing guidelines as the sole reason for increasing or
decreasing a sentence to the aggravated or mitigating range.”
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006)
(emphasis in original). However, “[t]rial courts are permitted to use factors
“already included in the guidelines if, they are used to supplement other
extraneous sentencing information.” Id. When deciding whether a court
improperly has based an aggravated sentence on a factor that is already
considered by the sentencing guidelines, we have stated:
[t]he guidelines were implemented to create greater consistency and rationality in sentencing. The guidelines accomplish the above purposes by providing a norm for comparison, i.e., the standard range of punishment, for the panoply of crimes found in the crimes
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code and by providing a scale of progressively greater punishment as the gravity of the offense increases. ... The provision of a “norm” also strongly implies that deviation from the norm should be correlated with facts about the crime that also deviate from the norm for the offense, or facts relating to the offender's character or criminal history that deviates from the norm and must be regarded as not within the guidelines contemplation. Given this predicate, simply indicating that an offense is a serious, heinous or grave offense misplaces the proper focus. The focus should not be upon the seriousness, heinousness or egregiousness of the offense generally speaking, but, rather, upon how the present case deviates from what might be regarded as a “typical” or “normal” case of the offense under consideration.
Fullin, 892 A.2d at 848 (citation omitted). Moreover, “[a]n aggravated range
sentence [is] justified to the extent that the individual circumstances of [the
defendant’s] case are atypical of the crime for which [the defendant] was
convicted, such that a more severe punishment is appropriate.” Id. The
Fullin Court affirmed an aggravated range sentence because the trial court
justified the sentence by opining on the extreme indifference for the
consequences of the defendant’s actions and on the extreme nature of the
harm to the victim. Id. at 849.
In the matter sub judice, the trial court presided over the guilty plea
hearing and had the benefit of a PSI report prior to sentencing. “Where a PSI
exists, we presume that the trial court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors. A PSI constitutes the record and speaks for
itself.” Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa.Super. 2016)
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(original brackets and citation omitted). The trial court also was aware of the
sentencing guidelines. See Trial Court Opinion, N.T., 7/16/18, at 5.
Regardless of whether this case is typical or atypical, and even if the
trial court impermissibly considered the age difference between Appellant and
the victim when fashioning its sentence, prior to imposing its aggravated-
range sentence, the court indicated on the record it has considered additional,
permissible reasons for its doing so. The trial court explained it was
sentencing Appellant in the aggravated range based upon his lack of
acceptance of responsibility for his actions as was reflected in the PSI, his
prior commission of two protection from abuse violations, and the fact that
the victim was his sister. Id. at 4-5. In addition, as the trial court further
explained in its Rule 1925(a) Opinion:
[T]his [c]ourt did meaningfully consider the section 9721(b) factors, as well as all mitigating factors, and did offer specific reasons for an aggravated sentence. Specifically, this [c]ourt referenced, the Appellant’s lack of acceptance during the pre- sentence investigation as well as the age difference between the Appellant and the victim, including the familial half-blood relationship and position of trust. . . . Prior to sentencing, this [c]ourt thoroughly reviewed the pre-sentence investigation report (PSI) and became aware of the Appellant’s relevant personal background, including his birthplace in El Salvador and relocation to Pennsylvania in 2005. Also, this [c]ourt considered the particular circumstances of the Appellant’s criminal history specifically that the Appellant committed two prior protection from abuse violations. N.T. Sentencing July 16, 2018, at p. 4-5. This [c]ourt also acknowledged that initially the Appellant denied the victim’s allegations, yet later showed remorse at sentence. Id. at 2-5. . . . To suggest that this [c]ourt was presented with the pre- sentence investigation outlining all mitigating and aggravating factors as well as counsel’s statements regarding deportation and
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ignored this sentencing information is disingenuous and baseless. After review of these factual matters, this [c]ourt concluded that it needed to protect society from the Appellant and imposed an individualized sentence adequately accounting for the Appellant’s history. The sentence imposed was reasonable and consistent with the protection of the public, gravity of the offense, as well as the Appellant’s rehabilitative needs. This [c]ourt observed that the Appellant did not appreciate the seriousness of his offenses nor did the Appellant assure this [c]ourt that future inappropriate behavior would cease. The Appellant’s offenses involved multiple sexual acts including vaginal and anal intercourse with his half- sister. All of the above-cited factors highlights the Appellant’s individual offense pattern and criminality.
Trial Court Opinion, filed 1/11/19, at 7-9. (emphasis in original; case citations
and footnote omitted).
Given the trial court’s use of other permissible factors, it did not abuse
its discretion in considering the age difference between Appellant and his sister
when fashioning his sentence. See Commonwealth v. P.L.S., 894 A.2d 120,
133 (Pa.Super. 2006) (finding that even if the trial court considered an
inappropriate factor at sentencing, “the court offered significant other support
for sentencing in excess of the guidelines in this case”), appeal denied, 906
A.2d 542 (Pa. 2006).
In his second issue, Appellant contends the trial court’s imposition of a
probationary tail in addition to his prison sentence constitutes cruel and
unusual punishment in violation of the federal and Pennsylvania constitutions
because he will likely have to serve the maximum of his sentence before he is
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placed into immigration custody due to his ICE detainer.6 This Court has held
that “an appellant who challenges the constitutionality of his sentence of
imprisonment on a claim that it violates his right to be free from cruel and
unusual punishment raises a legality of sentencing claim since he is
challenging the trial court's authority in imposing the sentence.”
Commonwealth v. Yasipour, 957 A.2d 734, 740 (Pa.Super. 2008) (citation
omitted), appeal denied, 980 A.2d 111(Pa. 2009). This Court has explained
that a punishment is cruel and unusual if it is “wholly and irrationally
disproportionate to the crime,” or, in other words, “so greatly disproportionate
to an offense as to offend evolving standards of decency or a balanced sense
of justice.” Commonwealth v. Ehrsam, 512 A.2d 1199, 1210 (Pa.Super.
1986), appeal denied, 527 A.2d 535 (Pa. 1987), cert. denied, 493 U.S. 932,
(1989).
We hold the mere fact that a defendant has a detainer from ICE does
not usurp the discretion of the trial court on sentencing issues.
6Both the Eighth Amendment of the United States Constitution and Article 1, Section 13 of the Pennsylvania Constitution forbid the imposition of “cruel and unusual punishments.” U.S. Const., amend. VIII; Pa. Const., Art. 1, Sec. 13. See Commonwealth v. Spells, 612 A.2d 458, 461 (Pa.Super. 1992) (the guarantee against cruel punishment in the state and federal constitutions is coextensive), appeal dismissed as improvidently granted, 537 Pa. 350,643 A.2d 1078 (Pa. 1994).
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In pleading guilty to a single count of Statutory Sexual Assault,
Appellant admitted that on December 2, 2016, he had engaged in sexual
intercourse with his fifteen year old sister at which time he was between eight
and eleven years older than the child. N.T. Guilty Plea, 11/29/17, at 4-5.
That crime constitutes a felony of the second degree, and Appellant was
informed it carries a maximum sentence of ten years in prison. See 18
Pa.C.S.A. §§ 3122(a), 1103(2); N.T. Guilty Plea, 11/29/17, at 5. Appellant’s
actual sentence of twenty-five (25) months to sixty (60) months in prison to
be followed by two (2) years of probation falls well below that maximum. As
such, we find the trial court’s imposition of the sentence is not grossly
disproportionate to his crime and, therefore, does not amount to cruel and
unusual punishment.
Accordingly, we agree with counsel that the sentencing claims presented
in the Anders brief are wholly frivolous. In light of the foregoing, and after
conducting a full examination of all the proceedings, we discern no non-
frivolous issues to be raised on appeal. Yorgey, supra, 188 A.3d at 1195.
Therefore, we grant counsel's petition to withdraw and affirm the 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: 5/28/2019
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