Com. v. Cianci, A.

• Court: Superior Court of Pennsylvania
• Decided: May 29, 2015
• Docket: 1132 EDA 2014
• Status: Unpublished

Opinion

J. S27015/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ANTHONY CIANCI, : No. 1132 EDA 2014 : Appellant :

Appeal from the Judgment of Sentence, March 13, 2014, in the Court of Common Pleas of Delaware County Criminal Division at No. CP-23-CR-0003800-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ANTHONY CIANCI, : No. 1172 EDA 2014 : Appellant :

Appeal from the Judgment of Sentence, March 13, 2014, in the Court of Common Pleas of Delaware County Criminal Division at No. CP-23-CR-0005205-2010

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 29, 2015

Appellant appeals the judgment of sentence imposed following a

finding that he was in violation of probation for two separate prior sentences

of probation. Finding no merit in the issue raised on appeal, we affirm.

On August 18, 2008, at trial court docket number CP-23-CR-0003800-

2008, appellant pleaded guilty to criminal mischief and was sentenced to a

* Former Justice specially assigned to the Superior Court. J. S27015/15

term of probation. On September 15, 2010, at trial court docket number

CP-23-CR-0005205-2010, appellant pleaded guilty to recklessly endangering

another person and resisting arrest and was sentenced to a term of

probation. On March 13, 2014, following a Gagnon II hearing,1 appellant

was found to be in violation of both sentences of probation by a February 5,

2014 conviction for aggravated assault. Immediately thereafter, the court

imposed an aggregate sentence of 18 to 36 months’ imprisonment. This

timely appeal followed.

On appeal, counsel for appellant, Patrick J. Conners, Esq., has filed a

petition to withdraw and accompanying Anders brief.2 Counsel raises a

single issue, questioning whether appellant’s sentence was excessive. As

counsel has filed a petition to withdraw, we note that “[w]hen 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), citing Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation

omitted).

In order for counsel to withdraw from an appeal pursuant to Anders, certain requirements must be met, and counsel must:

1 Gagnon v. Scarpelli, 411 U.S. 778 (1973). 2 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).

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(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.

Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Upon review, we find that Attorney Conners has complied with all of

the above requirements. In addition, Attorney Conners served appellant a

copy of the Anders brief, and advised him of his right to proceed pro se or

hire a private attorney to raise any additional points he deemed worthy of

this court’s review. Appellant has not responded to counsel’s motion to

withdraw. As we find the requirements of Anders and Santiago are met,

we will proceed to the issue on appeal.

With respect to discretionary aspect of sentencing challenges, the Pennsylvania Rules of Appellate Procedure require that:

An 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

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sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f) (emphasis added). Appellant has failed to include the requisite Rule 2119(f) statement. A failure to include the Rule 2119(f) statement does not automatically waive an appellant’s argument; however, we are precluded from reaching the merits of the claim when the Commonwealth lodges an objection to the omission of the statement. Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super. 2003).

Commonwealth v. Bruce, 916 A.2d 657, 666 (Pa.Super. 2007), appeal

denied, 932 A.2d 74 (Pa. 2007).

Appellant’s brief on appeal does not include a Rule 2119(f) statement;

however, as the Commonwealth has failed to object, we do not find this

issue to be waived. Additionally, it does not appear that appellant filed any

post-sentence motion challenging his sentence. However, as this is an

Anders matter, in the interest of judicial economy we will review the

sentencing claim.

Appellant’s argument is as follows:

Counsel believes an issue of arguable merit exists as to whether that [sentence] is excessive under the circumstances.

But in light of [appellant’s] agreement to not only the violation but the recommendations of the parole/probation officer [as to the sentence], this issue is clearly frivolous.

Appellant’s brief at 4.

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Appellant effectively “pleaded guilty” and accepted the 18 to 36-month

sentence recommended by the probation officer. A challenge to the

discretionary aspects of sentence may be mounted following a guilty plea, so

long as the plea did not include a negotiated sentence. Commonwealth v.

Boyd, 835 A.2d 812, 816 (Pa.Super. 2003). Here, however, appellant did

not oppose the proposed sentence:

[DEFENSE COUNSEL]: Your Honor, we would ask that – well, we don’t oppose the 18 to 36. We’d ask that it run concurrent, Your Honor. My client is currently – he has about five and a half years to do before his minimal time on the case he’s in now, Your Honor. And probably won’t get out any time around that time, probably after that. While he’s in prison, Your Honor, he is attempting to get his GED. He is on the list to try to get work there. He does have a four-year-old daughter, who lives with her mother right now. He is a resident – when he’s here, a resident of Upper Darby where his family is at right now. We’d ask the Court to consider that, Your Honor, in evaluating this.

THE COURT: All right. Would your client like to be heard?

[DEFENSE COUNSEL]: Would you like to be heard, Mr. Cianci?

THE DEFENDANT: No, I believe you covered it.

Notes of testimony, 3/13/14 at 5-6.

While appellant requested that the 18 to 36-month sentence be

imposed concurrently to his present sentence, his acceptance of the

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sentence clearly was not contingent upon concurrent sentencing.3 Thus, we

find that appellant effectively pleaded guilty and accepted the proposed

sentence of 18 to 36 months’ imprisonment. Under these circumstances, he

cannot now be heard to complain that the sentence is excessive. Upon our

independent review, we find that the issue raised on appeal is frivolous, and

that there are no other issues of arguable merit.

Judgment of sentence affirmed. Counsel permitted to withdraw.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/29/2015

3 The 18 to 36-month sentence was imposed consecutively to appellant’s present sentence. (Notes of testimony, 3/13/14 at 7.)

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