Com. v. Cole, J.

Opinion

J-S04044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JONATHAN COLE : : Appellant : No. 1214 MDA 2018

Appeal from the Judgment of Sentence Entered July 10, 2018 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001202-2017

BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 01, 2019

Appellant Jonathan Cole appeals from the judgment of sentence entered

in the Court of Common Pleas of Luzerne County after Appellant pled guilty to

Possession of a Firearm Prohibited (18 Pa.C.S.A. § 6105(a)(1)). Appellant’s

counsel has filed a petition seeking to withdraw his 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”). After careful review, we grant Counsel’s petition

to withdraw and affirm the judgment of sentence.

In May 2017, Appellant was charged with Receiving Stolen Property,

Possession of a Firearm Prohibited, and Conspiracy to Commit Theft by

Unlawful Taking. On April 23, 2018, Appellant pled guilty to Possession of a

Firearm Prohibited. On July 10, 2018, the lower court sentenced Appellant to

thirty to sixty months’ incarceration in a State Correctional Facility (SCI).

____________________________________ * Former Justice specially assigned to the Superior Court. J-S04044-19

Appellant filed a timely notice of appeal and complied with the lower court’s

direction to file a Concise Statement of Errors Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b).

As an initial matter, we must evaluate Counsel's petition to withdraw.

“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, 874 A.2d 638, 639 (Pa.Super. 2005)

(citation omitted). To withdraw on appeal, Counsel must satisfy the following

procedural and briefing requirements:

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 defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted).

We further review Counsel’s Anders brief for compliance with the

requirements set forth in Santiago, supra.

[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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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).

In the Anders brief and petition to withdraw, 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 his reasoning and conclusion that

the appeal is wholly frivolous. Counsel also attached a copy of his letter in

which he advised Appellant of his right to proceed pro se or with the assistance

of privately retained counsel.

Accordingly, Counsel has substantially complied with all of the technical

requirements of Anders and Santiago. Therefore, we proceed to examine

the issue Counsel identified in the Anders brief and then 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).

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Appellant’s sole claim is that the trial court abused its discretion in failing

to allow Appellant into the county intermediate punishment program (IPP).

This Court has held that “the grant or denial of a defendant's request for IPP

is largely within the sound discretion of the trial court.” Commonwealth v.

Williams, 941 A.2d 14, 24 (Pa.Super. 2008) (citation omitted).

We note that Appellant did not object at sentencing to the discretionary

aspects of his sentence or in a post-sentence motion. “[I]ssues challenging

the discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing

proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.” Commonwealth v. Conte, ___A.3d___, 2018 PA Super

299 (Nov. 1, 2018) (citing Commonwealth v. Tirado, 870 A.2d 362, 365

(Pa.Super. 2005)). See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal”).

Accordingly, this issue is waived on appeal.

After examining the issue contained in the Anders brief, we concur with

Counsel’s assessment that the appeal is wholly frivolous. “Furthermore, after

conducting a full examination of all the proceedings as required pursuant to

Anders, we discern no non-frivolous issues to be raised on appeal.” Yorgey,

188 A.3d at 1195. Thus, we grant Counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

Petition to withdraw as counsel granted. Judgment of sentence

affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/01/2019

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