Com. v. Danser, K.

Superior Court of Pennsylvania

Com. v. Danser, K.

DecidedJune 14, 2016

Docket1611 MDA 2015

StatusUnpublished

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Com. v. Danser, K., (Pa. Ct. App. 2016).

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Opinion

J-S47034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KEVIN DANSER

Appellant No. 1611 MDA 2015

Appeal from the Judgment of Sentence August 21, 2015 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000277-2015, CP-40-CR-0000770-2014, CP-40-CR-0000832-2015, CP-40-CR-0001773-2013, CP-40-0004284-2013, CP-40-CR-0004292-2013

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

MEMORANDUM BY LAZARUS, J.: FILED JUNE 14, 2016

Kevin Danser appeals from the judgments of sentence imposed in the

Court of Common Pleas of Luzerne County after he pled guilty to several

offenses. Danser’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 Danser’s judgment of sentence based on the opinion of

the Honorable Michael T. Vough. J-S47034-16

On May 13, 2015, Danser pled guilty on six informations charging him

with theft by unlawful taking or disposition,1 receiving stolen property,2

criminal trespass,3 access device fraud4 and conspiracy.5

On August 21, 2015, the court imposed an aggregate sentence of

incarceration of 41 to 82 months. Each of the sentences was within the

standard range.

Danser filed a timely pro se notice of appeal. Following his

appointment by the trial court, counsel filed a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal asserting that the court failed to consider

Danser’s rehabilitative needs by not imposing a sentence of intermediate

punishment. The court filed its Rule 1925(a) opinion on November 5, 2015.

However, the trial record, including the trial court opinion, was not received

in this Court until February 5, 2016.

Counsel filed an Anders brief and a motion to withdraw.6 “When

faced with a purported Anders brief, this Court may not review the merits of ____________________________________________

1 18 Pa.C.S. § 3921(a). 2 18 Pa.C.S. § 3925(a). 3 18 Pa.C.S. § 3503(a)(1)(ii). 4 18 Pa.C.S. § 4106(a)(1)(ii). 5 18 Pa.C.S. § 903. 6 The Anders brief was due on March 16, 2016. It was received in the prothonotary’s office on March 17, 2016. “Briefs shall be deemed filed on (Footnote Continued Next Page)

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the underlying issues without first passing on the request to withdraw.”

Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super. 2005).

Furthermore, counsel must comply with certain mandates when seeking to

withdraw pursuant to Anders, Santiago, and McClendon. These mandates

are not overly burdensome and have been summarized as follows:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf).

_______________________ (Footnote Continued)

the date of mailing if first class, express, or priority United States Postal Service mail is utilized.” Pa.R.A.P. 2185(a)(1). Here, the postal information on the mailing envelope did not contain a date. Unfortunately, counsel was unable to provide proof when the brief was mailed. In light of the fact that counsel’s office is in Kingston, Luzerne County and the prothonotary’s office is in Harrisburg, it is reasonable to assume that the brief was mailed on or before March 16, 2016 since it was received on March 17, 2016. Accordingly, we deem it timely filed.

-3- J-S47034-16

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations

omitted).

Here, counsel has provided the facts and procedural history of the

case, and avers that, after a thorough review of the record, he finds the

appeal to be wholly frivolous, and states his reasons for this conclusion.

Counsel provided a copy of the petition and Anders brief to Danser, advised

him of his right to retain new counsel, or proceed pro se. Accordingly, we

find counsel has met the requirements of Anders, McClendon and

Santiago.

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).

In his Anders brief, the sole issue raised by counsel is whether the

court abused its discretion in denying his request for intermediate

punishment and for failing to consider his rehabilitative needs.

Danser’s allegation is a challenge to the discretionary aspect of his

sentence, which is not appealable as of right. Rather, an appellant

challenging the sentencing court’s discretion must invoke this Court’s

jurisdiction by satisfying a four-part test. Commonwealth v. Prisk, 13

A.3d 526 (Pa. Super. 2011).

We 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

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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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

Here, Danser filed a timely notice of appeal and has preserved his

claim by raising it in his statement of errors complained of on appeal.

Finally, Danser’s counsel has included in his Anders brief a statement

pursuant to Pa.R.A.P. 2119(f).

Judicial review of the discretionary aspects of a sentence is granted

only upon a showing that there is a substantial question that the sentence

was inappropriate and contrary to the fundamental norms underlying the

Sentencing Code. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision in the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”

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