Com. v. Evans, R.

Superior Court of Pennsylvania

Com. v. Evans, R.

DecidedApril 20, 2018

Docket1539 EDA 2017

StatusUnpublished

This text of Com. v. Evans, R. (Com. v. Evans, R.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Com. v. Evans, R., (Pa. Ct. App. 2018).

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Opinion

J-S14020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : RICHARD EVANS : : No. 1539 EDA 2017 Appellant :

Appeal from the Judgment of Sentence Entered May 5, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014114-2009

BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 20, 2018

Appellant Richard Evans appeals from the judgment of sentence entered

on May 5, 2017 for possession with intent to deliver a controlled substance

(“PWID”); knowing and intentional possession of a controlled substance; use

or possession of drug paraphernalia; and possession of an instrument of crime

(“PIC”).1 In addition to this appeal, appellate counsel has filed a petition to

withdraw his representation and an Anders brief. See Anders v. California,

386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We grant counsel’s petition to withdraw and affirm the judgment of

sentence.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 135 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18 Pa.C.S.A. § 907(a), respectively. J-S14020-18

Following a bench trial on June 12, 2012, Evans was found guilty of the

above-referenced crimes. The trial court sentenced him to the then-

mandatory minimum sentence of five to ten years’ of incarceration for the

charge of PWID for being in possession or control of a firearm at the time of

the offense. See 42 Pa.C.S.A. § 9712.1.2 The court also sentenced him to five

years of probation for the charge of PIC, and imposed no further penalty on

the remaining charges.

Evans filed a post-sentence motion, which the trial court denied on

January 3, 2013. On December 30, 2013, he filed a petition under the Post

Conviction Relief Act3 seeking reinstatement of his right to file a direct appeal.

Evans direct appeal rights were reinstated on September 29, 2015 and he

subsequently filed a timely Notice of Appeal on October 29, 2015. This Court

vacated Evans’ sentence finding that it was illegal in light of Alleyne, and

remanded for re-sentencing. See Commonwealth v. Evans, 159 A.3d 576

(Pa.Super. 2016) (unpublished memorandum).

On May 5, 2017, the trial court resentenced Evans to concurrent terms

of nine to 23 months of incarceration for the PWID and PIC charges, with

credit for time served and immediate parole. No further penalty was imposed

for the remaining charges. Having served just under five years in custody, ____________________________________________

2 This Court held that pursuant to Alleyne v. United States, 570 U.S. 99, 103 (2013), section 9712.1 was unconstitutional. Commonwealth v. Newman, 99 A.3d 86, 88 (Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015)

3 42 Pa.C.S.A. §§ 9541-9546.

-2- J-S14020-18

Evans had completed his maximum sentence at the time he was resentenced.

Evans then filed a Notice of Appeal, pro se, the same day. The court ordered

Evans to file a Concise Statement of Matters Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b). He did not comply with that order. On June

22, 2017 the trial court filed its opinion. Counsel then filed with this Court his

petition to withdraw as counsel as well as an Anders brief.

We first must address counsel’s request to withdraw as Evans’ counsel

before addressing the merits of the issue raised on appeal. Commonwealth

v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005). Pursuant to Anders and

Santiago, when requesting to withdraw from representation, 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 defendant;

and (3) advise the defendant that he or she has the right to retain private

counsel or file a pro se brief raising additional arguments. Commonwealth

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

Here, counsel’s petition to withdraw states that he reviewed the record

thoroughly and could find no non-frivolous argument. Additionally, counsel

mailed Evans a copy of the Anders brief and advised him that he had the

right to retain private counsel or raise additional arguments to the court. We

therefore conclude that counsel has complied with the procedural

requirements of Anders.

-3- J-S14020-18

We now determine whether counsel’s Anders brief meets the

substantive standards under Santiago. In an Anders brief, 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.” Santiago, 978 A.2d at 361.

Here, counsel provides a summary of the procedural history and facts

with citations to the record, refers to the sentencing claim as an issue that

could arguably support the appeal, and explains his reasons for concluding

that the appeal is frivolous. Thus counsel has complied with Santiago.

We now proceed to examine the merits of the issue presented by Evans’

counsel in the Anders brief:

I. The trial court abused its discretion by imposing a sentence that was at the upper limit of the standard range of the sentencing guidelines.

Appellant’s Brief at 2.

Evans asks us to review the discretionary aspects of his sentence.

However, there is no absolute right to appeal the discretionary aspects of a

sentence. Cartrette 83 A.3d at 1042. Rather, we follow a four-part analysis

before addressing a challenge to discretionary aspects of sentence. We must

determine: (1) whether appellant has filed a timely notice of appeal; (2)

whether the issue was properly preserved at sentencing or in a motion to

reconsider or modify sentence; (3) whether appellant’s brief includes a concise

-4- J-S14020-18

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of sentence; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. See 42 Pa.C.S.A. § 9781(b); Commonwealth v. Austin,

66 A.3d 798, 808 (Pa.Super. 2013). Failure to raise an objection to the

discretionary aspects of a sentence at the sentencing hearing or in a post-

sentence motion results in waiver of the issue. Commonwealth v. Moury,

992 A.2d 162, 170 (Pa.Super. 2010).

Here, Evans’ notice of appeal was timely as he filed it the same day that

he was sentenced.

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