Com. v. Fetrow, S.

• Court: Superior Court of Pennsylvania
• Decided: October 9, 2019
• Docket: 141 EDA 2019
• Status: Unpublished

Opinion

J-S30007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STACIE LYNNE FETROW : : Appellant : No. 141 EDA 2019

Appeal from the Judgment of Sentence Entered December 3, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002386-2018

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 09, 2019

Appellant, Stacie Lynne Fetrow, challenges the judgment of sentence

entered in the Delaware County Court of Common Pleas, following her guilty

plea to theft by deception. Appellant disputes the discretionary aspects of her

sentence, arguing that the court issued a manifestly excessive sentence where

it imposed incarceration rather than a probationary term. Appellant’s counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and a motion to

withdraw. After careful review, we affirm.

Appellant was caught embezzling funds for her personal use when the

law firm that employed her conducted routine year-end accounting. She was

arrested and charged with a litany of offenses after the firm reported its

findings to local police. Appellant agreed to enter an open guilty plea to one J-S30007-19

count of theft by deception1 in exchange for the Commonwealth’s agreement

to drop the remaining charges.

Following a guilty plea colloquy, the court accepted Appellant’s open

plea. The court ordered a pre-sentence investigation report. At sentencing,

the court heard from the victims of the offense, and listened to testimony from

Appellant and her attorney regarding Appellant’s history of drug addiction and

other personal struggles. The court then imposed a sentence of three to

twenty-three months’ incarceration, to be served in a combination of weekend

stints in jail and thereafter, house arrest.

Appellant filed a timely notice of appeal. After the court ordered her to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), Appellant’s counsel instead filed notice of his intent to file

an Anders brief. This appeal is now properly before us.

Counsel has identified a single issue of potential merit: “whether the

judgment of sentence is harsh and excessive where the lower court sentenced

Appellant to jail when all the mitigating evidence warranted a sentence of

probation only?” Anders Brief, at 3.

Before addressing the merits of this issue, we are first tasked with

determining whether counsel has complied with the procedures set forth in

Anders. See Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super.

2015).

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1 18 Pa.C.S.A. § 3922.

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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.

Commonwealth v. Tukhi, 149 A.3d 881, 885-886 (Pa. Super. 2016)

(citation omitted).

The Anders brief is subject to particular requirements. Our Supreme

Court dictates that the brief must: provide a summary of the procedural

history and facts of the case, complete with citations to the record; refer to

any information in the record that counsel believes could arguably support the

appeal; present counsel’s conclusion that the appeal is frivolous; and state

counsel’s reasons for so concluding. See Santiago, 978 A.2d at 354. “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.”

Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015)

If this Court determines that counsel’s petition and brief satisfy the

requirements of Anders, we will undertake an independent review of the

appeal to ascertain whether it is wholly frivolous. See Tukhi, 149 A.3d at 886.

If it is found to be frivolous, we will grant counsel’s petition to withdraw, and

affirm the judgment of sentence. See id.

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Here, Appellant’s counsel has satisfied the procedural requirements

imposed. Counsel’s brief complies with the Anders/Santiago obligations set

forth above. Additionally, counsel filed a petition seeking leave to withdraw

his representation of Appellant. In the petition, he affirms he conducted a

thorough review of the record, he did not discover any meritorious issues that

may be raised on appeal, and he has concluded the appeal is wholly frivolous.

Counsel also attached to the petition a copy of the letter he sent to Appellant,

which advises she may retain private counsel or proceed pro se to raise any

additional issues she believes should be brought to this Court’s attention, and

that she should do so quickly. Finally, the letter states counsel enclosed a copy

of the petition to withdraw and his Anders brief. Appellant has not filed a

reply. We will now undertake our own review to determine whether this appeal

is indeed wholly frivolous.

Counsel’s Anders brief raises a single issue for our review. It asserts

the sentence is “harsh and excessive” where the court failed to consider

mitigating evidence, which is a challenge to the discretionary aspects of

Appellant’s sentence. Appellant’s Brief, at 5.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013) (citations omitted). To invoke our jurisdiction, the

appellant must satisfy a four-part test 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

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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. (citation omitted).

“Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to modify

the sentence imposed.” Commonwealth v. Dempster, 187 A.3d 266, 272

(Pa. Super. 2018) (en banc) (citation omitted). For purposes of Anders, an

issue that is waived is frivolous. See Tukhi, 149 A.3d at 888.

As Appellant did not object to the judgment imposed at her sentencing

hearing and failed to file a timely post-sentence motion for reconsideration,

she has waived her challenge to the discretionary aspects of her sentence.2

Thus, we are constrained to agree with counsel that the discretionary aspects

claim presented in the Anders brief is wholly frivolous.

After conducting a full examination of the underlying proceedings, as

required by Anders, we do not discern any additional meritorious issues to

be raised on appeal. Accordingly, we grant counsel’s petition to withdraw, and

affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

2 The transcript from the sentencing hearing confirms Appellant was properly informed of these rights by her trial counsel. See N.T. Sentencing, 12/3/18, at 22-23. And, Appellant completed a post-sentence rights form. See id., at 23; Statement of Post-Sentence Rights, at 1-2.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/9/19

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