Com. v. Flowers, J.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JARON FLOWERS,

Appellant No. 2646 EDA 2018

Appeal from the Judgment of Sentence Entered July 23, 2018 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000783-2018

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 3, 2019

Appellant, Jaron Flowers, appeals from the judgment of sentence of an

aggregate term of 6 to 15 years' incarceration, imposed after he pled guilty

to four counts of robbery, 18 Pa.C.S. § 3701(a)(1)(ii). On appeal, Appellant solely seeks to challenge the discretionary aspects of his sentence.

Additionally, Appellant's counsel, Michael E. Brunnabend, Esq., seeks to

withdraw his representation of Appellant pursuant to Anders v. California,

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

2009). After careful review, we affirm Appellant's judgment of sentence and

grant counsel's petition to withdraw.

Attorney Brunnabend summarizes the pertinent facts of Appellant's

case, as follows:

[Appellant] was charged as a result of an incident that occurred on October 29, 2017 at approximately 9:40 PM. The Allentown Police were called to an incident that occurred on Gordon Street wherein [four] different individuals were approached by [Appellant,] who brandished a firearm and demanded money from them. This included [Appellant's] pointing the firearm at one male victim and forcing that victim to go to an ATM machine and attempt to withdraw monies from the machine. In addition, [Appellant] confronted a female victim who was sitting in her car. He demanded money from her and struck her in the face with the firearm[,] which caused a laceration near her eye. [Appellant] took her purse and fled the scene. [Appellant] was eventually identified as the perpetrator and arrested on January 19, 2018[,] for all of the offenses.

Anders Brief at 12.

For this conduct, Appellant was charged with four counts of robbery. On

June 11, 2018, he entered a negotiated plea agreement with the

Commonwealth, pursuant to which Appellant pled guilty to the robbery

charges in exchange for a minimum sentence that would not exceed 6 years'

imprisonment for each offense, and for concurrent sentences at each count.

In other words, Appellant pled guilty in exchange for an aggregate, minimum

sentence of no more than 6 years' incarceration.

On June 11, 2018, Appellant entered his guilty plea to each count of

robbery, and it was accepted by the court. The court ordered a presentence

investigation report (PSI) and deferred sentencing until July 23, 2018. On

that date, the court imposed an aggravated -range sentence of 6 to 15 years' imprisonment on Appellant's first count of robbery, and concurrent terms of

51/2 to 15 years' incarceration for his remaining counts.

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On August 2, 2018, Appellant filed a motion for reconsideration of his

sentence, which the court denied. He then filed a timely notice of appeal, and

he also timely complied with the court's order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The court thereafter

filed a Rule 1925(a) opinion indicating that it was relying on the rationale set

forth in its August 7, 2018 order denying Appellant's post -sentence motion.

On November 20, 2018, Attorney Brunnabend filed with this Court a

petition to withdraw from representing Appellant. That same day, counsel

also filed an Anders brief, discussing the following issue that Appellant seeks to raise on appeal:

Whether the [trial] court abused its discretion by imposing sentences which were manifestly unreasonable based upon the factors reviewed by the court and that the court failed to properly and fully consider all those factors including [Appellant's] young age?

Anders Brief at 7.

Attorney Brunnabend concludes that this issue is frivolous, and that

Appellant has no other, non -frivolous issues he could pursue herein.

Accordingly,

this Court must first pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief must:

(1) provide a summary of the procedural history and facts, with citations to the record;

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(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. Santiago, 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his 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), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied the technical requirements of Anders

and Santiago, this Court must then "conduct a simple review of the record to

ascertain if there appear on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated." Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

In this case, Attorney Brunnabend's Anders brief complies with the

above -stated requirements. Namely, he includes a summary of the relevant

factual and procedural history, he refers to portions of the record that could

arguably support Appellant's claim, and he sets forth his conclusion that

Appellant's appeal is frivolous. He also explains his reasons for reaching that

determination, and supports his rationale with citations to the record and

pertinent legal authority. Attorney Brunnabend states in his petition to

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withdraw that he has supplied Appellant with a copy of his Anders brief.

Additionally, he attached a letter directed to Appellant to his Anders brief, in

which he informed Appellant of the rights enumerated in Nischan.

Accordingly, counsel has complied with the technical requirements for

withdrawal. We will now independently review the record to determine if

Appellant's issue is frivolous, and to ascertain if there are any other, non -

frivolous claims he could pursue on appeal.

Initially, we note that Appellant received a sentence that complied with

his negotiated guilty plea. This Court has declared that,

[w]here the plea agreement contains a negotiated sentence[,] which is accepted and imposed by the sentencing court, there is no authority to permit a challenge to the discretionary aspects of that sentence. If either party to a negotiated plea agreement believed the other side could, at any time following entry of sentence, approach the judge and have the sentence unilaterally altered, neither the Commonwealth nor any defendant would be willing to enter into such an agreement. Permitting a discretionary appeal following the entry of a negotiated plea would undermine the designs and goals of plea bargaining, and would make a sham of the negotiated plea process.

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991)

(cleaned up).

Here, at the plea proceeding, the Commonwealth stated that Appellant

was agreeing to plead guilty to the four counts of robbery in exchange for the

"binding agreement to run those counts concurrently and to cap [his]

minimum sentence at six years." N.T. Plea, 6/11/18, at 2. Appellant was also

informed that a 6 -year minimum sentence fell at "the midpoint of the

aggravated range of the guidelines utilizing the deadly weapon enhancement."

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Id. Appellant indicated that he understood the agreed -upon sentence, and

that he was voluntarily, knowingly, and intelligently pleading guilty. See id.

at 2-7. Appellant did not seek to withdraw his plea prior to, or after, the

sentence was imposed in this case, and the term of incarceration he received

fully complied with the terms of that agreement.

Moreover, to the extent that the plea agreement allowed for the court

to impose a minimum sentence below 6 years, we discern no abuse of

discretion in the court's decision not to do so. See Commonwealth v.

Moury, 992 A.2d 162, 169 (Pa. Super. 2010) ("The proper standard of review

when considering whether to affirm the sentencing court's determination is an

abuse of discretion. ... An abuse of discretion is more than a mere error of

judgment; thus, a sentencing court will not have abused its discretion unless

the record discloses that the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice, bias or ill -will.") (cleaned

up). The court had the benefit of a PSI, and it considered the arguments of

counsel, as well as Appellant's statement to the court in which he asked for a

sentence of 3 to 6 years' incarceration with boot camp eligibility. See N.T.

Sentencing, 7/23/18, at 6. In the court's order denying Appellant's post -

sentence motion, it explained why it rejected the sentence requested by

Appellant in favor of an aggravated -range sentence:

Prior to sentencing, this [c]ourt carefully reviewed the [PSI]

prepared on July 13, 2018. The [c]ourt was aware of all of the information contained therein, including [Appellant's] assaultive and threatening prior record, [Appellant's] employment history, and [Appellant's] three (3) misconducts while incarcerated in the

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Lehigh County Jail. Also, this [c]ourt did not fail to consider mitigating factors. Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (stating that where the sentencing court had the benefit of a pre -sentence investigation report, it may be assumed that the sentencing court was aware of all relevant information regarding a defendant, including any mitigating factors); Commonwealth v. Devers; ... 46 A.2d 12 ([Pa.] 1988) (holding that where a pre -sentence report exists, there is a presumption that the sentencing judge was aware of and adequately considered information relevant to the defendant's character, as well as any mitigating factors). Indeed, this [c]ourt was aware of [Appellant's] level of cooperation and expression of remorse for his actions.

This [c]ourt articulated the reasons for the imposition of the sentence in the aggravated range of the sentencing guidelines: (1) there were multiple victims [and] multiple offenses; (2) one of the victims sustained substantial and serious injury; (3) [Appellant's] history of assaultive and violent behavior; (4) [Appellant] used a weapon during the commission of the crimes; and (5) [Appellant] is a danger to the community. While this [c]ourt considered the fact that [Appellant] used a weapon during the robbery, this [c]ourt was aware of the fact that the sentencing guidelines already took this into consideration through the deadly weapon enhancement. Consequently, this [c]ourt considered this factor solely in relation to the violent nature of the offense, and did not put any additional weight on the fact that a deadly weapon was used.

Using its discretion, this [c]ourt imposed a sentence that complied with the negotiated plea agreement, and was within the sentencing guidelines and within the law.

Trial Court Order, 8/6/18, at 1 n.1.

The record supports the court's above -stated summary of its reasons

for imposing an aggravated -range sentence for one of Appellant's robbery

offenses. We discern no abuse of discretion in the court's decision.

Consequently, we agree with Attorney Brunnabend that Appellant's sentencing

issue is frivolous. Additionally, our independent review of the record reveals

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J -S17011-19

no other, non -frivolous claims that he could present herein. Therefore, we

grant counsel's petition to withdraw and affirm Appellant's judgment of

sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Jseph D. Seletyn, Prothonotary

Date: 6/3/19