Com. v. Gales, A.

• Court: Superior Court of Pennsylvania
• Decided: April 10, 2017
• Docket: Com. v. Gales, A. No. 3102 EDA 2016
• Status: Unpublished

Opinion

J-S18011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANTONIO GALES

Appellant No. 3102 EDA 2016

Appeal from the Judgment of Sentence September 1, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005615-2007

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J. 

MEMORANDUM BY PANELLA, J. FILED APRIL 10, 2017

Appellant, Antonio Gales, appeals from the judgment of sentence

entered on September 1, 2016 in the Philadelphia County Court of Common

Pleas. Additionally, Appellant’s appointed counsel, Stephen O’Hanlon,

Esquire, has filed a petition to withdraw from representation, and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s

petition to withdraw and affirm.

This case returned to the trial court after a panel of this Court vacated

the mandatory minimum sentence imposed for aggravated indecent assault

of a child and remanded for resentencing. See Commonwealth v. Gales,

____________________________________________

 Retired Justice assigned to the Superior Court. J-S18011-17

127 EDA 2015 (Pa. Super., filed Jan. 2016) (unpublished memorandum)

(affirming trial court’s order designating of appellant as a sexually violent

predator, vacating mandatory minimum sentence of five to ten years for

aggravated indecent assault of a child pursuant to the holding in Alleyne v.

United States, 133 S.Ct. 2151 (2013)).

On remand, the trial court resentenced Appellant to a period of

imprisonment of five to ten years for aggravated indecent assault of a child,

without regard to the mandatory minimum as set forth in 42 Pa.C.S.A. §

9718. Attorney O’Hanlon filed a post-sentence motion on Appellant’s behalf,

which was later denied by the trial court. This timely appeal follows.

As noted, Attorney O’Hanlon has requested to withdraw and has

submitted an Anders brief in support thereof contending that Appellant’s

appeal is frivolous. The Pennsylvania Supreme Court has articulated the

procedure to be followed when court-appointed counsel seeks to withdraw

from representing an appeal on direct appeal.

[I]n 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 arguably believes 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.

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Attorney O’Hanlon has substantially complied with all of the

requirements of Anders as articulated in Santiago. Additionally, Attorney

O’Hanlon confirms he sent a copy of that Anders brief as well as a letter

explaining to Appellant that he has the right to proceed pro se or the right to

retain new counsel. A copy of the letter is appended to Attorney O’Hanlon’s

petition. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.

2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.

2005). Appellant did not file a response to Attorney O’Hanlon’s brief.

We will now proceed to examine the sole issue on appeal. In his Rule

1925(c)(4) statement, Appellant contends that the trial court abused its

discretion by imposing a five to ten year sentence on his aggravated

indecent assault of a child conviction. See Rule 1925(c)(4) Statement,

10/8/16, at 1. Appellant concedes that his argument challenges the

discretionary aspects of the trial court’s sentence. See Anders Brief, at 8.

“A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence. See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

As this Court has explained,

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[t]o reach the merits of a discretionary sentencing issue, we conduct a fourt-part analysis to determine: (1) whether appellant filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code[.]

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citations

omitted.

Here, Appellant filed a timely notice of appeal and properly preserved

his claims in a post-sentence motion. However, Attorney O’Hanlon does not

include the requisite Rule 2119(f) concise statement or indicate through the

statement of questions presented that Appellant desires to challenge the

discretionary aspects of his sentence in his Anders brief. See, e.g.,

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(“[W]e cannot look beyond the statement of questions presented and the

prefatory 2119(f) statement to determine whether a substantial question

exists.”)

Ordinarily, we would find this sentencing claim waived. See, e.g.,

Commonwealth v. Gambal, 561 A.2d 710, 713 (Pa. 1989). Further, we

would have noted that this claim would not have even raised a substantial

question for our review. See, e.g., Commonwealth v. Fisher, 47 A.3d

155, 159 (Pa. Super. 2012) (“[A] bald allegation that a sentence is excessive

does not by itself raise a substantial question.”). However, in the context of

counsel’s petition to withdraw, we must address Appellant’s contention. See

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Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating

that where counsel files an Anders brief, this Court will review discretionary

aspects of sentencing claims that were otherwise not preserved).

Our standard of review for challenges to discretionary aspects of

sentencing is well settled:

[S]entencing is vested in the discretion of the trial court, and will not be disturbed absent a manifest abuse of that discretion. An abuse of discretion involves a sentence which was manifestly unreasonable, or which resulted from partiality, prejudice, bias or ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006)

(citation omitted).

Here, Attorney O’Hanlon correctly notes that the trial court imposed a

sentence within the standard range of the sentencing guidelines. A sentence

within the standard range is considered presumptively reasonable. See

Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006). To

succeed on a challenge to a standard range sentence, Appellant must show

that “the case involves circumstances where the application of the guidelines

would be clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). Appellant does

not, and cannot, do so. As counsel notes “Appellant’s crimes were egregious

given his repeated violent and sexual contact with an eight-year old.”

Anders Brief, at 10. We agree. The sentence imposed by the trial court is in

no way excessive under these circumstances. Thus, Appellant’s challenge to

the discretionary aspects of his sentence fails.

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After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/10/2017

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