Com. v. Guerrier, C.

• Court: Superior Court of Pennsylvania
• Decided: April 12, 2022
• Docket: 761 MDA 2021
• Status: Unpublished

Opinion

J-S08023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CALEB C. GUERRIER : : Appellant : No. 761 MDA 2021

Appeal from the Judgment of Sentence Entered April 26, 2021 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000909-2016

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY NICHOLS, J.: FILED: APRIL 12, 2022

Appellant Caleb C. Guerrier appeals from the judgment of sentence

imposed after he pled nolo contendere to robbery. Appellant’s counsel

(Counsel) has filed a petition to withdraw and an Anders/Santiago1 brief.

For the reasons stated herein, we deny Counsel’s petition to withdraw and

direct Counsel to submit an amended Anders/Santiago brief or an advocate’s

brief.

Briefly, Appellant was charged with robbery and related offenses2

following a November 2015 incident at a hotel in Wilkes-Barre. See Criminal

Compl., 12/7/15, at 6-7. On April 6, 2021, Appellant entered a nolo

contendere plea to robbery. Plea Agreement, 4/6/21. In exchange, the ____________________________________________

1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

2 18 Pa. C.S. § 3701(a)(1)(iv). J-S08023-22

Commonwealth agreed to withdraw the remaining charges and recommend a

sentence concurrent to Appellant’s existing federal sentence. Id. The trial

court subsequently sentenced Appellant to fifteen to thirty months’

incarceration, to run concurrent to any other sentences Appellant was already

serving. N.T. Sentencing Hearing, 4/26/21, at 7-8.

Appellant filed a timely post-sentence motion requesting reconsideration

and modification of his sentence, which the trial court denied. Appellant filed

a timely appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court issued a Rule 1925(a) opinion addressing Appellant’s claims.

In the Anders/Santiago brief, Counsel identifies the following issue:

Whether the trial court abused its discretion in failing to consider the Appellant’s rehabilitative needs; length of incarceration; need for medical treatment; and his remorse.

Anders/Santiago Brief at 1.

“When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted). Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

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arguments that the appellant considers worthy of the court’s attention. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc).

Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

(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. 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.

“Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

Here, Counsel has complied with the procedural requirements for

seeking withdrawal by filing a petition to withdraw, sending Appellant a letter

explaining his appellate rights, and supplying Appellant with a copy of the

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Anders/Santiago brief.3 See Goodwin, 928 A.2d at 290. Moreover,

Counsel’s Anders/Santiago brief complies with the requirements of

Santiago. Counsel includes a summary of the relevant factual and procedural

history, refers to the portions of the record that could arguably support

Appellant’s claim, and sets forth the conclusion that the appeal is frivolous.

See Santiago, 978 A.2d at 361. Accordingly, we conclude that Counsel has

met the technical requirements of Anders and Santiago, and we will proceed

to address the issues raised in Counsel’s Anders/Santiago brief.

In the Anders/Santiago brief, Counsel identifies Appellant’s challenge

to the discretionary aspects of his sentence. Anders/Santiago Brief at 6.

Specifically, Appellant claims that the sentencing court “abused its discretion

in failing to consider his rehabilitative needs, the length of incarceration he

had undergone since his arrest[,] his need for medical treatment, and his

remorse.” Id. at 7.

Initially, we note that “[i]n terms of its effect upon a case, a plea of nolo

contendere is treated the same as a guilty plea.” Commonwealth v. Lewis,

791 A.2d 1227, 1230 (Pa. Super. 2002) (citations omitted). “Generally, a plea

of guilty amounts to a waiver of all defects and defenses except those

concerning the jurisdiction of the court, the legality of the sentence, and the

validity of the guilty plea.” Commonwealth v. Morrison, 173 A.3d 286, 290

(Pa. Super. 2017) (citation omitted). It is well settled that a defendant “who

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3 Appellant did not file a response to Counsel’s petition to withdraw.

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pleads guilty and receives a negotiated sentence may not then seek

discretionary review of that sentence.” Commonwealth v. O’Malley, 957

A.2d 1265, 1267 (Pa. Super. 2008) (citation omitted). “However, when the

plea agreement is open, containing no bargain for a specific or stated term of

sentence, the defendant will not be precluded from appealing the discretionary

aspects of his sentence.” Commonwealth v. Guth, 735 A.2d 709, 711 n.3

(Pa. Super. 1999) (citation omitted).

Here, Appellant’s nolo contendere plea did not contain any bargain for

a specific sentence, only an agreement that the Commonwealth would

recommend that trial court should impose a sentence concurrent to

Appellant’s federal sentence. See Plea Agreement, 4/6/21. Therefore,

Appellant is not precluded from challenging the discretionary aspects of his

sentence on appeal. See Guth, 735 A.2d at 711 n.3.

It is well settled that

challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

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 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).

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Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some

citations omitted and formatting altered).

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

sentencing issue in both a post-sentence motion and Pa.R.A.P. 1925(b)

statement. Further, Counsel has included a Pa.R.A.P. 2119(f) statement in

the Anders/Santiago brief. See Proctor, 156 A.3d at 273. Therefore, we

must determine whether Appellant’s claim raises a substantial question for

review.

“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 of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.” Id.

(citation omitted).

This Court has held that a claim that a trial court “failed to give adequate

weight to mitigating factors does not present a substantial question

appropriate for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa. Super. 2013); see also Commonwealth v. Donning, 990 A.2d 788,

794 (Pa Super. 2010). However, this Court has explained that “a claim that

the trial court failed to consider relevant sentencing criteria, including . . . the

rehabilitative needs of [the a]ppellant, as 42 Pa.C.S. § 9721(b) requires,

presents a substantial question for our review.” Commonwealth v.

Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020) (citation omitted and

formatting altered).

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Here, Counsel’s Rule 2119(f) statement identifies Appellant’s claim that

the “trial court abused its discretion and violated the sentencing code in failing

to consider the Appellant’s rehabilitative needs; length of incarceration;

Appellant’s need for medical treatment; and Appellant’s remorse.”

Anders/Santiago Brief at 3. However, Counsel ultimately concludes that

Appellant’s claim is frivolous because it does not present a substantial question

for our review. Id. at 7-8 (citing Disalvo, 70 A.3d 900; Donning, 990 A.2d

788).

Instantly, following our review of the record, we conclude that

Appellant’s sentencing claim raises a substantial question for our review

because this Court has held that a claim alleging the trial court’s failure to

consider the rehabilitative needs of the defendant, which is one of the Section

9721(b) sentencing factors, raises a substantial question. Compare

Derrickson, 242 A.3d at 680 with Disalvo, 70 A.3d at 903. However,

because Counsel did not address the underlying merits of Appellant’s

sentencing claim, we are unable to determine whether Appellant’s appeal is

wholly frivolous. Therefore, we must deny Counsel’s petition to withdraw and

remand this case for further proceedings. See Santiago, 978 A.2d at 358

(stating that “only [complete frivolity] supports counsel’s request to withdraw

and a court’s order granting the request” (citation omitted)).

On remand, Counsel shall have thirty days to file a new petition to

withdraw and an amended Anders/Santiago brief addressing the merits of

Appellant’s discretionary sentencing claim, or to file an advocate’s brief on

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Appellant’s behalf. The Commonwealth shall have thirty days thereafter to

file a response.

Petition to withdraw denied. Case remanded with instructions. Panel

jurisdiction retained.

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