J-S58021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
MYGOD KELLY
Appellant No. 2014 MDA 2015
Appeal from the Judgment of Sentence October 16, 2015 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003342-2014
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY Bowes, J.: FILED SEPTEMBER 09, 2016
Mygod Kelly appeals from the judgment of sentence of twenty-four to
forty-eight months imprisonment, with RRRI eligibility set at eighteen
months. The sentence was imposed after Appellant entered a guilty plea to
two counts of possession of a controlled substance (cocaine) with intent to
deliver (“PWID”). Counsel 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.
Based upon the following events, Appellant was charged with
possession of a firearm by a prohibited person and two counts of PWID. In
August 2014, Yshawn Seabrook was a fugitive wanted for a homicide that he
* Retired Senior Judge assigned to the Superior Court. J-S58021-16
committed in New York. Investigating authorities obtained information
linking Seabrook to 54 Reno Lane, Wilkes-Barre. On August 13, 2014,
United States Marshals, Wilkes-Barre Police, and New York police went to 54
Reno Lane in search of Seabrook. When they arrived, Appellant and
Kenneth Williams were sitting on the front porch. Williams told the
authorities that he was renting the residence, and Appellant reported that he
had been living there for two months. Both men denied knowing Seabrook,
but they granted the police and federal marshals permission to search the
home for the fugitive.
Pursuant to that consensual search, the authorities observed a plate of
cocaine and two guns. Appellant and Williams were arrested, and, during a
search incident to his arrest, Appellant was found in possession of cocaine,
which was inside knotted plastic baggies, and $190 in cash. Thereafter,
police obtained a search warrant for 54 Reno Lane, and recovered the
aforementioned plate and weapons as well as drug-dealing paraphernalia.
Appellant had criminal convictions, including several for drug-trafficking
offenses.
After the charges were filed, Appellant litigated an unsuccessful motion
to suppress all the evidence seized from his person and at 54 Reno Lane.
The firearms charge was thereafter severed from the two counts of PWID for
purposes of trial. On August 3, 2015, the day that the jury trial was
scheduled, Appellant pled guilty to one count of PWID for possession of 5.78
-2- J-S58021-16
grams of cocaine and another count of PWID for possession of 11.54 grams
of cocaine. N.T. Guilty Plea, 8/3/15, at 19. The firearms offense was
withdrawn. Both PWIDs were ungraded felonies with a maximum penalty of
ten years imprisonment, and, while there was no agreement as to the
maximum sentence to be imposed, the sentence on each offense had to be
imposed concurrently to each other. Id. The Commonwealth also indicated
that it would not object to a sentence of intermediate punishment. A
presentence report was ordered.
The matter proceeded to sentencing on October 16, 2015, and the
court had reviewed the presentence report. Appellant had a prior record
score of three and the standard range of the guidelines for both offenses
was eighteen to twenty-four months. Appellant received a sentence of
eighteen to thirty-six months imprisonment for the PWID of 5.78 grams of
cocaine and a concurrent sentence of twenty-four to forty-eight months for
the PWID of 11.54 grams of cocaine. The sentencing court made Appellant
RRRI eligible, with the RRRI minimum being eighteen months. Appellant
was informed of his post-sentencing rights, including that he had to file a
post-sentence motion within ten days. N.T. Sentencing, 11/16/15, at 9. No
objection to the sentence was raised during the October 16, 2015
proceeding.
Appellant did not file a post-sentence motion, but instituted this timely
direct appeal. As noted, counsel has moved to withdraw. Since we do not
-3- J-S58021-16
consider the merits of an issue raised in an Anders brief without first
reviewing a request to withdraw, we now address counsel’s petition to
withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)
(en banc). In order to be permitted to withdraw, counsel must meet three
procedural requirements: 1) petition for leave to withdraw and state that,
after making a conscientious examination of the record, counsel has
concluded that the appeal is frivolous; 2) provide a copy of the Anders brief
to the defendant; and 3) inform the defendant that he has the right to retain
private counsel or raise, pro se, additional arguments that the defendant
deems worthy of the court’s attention. Id.
Counsel’s petition to withdraw states that he made a conscientious
examination of the record and determined that this appeal is frivolous.
Attached to the petition to withdraw is a copy of a letter that counsel sent to
Appellant. In the letter, counsel indicated that he furnished Appellant a copy
of the brief and petition to withdraw. Counsel also told Appellant that he
had the right to hire a private attorney and urged Appellant to take that
action as soon as possible. Counsel then informed Appellant that,
alternatively, he could represent himself for purposes of this appeal and
raise any issues pro se that he felt had merit. Accordingly, counsel has
complied with the procedural aspects of Anders.
-4- J-S58021-16
We next examine whether counsel’s Anders brief meets the
substantive elements of Santiago. Pursuant to Santiago, an Anders brief
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. 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, supra at 361.
Counsel’s brief is compliant with Santiago. It contains a summary of
the procedure and facts and presents sentencing issues that could arguably
support the appeal. Counsel references case law indicating why he arrived
at the conclusion that the issues are frivolous. The two issues presented on
appeal are “1. Should the Court accept jurisdiction to review [Appellant’s]
sentence? 2. Did the trial court abuse its discretion in sentencing
[Appellant]?” Appellant’s brief at 3.
Appellant thus raises challenges to the discretionary aspects of his
sentence. A defendant does not enjoy an appeal as of right from the
discretionary aspects of his sentence. Commonwealth v. Giordano, 121
A.3d 998 (Pa.Super. 2015). Instead, merits review of such a claim can be
Free access — add to your briefcase to read the full text and ask questions with AI
J-S58021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
MYGOD KELLY
Appellant No. 2014 MDA 2015
Appeal from the Judgment of Sentence October 16, 2015 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003342-2014
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY Bowes, J.: FILED SEPTEMBER 09, 2016
Mygod Kelly appeals from the judgment of sentence of twenty-four to
forty-eight months imprisonment, with RRRI eligibility set at eighteen
months. The sentence was imposed after Appellant entered a guilty plea to
two counts of possession of a controlled substance (cocaine) with intent to
deliver (“PWID”). Counsel 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.
Based upon the following events, Appellant was charged with
possession of a firearm by a prohibited person and two counts of PWID. In
August 2014, Yshawn Seabrook was a fugitive wanted for a homicide that he
* Retired Senior Judge assigned to the Superior Court. J-S58021-16
committed in New York. Investigating authorities obtained information
linking Seabrook to 54 Reno Lane, Wilkes-Barre. On August 13, 2014,
United States Marshals, Wilkes-Barre Police, and New York police went to 54
Reno Lane in search of Seabrook. When they arrived, Appellant and
Kenneth Williams were sitting on the front porch. Williams told the
authorities that he was renting the residence, and Appellant reported that he
had been living there for two months. Both men denied knowing Seabrook,
but they granted the police and federal marshals permission to search the
home for the fugitive.
Pursuant to that consensual search, the authorities observed a plate of
cocaine and two guns. Appellant and Williams were arrested, and, during a
search incident to his arrest, Appellant was found in possession of cocaine,
which was inside knotted plastic baggies, and $190 in cash. Thereafter,
police obtained a search warrant for 54 Reno Lane, and recovered the
aforementioned plate and weapons as well as drug-dealing paraphernalia.
Appellant had criminal convictions, including several for drug-trafficking
offenses.
After the charges were filed, Appellant litigated an unsuccessful motion
to suppress all the evidence seized from his person and at 54 Reno Lane.
The firearms charge was thereafter severed from the two counts of PWID for
purposes of trial. On August 3, 2015, the day that the jury trial was
scheduled, Appellant pled guilty to one count of PWID for possession of 5.78
-2- J-S58021-16
grams of cocaine and another count of PWID for possession of 11.54 grams
of cocaine. N.T. Guilty Plea, 8/3/15, at 19. The firearms offense was
withdrawn. Both PWIDs were ungraded felonies with a maximum penalty of
ten years imprisonment, and, while there was no agreement as to the
maximum sentence to be imposed, the sentence on each offense had to be
imposed concurrently to each other. Id. The Commonwealth also indicated
that it would not object to a sentence of intermediate punishment. A
presentence report was ordered.
The matter proceeded to sentencing on October 16, 2015, and the
court had reviewed the presentence report. Appellant had a prior record
score of three and the standard range of the guidelines for both offenses
was eighteen to twenty-four months. Appellant received a sentence of
eighteen to thirty-six months imprisonment for the PWID of 5.78 grams of
cocaine and a concurrent sentence of twenty-four to forty-eight months for
the PWID of 11.54 grams of cocaine. The sentencing court made Appellant
RRRI eligible, with the RRRI minimum being eighteen months. Appellant
was informed of his post-sentencing rights, including that he had to file a
post-sentence motion within ten days. N.T. Sentencing, 11/16/15, at 9. No
objection to the sentence was raised during the October 16, 2015
proceeding.
Appellant did not file a post-sentence motion, but instituted this timely
direct appeal. As noted, counsel has moved to withdraw. Since we do not
-3- J-S58021-16
consider the merits of an issue raised in an Anders brief without first
reviewing a request to withdraw, we now address counsel’s petition to
withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)
(en banc). In order to be permitted to withdraw, counsel must meet three
procedural requirements: 1) petition for leave to withdraw and state that,
after making a conscientious examination of the record, counsel has
concluded that the appeal is frivolous; 2) provide a copy of the Anders brief
to the defendant; and 3) inform the defendant that he has the right to retain
private counsel or raise, pro se, additional arguments that the defendant
deems worthy of the court’s attention. Id.
Counsel’s petition to withdraw states that he made a conscientious
examination of the record and determined that this appeal is frivolous.
Attached to the petition to withdraw is a copy of a letter that counsel sent to
Appellant. In the letter, counsel indicated that he furnished Appellant a copy
of the brief and petition to withdraw. Counsel also told Appellant that he
had the right to hire a private attorney and urged Appellant to take that
action as soon as possible. Counsel then informed Appellant that,
alternatively, he could represent himself for purposes of this appeal and
raise any issues pro se that he felt had merit. Accordingly, counsel has
complied with the procedural aspects of Anders.
-4- J-S58021-16
We next examine whether counsel’s Anders brief meets the
substantive elements of Santiago. Pursuant to Santiago, an Anders brief
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. 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, supra at 361.
Counsel’s brief is compliant with Santiago. It contains a summary of
the procedure and facts and presents sentencing issues that could arguably
support the appeal. Counsel references case law indicating why he arrived
at the conclusion that the issues are frivolous. The two issues presented on
appeal are “1. Should the Court accept jurisdiction to review [Appellant’s]
sentence? 2. Did the trial court abuse its discretion in sentencing
[Appellant]?” Appellant’s brief at 3.
Appellant thus raises challenges to the discretionary aspects of his
sentence. A defendant does not enjoy an appeal as of right from the
discretionary aspects of his sentence. Commonwealth v. Giordano, 121
A.3d 998 (Pa.Super. 2015). Instead, merits review of such a claim can be
obtained only when a four-part test is satisfied: 1) there is a timely appeal;
2) the issue is preserved in the trial court proceedings and in a Pa.R.A.P.
-5- J-S58021-16
1925(b) statement; 3) the brief includes a concise statement of the reasons
relied upon for allowance of appeal to this Court from the discretionary
aspects of a sentence as required by Pa.R.A.P. 2119(f); and 4) that
statement raises the existence of a substantial question that the sentence is
not appropriate under the Sentencing Code. Id.
Herein, Appellant cannot obtain review of the discretionary aspects of
his sentence in that no challenge in that respect was preserved during the
trial court proceedings. Appellant raised no objection to the sentence when
it was imposed, and he failed to file a post-sentence motion. Hence, any
contention relating to the discretionary aspects of his sentence is waived.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003) (citation
omitted) (“[I]ssues challenging the discretionary aspects of sentencing must
be raised in a post-sentence motion or by raising the claim during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.”).
We have conducted an independent review of the record, as required
by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),
and have concluded that there are no preserved issues of arguable merit
that can be raised in this appeal. Hence, we concur with counsel’s
assessment and allow him to withdraw.
Petition of Michael C. Kostelaba, Esquire, to withdraw is granted.
Judgment of sentence affirmed.
-6- J-S58021-16
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/9/2016
-7-