J-S42026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN ANGEL KING : : Appellant : No. 1678 MDA 2017
Appeal from the Judgment of Sentence Entered June 19, 2017 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000483-2016
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 01, 2018
In the process of being stopped by police for a Motor Vehicle Code
violation, Justin Angel King threw 49 bags of heroin out of his car window.
Notes of Testimony (“N.T.”), Sentencing Hearing, 06/19/17, at 3. Following a
jury trial, King was convicted of knowing and intentional possession of a
controlled substance (“K&I”).1 He now appeals from the judgment of sentence
entered on June 19, 2017, contending that the trial court abused its discretion
in sentencing him to six to 23 months’ incarceration. King’s counsel, John M.
Arose, Esq., has filed with this Court a petition to withdraw and an Anders2
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(16).
2 Anders v. California, 386 U.S. 738, 744 (1967). J-S42026-18
brief, on the grounds that King’s direct appeal is wholly frivolous. We grant
counsel’s petition to withdraw and affirm the judgment of sentence.
The facts that led to King’s verdict are not dispositive of this appeal; so
we do not reiterate them. Following the guilty verdict for K&I, the trial court
ordered a Pre-Sentence Investigation (“PSI”) Report and set a date for
sentencing. At the sentencing hearing, the parties agreed that King’s prior
record score was four and the Sentencing Guidelines suggested a minimum
sentence of three to 14 months. After hearing from both parties, as well as
from King himself, the court imposed a sentence of six to 23 months’
incarceration. King filed a post-sentence motion, which the trial court denied.
After the trial court reinstated King’s direct appeal rights, King filed this timely
appeal.
King raises one issue for this Court: “[W]hether the sentencing court
abused its discretion in sentencing [King] to a term of six (6) to twenty-three
(23) months of incarceration upon the conviction of simple possession?” King’s
Br. at 6.
Before we can address the merits of King’s claim, we must first address
counsel’s request to withdraw. Commonwealth v. Daniels, 999 A.2d 590,
593 (Pa.Super. 2010). In order to withdraw from representing a criminal
defendant on appeal, “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 believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s
-2- J-S42026-18
reasons for concluding that the appeal is frivolous.” Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Arose has satisfied all the requirements of Santiago. He
provided a summary of the procedural history and facts, with citations to the
record; set forth the single issue that he believes arguably supports the
appeal; explained why the appeal would be frivolous; and stated his reasons
for that conclusion. We also note that counsel has included with his petition to
withdraw a copy of a letter addressed to King informing him that counsel was
moving to withdraw, that an Anders brief has been filed with this Court, and
advising King of his right to retain new counsel or to proceed pro se in
response to the Anders brief, as required.3 See Commonwealth v.
Millisock, 873 A.2d 748, 751 (Pa.Super. 2005).
We now conduct our own independent assessment of the record to
decide whether this appeal is frivolous and “if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa.Super. 2015).
King’s contention on appeal challenges the discretionary aspects of
sentencing. We therefore must determine whether: (1) the appeal is timely,
(2) the instant issue was properly preserved, (3) the appellant’s brief contains
3 King did not file a response to counsel’s Anders brief.
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a statement pursuant to Pa.R.A.P. 2119(f),4 and (4) there is a substantial
question that the sentence is not appropriate under the Sentencing Code.
Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa.Super. 2017).
Here, King filed a timely Notice of Appeal. However, he failed to preserve
his claim of a manifestly excessive sentence in his post-sentence motion or at
the sentencing hearing. See Commonwealth v. Mann, 820 A.2d 788, 794
(Pa.Super. 2003) (challenges to discretionary aspects of sentencing must be
raised at sentencing hearing or in post-sentence motion). In his post-sentence
motion, he argued only that the trial court erroneously “substituted its finding
of fact in place of the [j]ury’s,” an argument that he abandons on appeal. See
Post-Sentence Motion, filed 06/26/17, at 3 (unpaginated). We therefore
conclude that King has waived this issue. See Pa.R.A.P. 302(a) (an issue not
raised before trial court is waived on appeal). Nevertheless, even if this issue
were properly preserved for appellate review, assuming it presents a
substantial question, the claim is wholly frivolous.
King contends that the trial court imposed a sentence that was
“manifestly excessive such that it constitutes too severe a punishment.” King’s
Br. at 12. The trial court is given sound discretion when sentencing a
defendant and absent an abuse of discretion, we will not disturb its decision. ____________________________________________
4 “An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of the sentence.” Pa.R.A.P. 2119(f).
-4- J-S42026-18
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009). An abuse of
discretion is found where “the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
will.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (quoting
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).
Here, the trial court considered the PSI, King’s criminal history, and the
facts of the case. It also stated its reasons for the sentence imposed:
Free access — add to your briefcase to read the full text and ask questions with AI
J-S42026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN ANGEL KING : : Appellant : No. 1678 MDA 2017
Appeal from the Judgment of Sentence Entered June 19, 2017 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000483-2016
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 01, 2018
In the process of being stopped by police for a Motor Vehicle Code
violation, Justin Angel King threw 49 bags of heroin out of his car window.
Notes of Testimony (“N.T.”), Sentencing Hearing, 06/19/17, at 3. Following a
jury trial, King was convicted of knowing and intentional possession of a
controlled substance (“K&I”).1 He now appeals from the judgment of sentence
entered on June 19, 2017, contending that the trial court abused its discretion
in sentencing him to six to 23 months’ incarceration. King’s counsel, John M.
Arose, Esq., has filed with this Court a petition to withdraw and an Anders2
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(16).
2 Anders v. California, 386 U.S. 738, 744 (1967). J-S42026-18
brief, on the grounds that King’s direct appeal is wholly frivolous. We grant
counsel’s petition to withdraw and affirm the judgment of sentence.
The facts that led to King’s verdict are not dispositive of this appeal; so
we do not reiterate them. Following the guilty verdict for K&I, the trial court
ordered a Pre-Sentence Investigation (“PSI”) Report and set a date for
sentencing. At the sentencing hearing, the parties agreed that King’s prior
record score was four and the Sentencing Guidelines suggested a minimum
sentence of three to 14 months. After hearing from both parties, as well as
from King himself, the court imposed a sentence of six to 23 months’
incarceration. King filed a post-sentence motion, which the trial court denied.
After the trial court reinstated King’s direct appeal rights, King filed this timely
appeal.
King raises one issue for this Court: “[W]hether the sentencing court
abused its discretion in sentencing [King] to a term of six (6) to twenty-three
(23) months of incarceration upon the conviction of simple possession?” King’s
Br. at 6.
Before we can address the merits of King’s claim, we must first address
counsel’s request to withdraw. Commonwealth v. Daniels, 999 A.2d 590,
593 (Pa.Super. 2010). In order to withdraw from representing a criminal
defendant on appeal, “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 believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s
-2- J-S42026-18
reasons for concluding that the appeal is frivolous.” Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Arose has satisfied all the requirements of Santiago. He
provided a summary of the procedural history and facts, with citations to the
record; set forth the single issue that he believes arguably supports the
appeal; explained why the appeal would be frivolous; and stated his reasons
for that conclusion. We also note that counsel has included with his petition to
withdraw a copy of a letter addressed to King informing him that counsel was
moving to withdraw, that an Anders brief has been filed with this Court, and
advising King of his right to retain new counsel or to proceed pro se in
response to the Anders brief, as required.3 See Commonwealth v.
Millisock, 873 A.2d 748, 751 (Pa.Super. 2005).
We now conduct our own independent assessment of the record to
decide whether this appeal is frivolous and “if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa.Super. 2015).
King’s contention on appeal challenges the discretionary aspects of
sentencing. We therefore must determine whether: (1) the appeal is timely,
(2) the instant issue was properly preserved, (3) the appellant’s brief contains
3 King did not file a response to counsel’s Anders brief.
-3- J-S42026-18
a statement pursuant to Pa.R.A.P. 2119(f),4 and (4) there is a substantial
question that the sentence is not appropriate under the Sentencing Code.
Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa.Super. 2017).
Here, King filed a timely Notice of Appeal. However, he failed to preserve
his claim of a manifestly excessive sentence in his post-sentence motion or at
the sentencing hearing. See Commonwealth v. Mann, 820 A.2d 788, 794
(Pa.Super. 2003) (challenges to discretionary aspects of sentencing must be
raised at sentencing hearing or in post-sentence motion). In his post-sentence
motion, he argued only that the trial court erroneously “substituted its finding
of fact in place of the [j]ury’s,” an argument that he abandons on appeal. See
Post-Sentence Motion, filed 06/26/17, at 3 (unpaginated). We therefore
conclude that King has waived this issue. See Pa.R.A.P. 302(a) (an issue not
raised before trial court is waived on appeal). Nevertheless, even if this issue
were properly preserved for appellate review, assuming it presents a
substantial question, the claim is wholly frivolous.
King contends that the trial court imposed a sentence that was
“manifestly excessive such that it constitutes too severe a punishment.” King’s
Br. at 12. The trial court is given sound discretion when sentencing a
defendant and absent an abuse of discretion, we will not disturb its decision. ____________________________________________
4 “An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of the sentence.” Pa.R.A.P. 2119(f).
-4- J-S42026-18
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009). An abuse of
discretion is found where “the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
will.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (quoting
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).
Here, the trial court considered the PSI, King’s criminal history, and the
facts of the case. It also stated its reasons for the sentence imposed:
This is geared with simply an accountability. If you would have had a stellar record, stayed in contact with pretrial services, I would have been in a better position to think that I could go out on a limb and give you an opportunity to go with supervision as opposed to a standard range sentence. . . . This is in the lower end of the standard range.
N.T., Sentencing Hearing, 6/19/17, at 10.
King’s claim is wholly frivolous. Nothing in the record presents any basis
on which King could argue that the trial court’s judgment was “manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.” See Perry,
32 A.3d at 236. The sentence is within the Sentencing Guidelines and the trial
court considered all relevant factors before imposing sentence. Additionally,
our review of the record reveals no other non-frivolous issues counsel could
assert on King’s behalf. Therefore, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed, counsel’s petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/01/2018
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