Com. v. Kobaly, A.

• Court: Superior Court of Pennsylvania
• Decided: February 27, 2025
• Docket: 1225 WDA 2024
• Status: Unpublished

Opinion

J-S06041-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALIZE JONTE KOBALY : : Appellant : No. 1225 WDA 2024

Appeal from the Judgment of Sentence Entered September 20, 2023 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001724-2022

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: February 27, 2025

Appellant, Alize Jonte Kobaly, appeals nunc pro tunc from the judgment

of sentence of 22 to 44 months’ incarceration and $2,171.17 restitution,

imposed after he pled guilty to attempted burglary, terroristic threats, theft

by unlawful taking, reckless endangerment, harassment, disorderly conduct,

and criminal mischief. On appeal, Appellant seeks to challenge the validity of

his guilty plea, the discretionary aspects of his sentence, and the legality of

his sentence. Additionally, Appellant’s counsel, James V. Natale, 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.

The facts of Appellant’s case were summarized at his guilty plea hearing,

as follows: J-S06041-25

[The Commonwealth]: Your Honor, on or about August 9, 2022, [Appellant] did attempt to enter 648 Flynn Avenue in German Township, Fayette County[,] while brandishing a firearm by pounding on the front door[,] breaking … out windows, using a child’s scooter, as well as his hands and fist[s] to break the windows. [Appellant] did threaten James Peggues to shoot him while brandishing a firearm. [Appellant] did steal a Blink security camera belonging to Gloria Peggues with the intent to deprive the owner there of [sic]. [Appellant] did place James Peggues and A.C., a minor, in danger of death or serious bodily injury by brandishing a firearm and threatening to kill James Peggues. [Appellant] did damage a security camera, … a steel entry door, and … three windows. [Appellant] did threaten James Peggues….

N.T. Plea, 9/8/23, at 16-17.

Based on these facts, the court accepted Appellant’s guilty plea to the

above-stated crimes. On September 20, 2023, the court sentenced Appellant

to a term of 22 to 44 months’ incarceration for his attempted burglary

conviction. The court imposed no further penalty for his remaining offenses.

After procedural complexities not relevant to our disposition herein, Appellant

filed a post-sentence motion nunc pro tunc on October 20, 2023. The court

denied that motion on October 26, 2023. Appellant filed an appeal, but further

procedural complications resulted in this Court’s quashing his appeal on June

13, 2024. On August 1, 2024, Appellant filed a petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the

reinstatement of his direct appeal rights. On September 24, 2024, the court

issued an order reinstating Appellant’s right to file an appeal, and he filed a

nunc pro tunc notice of appeal on October 4, 2024. Appellant and the court

thereafter complied with Pa.R.A.P. 1925.

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On December 6, 2024, Attorney Natale filed with this Court a petition to

withdraw from representing Appellant. That same day, counsel also filed an

Anders brief, discussing the following three issues that Appellant seeks to

raise on appeal:

1. Whether [Appellant] entered a knowing, voluntary, and intelligent plea of guilty in the above[-]captioned case?

2. Whether the sentencing court abused its discretion when it sentenced Appellant?

3. Whether the sentencing court imposed more than one sentence for the same criminal act?

Anders Brief at 2 (unnecessary capitalization omitted).

Attorney Natale concludes that these issues are frivolous, and that

Appellant has no other, non-frivolous claims 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;

(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

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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, … 936 A.2d 40 ([Pa.] 2007).

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

determining that counsel has satisfied these technical requirements of Anders

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

ascertain if there appear[s] 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 Natale’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 claims, and he sets forth his conclusion that Appellant’s

appeal is frivolous. Counsel also explains his reasons for reaching that

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

pertinent legal authority. Additionally, Attorney Natale states in his petition

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

and he attached a letter directed to Appellant to his petition to withdraw in

which he informed Appellant of the rights enumerated in Nischan.

Accordingly, counsel has complied with the technical requirements for

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

Appellant’s issues are frivolous, and to ascertain if there are any other, non-

frivolous claims he could pursue on appeal.

First, Appellant challenges the validity of his plea. We recognize that “a

defendant who attempts to withdraw a guilty plea after sentencing must

demonstrate prejudice on the order of manifest injustice before withdrawal is

justified.” Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013)

(citations omitted). “A plea rises to the level of manifest injustice when it was

entered into involuntarily, unknowingly, or unintelligently.” Id. (citation

omitted).

Here, the trial court set forth a detailed discussion in its Rule 1925(a)

opinion of why it concluded that Appellant’s plea was knowingly, voluntarily,

and intelligently entered. See Trial Court Opinion (TCO), 11/1/24, at 3-5.

Namely, the court noted that “Appellant confirmed that he understood the

nature of the charges against him[,]” and the Commonwealth “read aloud the

factual basis for the charges, which Appellant confirmed he heard.” Id. at 4

(citing N.T. Plea at 11-12, 16-17). Appellant admitted that he did the conduct

alleged. Id. (citing N.T. Plea at 18-20).

Additionally, the “[c]ourt confirmed that Appellant had reviewed the

entirety of the written guilty plea petition with his attorney and that he

understood it.” Id. (citing N.T. Plea at 9). He was notified in the written plea

colloquy of his “right to a trial by jury (and associated rights)[,] as well as the

right to a presumption of innocence, and … that by pleading guilty, those rights

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were waived.” Id. (citation omitted). The court stressed to Appellant that he

did not have to plead guilty, and he had the absolute right to take his case to

trial. Id. at 4-5 (citing N.T. Plea at 14).

Appellant was also told of the maximum penalties he faced, and the

standard guideline ranges, given his prior record score and the offense gravity

scores. Id. at 5 (citing N.T. Plea at 15-16). Moreover, Appellant was informed

in the written plea colloquy that the court ultimately would decide his

sentence, and he was told at the oral plea colloquy “that the sentencing

guidelines are advisory[,] and that his sentence could be as little as 22 to 44

months or as much as 36 to 72 months.” Id. (citing N.T. Plea at 16).

Appellant was asked if he had been promised any particular sentence, and he

said no. Id. (citing N.T. Plea at 16). Finally, Appellant confirmed that he was

satisfied with the representation of his attorney and the time he had to consult

with counsel about his case. Id. (citing N.T. at 20-21).

Based on this record, we conclude that the required elements of a plea

colloquy were met in this case. See Commonwealth v. Morrison, 878 A.2d

102, 107 (Pa. Super. 2005) (“A valid plea colloquy must delve into six areas:

1) the nature of the charges, 2) the factual basis for the plea, 3) the right to

a jury trial, 4) the presumption of innocence, 5) the sentencing ranges, and

6) the plea court’s power to deviate from any recommended sentence) (citing

Comment to Pa.R.Crim.P. 590(A)(2)). Accordingly, Appellant’s plea was

knowing, intelligent, and voluntary. His first issue is frivolous.

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We likewise conclude that Appellant’s second claim, alleging that the

court abused its discretion in fashioning his sentence, is also frivolous. It is

well-settled that

[s]entencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).1

In this case, Attorney Natale points out that Appellant was sentenced to

a term of incarceration only for his burglary conviction. See Anders Brief at

15. The standard guideline range applicable to that offense calls for a

minimum term of incarceration of 22 to 36 months and, thus, the court’s

____________________________________________

1 We recognize that “[c]hallenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right.” Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). Instead, “[a]n appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test” that includes presenting a Pa.R.A.P. 2119(f) statement showing “there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code….” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal citations omitted)). Here, Attorney Natale did not set forth a Rule 2119(f) statement in his Anders brief. However, “[w]here counsel files an Anders brief, this Court has reviewed the matter even absent a separate [Rule] 2119(f) statement.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citing Commonwealth v. Lilley, 978 A.2d 995 (Pa. Super. 2009); Commonwealth v. Wilson, 578 A.2d 523 (Pa. Super. 1990)). “Hence, we do not consider counsel’s failure to submit a Rule 2119(f) statement as precluding review of whether Appellant’s issue is frivolous.” Id.

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sentence of 22 to 44 months’ incarceration was at the low end of the standard

guideline range. Id. Additionally, the court had and reviewed a presentence

report; thus, we “presume[] that the court [was] aware of all appropriate

sentencing factors and considerations….” Commonwealth v. Bullock, 170

A.3d 1109, 1126 (Pa. Super. 2017) (citation omitted); see also N.T.

Sentencing, 9/20/23, at 4. The court also “heard information related to

Appellant’s employment, his mental health history, his history of acquaintance

with the victim, and it considered Appellant’s statements such as his intent to

‘make amends.’” TCO at 6 (quoting N.T. Sentencing at 5-7). “Ultimately, [the

c]ourt determined that the gravity of Appellant’s actions, including that he

was wielding a firearm, warranted a period of incarceration for Appellant to

consider opportunities to ‘choose a different path and make much better

decisions and get the help that [he] need[ed].’” Id. (quoting N.T. Sentencing

at 8). Having reviewed the record, we agree with the court that “there is no

indication of [an] abuse of discretion in the sentence imposed here.” Id. at

7. Therefore, Attorney Natale is correct that it would be frivolous to raise this

claim on appeal.

Finally, Appellant seeks to argue that he received more than one

sentence for the same criminal act. To the extent that Appellant’s assertion

implicates a question of whether his offenses merged for sentencing purposes,

such a claim constitutes a non-waivable challenge to the legality of his

sentence. See Commonwealth v. Williams, 871 A.2d 254, 262 (Pa. Super.

2005) (citation omitted). However, it is clear that Appellant’s claim is

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frivolous. The record confirms that Appellant’s sentence of incarceration was

imposed only for his conviction of burglary, and his “guilty plea was accepted

without further penalty” at the remaining counts. TCO at 7. Accordingly,

“[t]here is no indication that Appellant was sentenced more than once for the

same criminal act.” Id.

In sum, we conclude that the three issues Appellant wishes to raise on

appeal are frivolous. Additionally, our independent review of the record

reveals no other, non-frivolous claims that Appellant could assert herein.

Thus, we affirm his judgment of sentence and grant Attorney Natale’s petition

to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

DATE: 02/27/2025

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