Com. v. McAllister, P.

• Court: Superior Court of Pennsylvania
• Decided: July 6, 2016
• Docket: 1613 MDA 2015
• Status: Unpublished

Opinion

J-S47019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

PHYLLIS MCALLISTER

Appellant No. 1613 MDA 2015

Appeal from the Judgment of Sentence August 11, 2015 in the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003155-2014

BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2016

Appellant Phyllis McAllister (“Appellant”) appeals from the August 11,

2015 judgment of sentence entered in the Luzerne County Court of Common

Pleas following her guilty plea convictions for criminal conspiracy to deliver a

controlled substance1 and possession of a controlled substance with intent to

deliver (“PWID”).2 Appellant’s counsel has filed an Anders3 brief, together

with a petition to withdraw as counsel. We affirm the judgment of sentence

and grant counsel’s petition to withdraw.

____________________________________________

1 18 Pa.C.S. § 903. 2 35 P.S. § 780-113(a)(30). 3 Anders v. California, 386 U.S. 738 (1967). J-S47019-16

On May 22, 2015, Appellant pleaded guilty to the aforementioned

charges. On August 11, 2015, the trial court sentenced Appellant to 18 to

36 months’ incarceration on the conspiracy conviction and a concurrent term

of 18 to 36 months’ incarceration on the PWID conviction. Appellant lodged

no objections at sentencing, and did not file post-sentence motions.

Appellant filed a notice of appeal on September 10, 2015, and a

Pa.R.A.P. 1925(b) statement on October 13, 2015. The trial court filed its

Pa.R.A.P. 1925(a) opinion on November 6, 2015.4

As previously noted, Appellant’s counsel has filed an application

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.5 Before

addressing the merits of Appellant’s underlying issue presented, we must

first pass on counsel’s petition to withdraw. 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 ____________________________________________

4 The Commonwealth did not file a brief with this Court. 5 978 A.2d 349 (Pa.2009).

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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. Counsel must also provide the appellant with a

copy of the Anders brief, together with a letter that advises the appellant of

his or her 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).

Substantial compliance with these requirements is sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After

establishing that the antecedent requirements have been met, this Court

must then make an independent evaluation of the record to determine

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm,

903 A.2d 1244, 1246 (Pa.Super.2006).

Instantly, counsel contemporaneously filed a petition to withdraw as

counsel with the Anders brief. The petition states counsel’s determination

that Appellant’s appeal is wholly frivolous and that no meritorious issues

exist. See Petition to Withdraw As Counsel, ¶ 3. The petition further

explains that counsel notified Appellant of the withdrawal request and sent

Appellant a letter explaining her right to proceed pro se or with new,

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privately-retained counsel.6 See id. at ¶ 4; see also Letter to Appellant,

March 17, 2016. In the Anders brief, counsel provides a summary of the

facts and procedural history of the case with citations to the record, refers to

evidence of record that might arguably support the issue raised on appeal,

provides citations to relevant case law, and states his conclusion that the

appeal is frivolous and his reasons therefor. See Anders Brief, pp. 4-9.

Accordingly, counsel has substantially complied with the requirements of

Anders and Santiago.

As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue of

arguable merit raised in the Anders brief:

1. Whether the trial court abused its discretion in sentencing the Appellant[?]

Anders Brief, p. 1.

This claim raises a challenge to the discretionary aspects of Appellant’s

sentence. “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.” Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

6 The letter further makes clear that counsel supplied Appellant with a copy of the Anders brief. See Letter to Appellant, January 29, 2016.

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An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: (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.

Allen, 24 A.3d at 1064.

Here, Appellant filed a timely notice of appeal. Further, Appellant’s

brief includes a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).7 See Appellant’s Brief, p. 3.

However, Appellant did not preserve his issue by lodging an objection at

sentencing or by filing a post-sentence motion for reconsideration of

sentence. Therefore, because she did not properly preserve her

discretionary aspects of sentencing claim, Appellant waived this claim for

review.

7 Appellant’s Rule 2119(f) statement states, in its entirety:

The trial court refusing the Appellant entry into the Intermediate Punishment Program is a substantial question requiring a discretionary review. 42 Pa.C.S.[] § 9781(b); Pa.R.A.P. 2119(f).

Appellant’s Brief, p. 3. Although this Rule 2119(f) statement is meager and nearing insufficiency, the Commonwealth did not object. Therefore, we may overlook the statement’s deficiencies. See Commonwealth v. Gould, 912 A.2d 869, 872 (quoting Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.Super.2005)) (“[i]n the absence of any objection from the Commonwealth, we are empowered to review claims that otherwise fail to comply with Rule 2119(f)”) (internal brackets omitted).

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Further, even had Appellant properly preserved her issue, it does not

present a substantial question for review. “A substantial question will be

found where the defendant advances a colorable argument that the sentence

imposed is either inconsistent with a specific provision of the [sentencing]

code or is contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa.Super.2013)

(internal citations omitted); see also 42 Pa.C.S. § 9781(b). “We determine

whether a particular case raises a substantial question on a case-by-case

basis.” Id. A bald or generic assertion that a sentence is excessive does

not, by itself, raise a substantial question justifying this Court’s review of the

merits of the underlying claim. Id.; see also Commonwealth v. Harvard,

64 A.3d 690, 701 (Pa.Super.2013). Further, “where a sentence is within the

standard range of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code.” Commonwealth v. Moury, 992

A.2d 162, 171 (Pa.Super.2010).

In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial

court abused its discretion by refusing her request to serve her sentence on

intermediate punishment, instead of total confinement. See Appellant’s

Brief, p. 3. Appellant does not articulate how this particular argument either

violates the Sentencing Code or represents a deviation from the fundamental

norms of sentencing. Hence, Appellant has not presented a substantial

question for review.

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Further, even had Appellant stated a substantial question for review,

we would affirm on the merits. We review discretionary aspects of sentence

claims under the following standard of review:

[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)

(citations omitted).

Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion. Instead, the trial court imposed a sentence that

was consistent with the protection of the public, took into account the

gravity of the offense as it related to the impact on the life of the victim and

on the community, and considered the Appellant’s rehabilitative needs, as

required by 42 Pa.C.S. § 9721(b).

In imposing sentence, the trial court considered the sentencing

guidelines, the pre-sentence investigation report,8 the arguments of counsel,

and the testimony of Appellant. N.T. 8/11/2015, pp. 2-7. The trial court

8 Where a sentencing court had the benefit of a pre-sentence investigation report, we assume the sentencing court was aware of relevant information contained therein and weighed that information along with any mitigating factors. Moury, 992 A.2d at 171.

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then sentenced Appellant to a standard range sentence. Id. at 5-7. We find

no abuse of discretion in the trial court’s sentencing.

Given the foregoing, Appellant has not properly preserved his claim for

review by this Court. Further, she has not raised a substantial question

regarding the appropriateness of her sentence. Finally, even if she had

raised a substantial question for review, her claim would fail on the merits.

Accordingly, we agree with counsel that Appellant’s claim is wholly frivolous.

Moreover, our independent review of the record has revealed no other

preserved issues of arguable merit. Accordingly, we affirm the judgment of

sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/6/2016

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