Com. v. Muhammad, M.

• Court: Superior Court of Pennsylvania
• Decided: July 19, 2018
• Docket: 2351 EDA 2017
• Status: Unpublished

Opinion

J-S22041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MUAAWIYA MUHAMMAD : : Appellant : No. 2351 EDA 2017

Appeal from the Judgment of Sentence June 1, 2017 in the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0000918-2012

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED JULY 19, 2018

Appellant, Muaawiya Muhammad, appeals from the judgment of

sentence imposed after revocation of his probation following his guilty plea to

probation violations. Appointed counsel has filed a petition for leave to

withdraw as counsel 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 Appellant’s judgment of sentence.

We take the following facts from the trial court’s November 21, 2017

opinion, and our independent review of the certified record.

On September 25, 2011, [Appellant] was arrested by a Chester, [Pennsylvania] City police officer and charged with possessing firearms without a license, possession of marijuana, criminal trespass and various other offenses. On March 27, 2012, he entered into a negotiated guilty plea pursuant to which he [pleaded] guilty to carrying firearms without a license (18 Pa.C.S.[A.] § 6106(a)(1)) and was sentenced to a period of

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S22041-18

incarceration of [not less than eighteen nor more than thirty-six] months followed by three years of probation. The remaining charges were dismissed.

On June [14], 2015, while on probation, [Appellant] was arrested in Chester, [Pennsylvania] and charged with possession of firearms and related offenses. On November 3, 2016, he was found guilty [of persons not to possess firearms and firearms not to be carried without a license]. ([See] Docket No. CP-23-CR- [0004256]-2015)[.] On April [12], 2017, [the trial court] sentenced him to a term of incarceration of [not less than sixty nor more than 120 months for persons not to possess firearms, and a concurrent term of not less than forty-two nor more than eighty-four months for firearms not to be carried without a license]. [Appellant] filed an appeal, which is pending before the Superior Court at Docket No. [1647] EDA 2017.

On June 1, 2017, [the trial court] conducted a Gagnon II[1] hearing, at which it found [Appellant] in violation of the terms of his probation. It adopted the Commonwealth’s recommendation and sentenced [Appellant] to a term of incarceration of [not less than twelve nor more than twenty-four] months in a state correctional institution, consecutive to the sentence imposed at Docket No. CP-23-CR-[0004256]-2015.

On June 12, 2017, [Appellant’s] counsel filed a motion for reconsideration of sentence. On June [23], 2017, [the trial court] scheduled a hearing for the motion for July 5, 2017. On [July] 3, 2017, before the hearing could be held, counsel filed a [n]otice of [a]ppeal.

(Trial Court Opinion, 11/21/17, at 1-2). On November 3, 2017, counsel filed

a statement of intent to file a motion to withdraw and Anders brief. See

Pa.R.A.P. 1925(c)(4). The trial court entered its opinion on November 21,

2017. See Pa.R.A.P. 1925(a). On January 16, 2018, counsel filed a motion

to withdraw and an Anders brief on the basis that the appeal is wholly

frivolous. Appellant has not responded. ____________________________________________

1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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The standard of review for an Anders brief is well-settled.

Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous must:

(1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) file a brief referring to anything that arguably might support the appeal but which does not resemble a “no-merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the court’s attention.

[T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations

and quotation marks omitted). Further, our Supreme Court ruled in

Santiago, supra, that Anders briefs must contain “a discussion of counsel’s

reasons for believing that the client’s appeal is frivolous[.]” Santiago, supra

at 360.

Here, counsel’s Anders brief and motion to withdraw substantially

comply with the applicable technical requirements and demonstrate that he

“has made a conscientious examination of the record in this case and has

determined that an appeal would be frivolous.” Lilley, supra at 997. The

record establishes that counsel served Appellant with a copy of the Anders

brief and motion to withdraw, and a letter of notice, which advised Appellant

of his right to retain new counsel or to proceed pro se and raise additional

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issues to this Court. (See Motion to Withdraw as Counsel, 1/16/18, Exhibit

A). Further, the motion and brief cite “to anything that arguably might support

the appeal[.]” Lilley, supra at 997 (citation omitted); (see also Anders

Brief, at 5-9). As noted by our Supreme Court in Santiago, the fact that

some of counsel’s statements arguably support the frivolity of the appeal does

not violate the requirements of Anders. See Santiago, supra at 360-61.

Accordingly, we conclude that counsel complied with Anders’ technical

requirements. See Lilley, supra at 997.

Having concluded that counsel’s petition and brief substantially comply

with the technical Anders requirements, we must “conduct [our] own review

of the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 (citation

and internal quotation marks omitted).

The Anders brief raises one question2 for our review: “[Whether] the

sentence imposed at the Gagnon II hearing on June 1, 2017, is manifestly

excessive in that it was ordered to be served consecutively to the sentence

imposed at [Docket] No. 4256-201[5,]” because “the [c]ourt, having

____________________________________________

2 The Anders brief fails to conform to the Pennsylvania Rules of Appellate Procedure, because it does not set forth a statement of the questions presented. See Pa.R.A.P. 2116(a). However, because the argument section identifies the specific issue raised, “Appellant’s failure to comply with Rule 2116(a) does not impede our ability to review the issue, and, accordingly, we will address the merits of its appeal.” Commonwealth v. Long, 786 A.2d 237, 239 n.3 (Pa. Super. 2001), aff'd, 819 A.2d 544 (Pa. 2003).

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previously sentenced Appellant, was aware that Appellant has mental health

issues of a cognitive nature and that Appellant’s family supports him[, and]

disregarded these critical factors[?]” (Anders Brief, at 5) (emphasis omitted).

The issue raised challenges the discretionary aspects of Appellant’s

sentences.

[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence. Rather, an [a]ppeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code. . . .

In addition, issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived. Furthermore, a defendant is required to preserve the issue in a court-ordered Pa.R.A.P.1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)

(citations and quotation marks omitted).

Here, Appellant raised his challenge to the discretionary aspects of his

sentence in his post-sentence motion. He also included a Pa.R.A.P. 2119(f)

statement in his Anders brief. (See Anders Brief, at 5). Moreover,

Appellant’s claim that the trial court failed to consider all relevant factors in

imposing sentence, including the support of his family and his mental health

condition, raises a substantial question for our review. See Cartrette, supra

at 1042-43 (reasoning that failure to consider sentencing factors presents

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substantial question). Therefore, we will consider the merits of Appellant’s

claim.

Our standard of review of an appeal from a sentence imposed following

the revocation of probation is well-settled: “Revocation of a probation

sentence is a matter committed to the sound discretion of the trial court and

that court’s decision will not be disturbed on appeal in the absence of an error

of law or an abuse of discretion.” Commonwealth v. Colon, 102 A.3d 1033,

1041 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015) (citation and

internal quotation marks omitted). Additionally, “upon revocation [of

probation], the sentencing alternatives available to the court shall be the same

as the alternatives available at the time of initial sentencing. . . . [T]he trial

court is limited only by the maximum sentence that it could have imposed

originally at the time of the probationary sentence.” Commonwealth v.

Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (citations and internal quotation

marks omitted).

Here, the record reveals that during his Gagnon II hearing on June 1,

2017, the court determined that Appellant violated his probation by being

convicted of another offense. (See N.T. Hearing, 6/01/17, at 8, 10). During

the hearing the court acknowledged both that Appellant’s family members

cared about him, and that he suffered from cognitive difficulties. (See id. at

8-10). Moreover, the sentence imposed was less than the maximum sentence

that could have been imposed originally at Appellant’s initial sentencing. See

Infante, supra at 365.

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Therefore, we discern no error of law or abuse of discretion. See Colon,

supra at 1041; Infante, supra at 365. Furthermore, after our independent

review of the record as required by Anders and Santiago, we conclude that

no non-frivolous issues exist.

Motion to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/19/18

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