Com. v. Newman, B.

• Court: Superior Court of Pennsylvania
• Decided: September 16, 2014
• Docket: 1766 MDA 2013
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BARBARA L. NEWMAN, : : Appellant : No. 1766 MDA 2013

Appeal from the Judgment of Sentence entered on September 5, 2013 in the Court of Common Pleas of Lycoming County, Criminal Division, No. CP-41-CR-0001976-2012

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014

sentence imposed following the revocation of her probation. Kathryn E.

Withdraw as Counsel and an accompanying brief pursuant to Anders v.

California

The trial court has set forth the relevant history as follows:

Under Information 1976-2012, [Newman] was charged with dr incapable of safely driving and then refusing a chemical test of her blood, driving when her operating privilege was suspended as a result of a previous DUI, and several other summary offenses as a result of an incident on August 8, 2012, where she

portion of Route 864 that was under construction. At the time [that Newman] committed these offenses, she was under probation supervision for simple assault, a misdemeanor of the J-S51044-14

second degree, and trespass, a misdemeanor of the third degree[1], in case 1261-2011.

[Newman] failed to appear for a status conference and a bench warrant was issued for her arrest. [Newman] fled to Missouri, but was arrested and extradited back to Pennsylvania.

On August 8, 2013, [Newman] entered a no contest plea to DUI- incapable (refusal) and [driving while operating privilege is -DUI related. On September 5, 2013, the court sentenced [Newman] to pay a $1,500 fine and to serve six months under the Intermediate Punishment Program with the first 90 days to be served at the pre-release center for DUI. In addition, the court sentenced [Newman] to 60 days of incarceration and a $500 fine for DUS-DUI related.

September 5, 2013. The court found that [Newman] violated her probation by absconding from supervision and committing a

and sentenced her to a term of 3 to 6 months of incarceration to be served consecutively to her sentence in case 1976-2012.

Trial Court Opinion, 9/5/13, at 1-2 (footnote added).

counsel, Bellfy, has filed a brief pursuant to Anders that raises the following

issuing a sentence that is manifestly excessive or in excess of the plea

led a separate Petition to

withdraw as counsel with this Court on April 28, 2014. Newman filed neither

a pro se brief, nor retained alternate counsel for this appeal.

Anders brief, this Court

may not review the merits of the underlying issues without first passing on

1 18 Pa.C.S.A. §§ 2701(a), 3503(b)(1)(i)

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Commonwealth v. Edwards, 906 A.2d 1225,

1227 (Pa. Super. 2006) (citation, brackets, and quotation marks omitted).

Pursuant to Anders, when counsel believes an appeal is frivolous and

wishes to withdraw representation, he must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous;

(2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no- merit letter; and

(3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional point attention.

Commonwealth v. Curry, 931 A.2d 700, 701 (Pa. Super. 2007) (citation

omitted). In Commonwealth v. Santiago, 978 A.3d 349 (Pa. 2009), our

Supreme Court addressed the second requirement of Anders, i.e., the

contents of an Anders brief, and set forth the following requirements for

Anders briefs:

(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) and

(4) 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.

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Santiago Anders]

ment as to whether

Edwards, 906 A.2d at 1228

(citation omitted).

Here, we conclude that Bellfy has substantially complied with each of

the requirements of Anders. See Commonwealth v. Wrecks, 934 A.2d

1287, 1290 (Pa. Super. 2007) (stating that counsel needs to substantially

comply with the requirements of Anders). Bellfy indicates that she has

conscientiously examined the record and determined that an appeal would

be frivolous. The record contains a copy of the letter that Bellfy sent to

Newman, advising her of her rights to proceed pro se or retain alternate

permission to withdraw. Bellfy has complied with the procedural

requirements for withdrawing from representation. Therefore, we shall

proceed to an independent evaluation of the record to determine whether

this appeal is wholly frivolous.

Here, Newman challenges the discretionary aspects of her sentence.

ionary aspects of sentencing do not entitle an

Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary

sentencing issue,

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[this Court conducts] a four part analysis to determine: (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 ef has a fatal defect, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by- Commonwealth v.

Titus

to establish a substantial question, the appellant must show actions by the

sentencing court inconsistent with the Sentencing Code or contrary to the

Id.

Here, Newman filed a timely Notice of Appeal, but did not preserve the

issue at sentencing or in a post-sentence motion. Nevertheless, because we

are required to undertake an independent review of the record, we will

Newman presents, in her Rule 2119(f) statement, only a bald

allegation of excessiveness and does not raise any challenge as to a violation

of the Sentencing Code or a particular fundamental norm underlying the

sentencing process. See Brief for Appelant at 7; see also Commonwealth

v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (stating we cannot

look beyond the statement of questions presented and 2119(f) concise

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statement to determine whether a substantial question exists). Therefore,

for our review. See Titus, 816 A.2d at 255-56 (stating that bald claim of

excessiveness does not raise a substantial question). Moreover, our

independent examination of the record has convinced us that there are no

other sentencing claims, not advanced by Bellfy, that would raise a

substan See id. at

256.2

Based on our independent review of the record, we conclude that this

Petition to Withdraw as Counsel granted; judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/16/2014

2 We also note that at the sentencing hearing, the court noted that it believed that a three to six month sentence was lenient in light of the violations Newman had committed while on supervision. N.T., 9/5/13, at 12.

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