Com. v. Parker, M.

• Court: Superior Court of Pennsylvania
• Decided: January 27, 2017
• Docket: 589 MDA 2016
• Status: Unpublished

Opinion

J-S87029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MICHAEL PARKER

Appellant No. 589 MDA 2016

Appeal from the Judgment of Sentence Dated March 10, 2016 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002383-2013

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED JANUARY 27, 2017

Appellant, Michael Parker, appeals from the judgment of sentence of

5-10 years’ incarceration, which was imposed following a bench trial and

convictions for burglary; criminal attempt to possess a controlled substance

with intent to deliver (“PWID”); resisting arrest; flight to avoid

apprehension; and reckless driving.1 With this appeal, Appellant’s counsel

has filed a petition to withdraw and an Anders2 brief. In response,

Appellant filed a pro se application for appointment of new counsel. After

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 3502(a)(1), 901(a), 5104, and 5126(a) and 75 Pa.C.S. § 3736(a), respectively. As noted below, Appellant’s current sentence was imposed after this Court remanded to the trial court for resentencing. 2 Anders v. California, 386 U.S. 738 (1967). J-S87029-16

careful review, we affirm the judgment of sentence, grant counsel’s petition

to withdraw, and deny Appellant’s application for appointment of substitute

counsel.

The relevant procedural history was recounted in our decision in an

earlier appeal in this case:

[T]he trial court sentenced [Appellant] on January 23, 2015. At docket number 2383–2013, [Appellant] was sentenced to an aggregate term of five to ten years’ imprisonment for his convictions of burglary, criminal attempt—PWID, resisting arrest, flight to avoid apprehension, and reckless driving, which included a sentence of six to twelve months’ imprisonment on the flight to avoid apprehension count and a concurrent five to ten years’ imprisonment on the burglary count. . . .

[Appellant] filed a post-sentence motion on February 2, 2015, which the trial court denied on February 10, 2015. On February 17, 2015, [Appellant] . . . filed a notice of appeal . . .

[Appellant] filed a petition to proceed pro se on direct appeal . . ., which the trial court granted on March 2, 2015. . . . .

On April 17, 2015, the trial court appointed [Appellant] new counsel . . . .

Commonwealth v. Parker, No. 309 MDA 2015, at 8-9 (Pa. Super., Dec.

14, 2015) (unpublished memorandum).

In his direct appeal to this Court, Appellant challenged “the legality of

his conviction of flight to avoid apprehension, 18 Pa.C.S. § 5126(a).”

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Parker, No. 309 MDA 2015, at 1-2.3 On December 14, 2015, this Court,

while rejecting Appellant’s substantive arguments, remanded to the trial

court because it “detected a legal error in his sentence” that required

correction. Id. at 13. The Court explained: “[A]lthough we do not disturb

the underlying conviction, we vacate the sentence imposed at docket

number 2383-2013 for flight to avoid apprehension because it merges with

burglary for sentencing purposes.” Id. at 14.

On remand, the trial court re-sentenced Appellant on March 10, 2016.

On April 7, 2016, Appellant timely filed the instant appeal. On May 5, 2016,

appellate counsel filed a Pa.R.A.P. 1925(c)(4) statement of his intent to file

an Anders brief, and thereafter he filed a petition to withdraw and an

Anders brief with this Court. On August 22, 2016, Appellant filed a one-

page, handwritten pro se response to the Anders brief in which he

challenges the conclusions of his appointed counsel and requests the

appointment of new counsel. On August 26, 2016, the trial court entered a

Statement in Lieu of Memorandum Opinion, stating that “it is our practice to

refrain from filing a 1925(a) Opinion where appellate counsel has filed a

Statement of Intent to file an Anders brief.” On October 24, 2016,

3 Appellant also claimed that his conviction on a related charge of attempted robbery, which had been tried under a separate docket number, was against the weight of the evidence. Parker, at 9.

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Appellant filed with this Court a pro se application requesting a remand for

appointment of new appellate counsel.

“When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). An Anders brief shall comply with the

requirements set forth by the Supreme Court of Pennsylvania in

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009):

[W]e hold that in the Anders brief that accompanies court- appointed counsel’s petition to withdraw, 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 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.

Id. Counsel seeking to withdraw on direct appeal must also meet the

following obligations to his or her client:

Counsel must also 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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted). “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

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

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

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,

“this Court must conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).

In this appeal, appellate counsel’s July 20, 2016 correspondence to

Appellant provided a copy of the Anders Brief to Appellant and advised

Appellant of his right either to retain new counsel or to proceed pro se on

appeal. Although that letter did not tell Appellant that he or his newly

retained counsel may raise any points he deems worthy of the court’s

attention, see Orellana, 86 A.3d at 880, it attached counsel’s petition to

withdraw as counsel, and the petition did contain that information. Pet. to

Withdraw as Counsel, dated July 20, 2016, at ¶ 9. Appellate counsel has

thus met his obligations to his client under Orellana, 86 A.3d at 880.

Further, the Anders Brief complies with prevailing law, see

Commonwealth v. Santiago, 978 A.2d at 361, by containing a procedural

summary of the case, with a reference to the record. See Anders Brief at

7. It also provides a factual summary, albeit a bare-bones one, with

references to the record. See id. at 11. The brief advances relevant

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portions of the record that arguably support Appellant’s claims on appeal,

see Commonwealth v. Santiago, 978 A.2d at 361, and sets forth the

standard for reviewing the sufficiency of the evidence, with references to the

record. See Anders Brief at 9-11. Finally, the brief provides reasons why

Appellant’s challenge to the sufficiency of the evidence is “without arguable

merit” and states that the record “is devoid of meritorious issues for appeal.”

Anders Brief at 11. Appellate counsel’s Anders brief therefore complies

with all requirements set forth in Commonwealth v. Santiago. As a

result, we can conduct an independent review of the merits of the underlying

issue to ascertain whether the appeal is indeed wholly frivolous. See

Daniels, 999 A.2d at 593; Goodwin, 928 A.2d at 291.

Appellant presents a single issue for our review:

WAS INSUFFICIENT EVIDENCE PRESENTED TO SUSTAIN THE VERDICT?

Anders Brief at 6. This issue is not properly before us. Appellant was

required to raise this issue in his first appeal to this Court and may not raise

this issue now.

An appellant is required to include in an appeal from the judgment of

sentence all issues that he wishes to raise, and he waives any issues that he

does not present at that time. “Because Appellant had the benefit of a direct

appeal, he is barred from raising any issues other than a challenge to the

sentence imposed on remand.” Commonwealth v. Williams, ____ A.3d

___, 2016 PA Super 262, at *4 (Pa. Super., Nov. 23, 2016). In his first

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appeal to this Court, the only issue raised by Appellant regarding the

charges at issue here was that Commonwealth v. Benedetto, 462 A.2d

830, 832 (Pa. Super. 1983), prohibited his conviction of both burglary and

flight to avoid apprehension because Appellant committed the burglary as

part of his effort to avoid apprehension. We rejected that argument. See

Parker, at 12-13. We remanded the case only to correct the fact that

Appellant could not be sentenced for both crimes because they merged

under the Crimes Code, 18 Pa. C.S. § 3502(d). See Parker, at 13-14. The

present appeal is from Appellant’s resentencing pursuant to our remand.

But that remand did not give Appellant license to raise issues that he did not

present on his first appeal and that he waived by failing to do so.

Appellant’s opportunity to raise a sufficiency issue evaporated when he did

not raise that issue on his direct appeal, and he may not raise a sufficiency

issue now. Williams, 2016 PA Super 262, at *4.

The only issue before the trial court on remand was the proper

resentencing of Appellant to correct the merger error identified by this

Court. See Pa.R.A.P. 2591; Commonwealth v. Sepulveda, 144 A.3d

1270, 1279-80 & n.19 (Pa. 2016). As Appellant now raises no issue

regarding that resentencing, he presents no basis for appellate relief. We

have reviewed the certified record consistent with Flowers, 113 A.3d at

1250, and have discerned no additional arguably meritorious issues.

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Accordingly, we grant appellate counsel’s petition to withdraw and affirm the

trial court’s judgment of sentence.

We now turn to Appellant’s request that we remand for appointment of

substitute appellate counsel. There is no question that an indigent prisoner

is entitled to free legal counsel to assist him on direct appeal. See U.S.

Const. amend. VI; Pa. Const. art. 1, § 9. But our review of the case law

convinces us that Appellant is not entitled to substitute counsel at this point

in his case.

We note that “the right to appointed counsel does not include the right

to counsel of the defendant’s choice.” Commonwealth v. Albrecht, 720

A.2d 693, 709 (Pa. 1998); see also Commonwealth v. Philistin, 53 A.3d

1, 16 (Pa. 2012). In addition, our Supreme Court has concluded that once a

reviewing court is satisfied with counsel’s assessment of the appeal as

wholly frivolous, counsel has fully discharged his or her responsibility to an

appellant and can do no more. Commonwealth v. McClendon, 434 A.2d

1185, 1188 (Pa. 1981); see Commonwealth v. Santiago, 978 A.2d at

359-61. Because this Court has agreed with appellate counsel’s conclusion

that Appellant’s appeal is wholly frivolous, appellate counsel has fully

discharged his duty and responsibility to Appellant, and Appellant is not

entitled to appointment of substitute appellate counsel at public expense to

redo the appeal. See id.; Santiago v. Commonwealth, Pa. Bd. of Prob.

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& Parole, 506 A.2d 517, 520 (Pa. Cmwlth. 1986). Accordingly, we deny

Appellant’s motion.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted. Application for substitution of appointed counsel denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/27/2017

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