Com. v. Richardson, K.

• Court: Superior Court of Pennsylvania
• Decided: February 11, 2025
• Docket: 437 WDA 2024
• Status: Unpublished

Opinion

J-S03028-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEITH CURTIS RICHARDSON : : Appellant : No. 437 WDA 2024

Appeal from the Judgment of Sentence Entered March 5, 2024 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001082-2023

BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.

MEMORANDUM BY SULLIVAN, J.: FILED: February 11, 2025

Keith Richardson (“Richardson”) appeals from the judgment of sentence

imposed following his jury convictions for simple assault, harassment, and

criminal mischief.1 Additionally, Richardson’s counsel (“Counsel”) has filed a

petition to withdraw and an accompanying brief 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.

The relevant factual and procedural history of this case is as follows. In

January 2023, Richardson was living with Mirela Vila (“the victim”) when she

received notification from a monitoring service someone had fallen in her

home. The victim returned to the home and found the refrigerator, windows,

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1 See 18 Pa.C.S.A. §§ 2701(a)(1), 2709(a)(1), 3304(a)(5). J-S03028-25

TV, and computer broken and other, new, damage. When the victim told

Richardson he was no longer welcome in the home, Richardson banged her

head against the wall. A responding police officer found scratch marks on the

victim’s face and neck. Richardson testified at trial and admitted destroying

items in the home but denied hitting the victim.

At trial, a jury convicted Richardson of the above offenses. The trial

court imposed a mitigated guidelines range sentence of eleven and one-half

to twenty-three months of incarceration followed by eleven months of

probation.

Richardson timely appealed. Counsel was appointed but filed a petition

to withdraw and a brief pursuant to Anders/Santiago.

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. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.

2010). Pursuant to Anders, when counsel believes an appeal is frivolous and

wishes to withdraw from representation, he or she 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 points he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(internal citation omitted). In Santiago, our Supreme Court addressed the

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second requirement of Anders, i.e., the contents of an Anders brief, and

required that the brief:

(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.

Santiago, 978 A.2d at 361. “Once counsel has satisfied the [Anders]

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

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

appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228 (internal

citation omitted).

Here, Counsel states in a letter to Richardson attached to her petition

to withdraw she has reviewed the record and determined that no non-frivolous

issues exist.2 Counsel has further averred that she mailed Richardson a copy

of her petition to withdraw along with her Anders brief and a letter explaining

Richardson’s right to retain new counsel, file a pro se brief or response in this

Court, or raise any additional matters before this Court himself. See Petition

2 The letter was not attached to the copy in the certified record of counsel’s application to withdraw; at this Court’s direction counsel subsequently filed it with this Court. See Response to Order, 11/15/24.

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for Leave to Withdraw as Counsel, 10/14/24; Response to Order, 11/15/24.

Counsel’s brief includes a summary of the factual and procedural history of

the case, identifies the issue that could arguably support Richardson’s appeal,

and explains her reasons for concluding the appeal is frivolous, with analysis

of the pertinent facts and applicable law. See Anders Brief at 9-13. Because

Counsel has complied with Anders and Santiago, we conduct an independent

review to determine whether this appeal is wholly frivolous. See

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018).

Counsel identifies the following issue for our review:

Whether [Richardson’s] sentence is manifestly excessive, clearly unreasonable, and inconsistent with the objectives of the Sentencing Code?

See Anders Brief at 3.

Richardson’s claim implicates the discretionary aspects of sentencing.

It is well-settled that “[c]hallenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right.” Commonwealth v. Moury,

992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a

discretionary sentencing issue,

[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 Pa.R.Crim.P. [720]; (3) whether appellant’s brief 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).

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Id. (citation omitted). Further, a substantial question exists only when the

appellant advances a colorable argument the court’s actions were inconsistent

with a specific provision of the Sentencing Code or contrary to the fundamental

norms which underlie the sentencing process. See id.

Richardson’s concise statement does not advance a colorable claim his

sentence was inconsistent with a specific Sentencing Code provision or that it

was contrary to fundamental sentencing norms. His assertions are entirely

generic. Accordingly, he fails to establish our jurisdiction to review his claim.

See id. Moreover, Richardson waived any discretionary sentencing challenge

because he failed to object to his sentence at the revocation hearing and,

additionally, filed no post-sentence motions challenging the discretionary

aspects of his sentence. See Commonwealth v. Watson, 835 A.2d 786,

791 (Pa. Super. 2003).

Even if properly preserved, Richardson’s discretionary sentencing issue

would be wholly frivolous. Our standard of review is as follows:

Sentencing 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. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation

omitted). When the sentencing court applies the sentencing guidelines, this

Court may only vacate if the case involves circumstances where the

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application of the guidelines would be clearly unreasonable. See 42 Pa.C.S.A.

§ 9781(c)(2); Commonwealth v. McCarthy, 180 A.3d 368, 380 (Pa. Super.

2018).

Our legislature has determined that “the sentence imposed should call

for total confinement that is consistent with . . . the protection of the public,

the gravity of the offense as it relates to the impact on the life of the victim

and on the community, and the rehabilitative needs of the defendant.” 42

Pa.C.S.A. § 9721(b). Moreover, “[i]n every case in which the court imposes

a sentence for a felony or misdemeanor . . . the court shall make as a part of

the record[] and disclose in open court at the time of sentencing, a statement

of the reason or reasons for the sentence imposed.” Id. The trial court,

however, need not undertake a lengthy discourse for its reasons for imposing

a sentence. See Commonwealth v. Conklin, 275 A.3d 1087, 1098 (Pa.

Super. 2022) (citation omitted).

Here, Richardson argues he had past drug and mental health issues, his

prior convictions were relatively old, and the Commonwealth focused unduly

on his lack of remorse. See Anders Brief at 10-11. As counsel notes,

however, Richardson received a mitigated range sentence and the

sentencing court considered all relevant sentencing factors including

Richardson’s prior record. See id. at 12. Additionally, a sentencing court may

properly consider a defendant’s lack of remorse. See Commonwealth v.

Summers, 245 A.3d 686, 695-96 (Pa. Super. 2021). Accordingly, any

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challenge to Richardson’s mitigated range sentence would be wholly frivolous.

See McCarthy, 180 A.3d at 380.

Based on our review of the foregoing, we conclude that even if

Richardson’s challenge to the discretionary aspects of his sentence were

preserved, the trial court did not abuse its discretion in imposing a mitigated

guideline-range sentence. Thus, we conclude the issues identified in this

appeal are frivolous, and our independent review of the record reveals no

additional issues of arguable merit. Accordingly, we grant Counsel’s petition

to withdraw and affirm the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

2/11/2025

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