Com. v. Robinson, S.

• Court: Superior Court of Pennsylvania
• Decided: June 1, 2021
• Docket: 977 WDA 2020
• Status: Unpublished

Opinion

J-S15010-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVELAND EDWARD ROBINSON, : JR. : : No. 977 WDA 2020 Appellant

Appeal from the Judgment of Sentence Entered January 22, 2020 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001537-2019

BEFORE: LAZARUS, J., MURRAY, J. and COLINS, J.

MEMORANDUM BY LAZARUS, J.: FILED: JUNE 1, 2021

Steveland Edward Robinson, Jr., appeals, nunc pro tunc, from the

judgment of sentence, imposed in the Court of Common Pleas of Erie County,

after he entered a plea of guilty but mentally ill to one count of criminal

attempt—murder.1 Counsel has filed an Anders2 brief and a petition to

withdraw from her representation of Robinson. Upon review, we grant

counsel’s petition to withdraw and affirm Robinson’s judgment of sentence.

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1 18 Pa.C.S.A. § 901(a).

2 Anders v. California, 386 U.S. 738 (1967). See also Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). J-S15010-21

On November 8, 2019, Robinson entered an open plea of guilty but

mentally ill to attempted murder.3 On January 22, 2020, the trial court

imposed a standard-range sentence of 10 to 20 years’ imprisonment.

Robinson did not file post-sentence motions or an appeal. On motion of

counsel, Robinson’s appellate rights were reinstated, nunc pro tunc, on August

18, 2020. Robinson filed a notice of appeal, nunc pro tunc, on September 15,

2020. On October 13, 2020, counsel filed a statement of intent to file an

Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Robinson raises the following

claim for our review: “Whether [Robinson’s] sentence is manifestly excessive,

clearly unreasonable[,] and inconsistent with the objectives of the Sentencing

Code?” Brief of Appellant, at 3.

Prior to reviewing Robinson’s claim, we must determine if counsel has

complied with the procedural requirements for withdrawal. In order to

withdraw pursuant to Anders, counsel must: (1) petition the Court for leave

to withdraw, certifying that after a thorough review of the record, counsel has

concluded the issues to be raised are wholly frivolous; (2) file a brief referring

to anything in the record that might arguably support an appeal; and (3)

furnish a copy of the brief to the appellant and advise him of his right to obtain

new counsel or file a pro se brief raising any additional points that the

appellant deems worthy of review. Commonwealth v. Hernandez, 783 ____________________________________________

3 On July 3, 2018, Robinson slit the throat of Whitnie Sullivan with a box cutter

or knife at a Walgreen’s in the City of Erie. See N.T. Guilty Plea Hearing, 11/8/19, at 13-14.

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A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009), the Pennsylvania Supreme Court held that, in order to

withdraw under Anders, counsel must also state her reasons for concluding

her client’s appeal is frivolous.

Instantly, counsel’s petition states that she has made a conscientious

examination of the record and determined the appeal is wholly frivolous.

Counsel indicates that she supplied Robinson with a copy of the Anders brief

and a letter explaining his right to proceed pro se, or with privately-retained

counsel, and to raise any other issues he believes might have merit.4 In the

Anders brief, counsel sets out one issue of arguable merit and, pursuant to

the dictates of Santiago, explains why she believes the appeal to be frivolous.

Thus, counsel has substantially complied with the requirements for

withdrawal. We now turn to our independent review of the record to

determine whether Robinson’s appeal is wholly frivolous.

Robinson alleges that his sentence is manifestly excessive, clearly

unreasonable, and inconsistent with the objectives of the Sentencing Code.

This claim is a challenge to the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right. Commonwealth v. Tukhi, 149 A.3d 881,

888 (Pa. Super. 2016). Rather, an appellant challenging the discretionary

4Robinson has not filed a response to counsel’s petition to withdraw or Anders brief.

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aspects of his sentence must invoke this Court’s jurisdiction by satisfying a

four-part test. Id.

We conduct 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, 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, 42 Pa.C.S.[ ] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

Here, Robinson has satisfied the first requirement by timely filing a

notice of appeal, nunc pro tunc. To satisfy the second requirement regarding

preservation, we point out that “[o]bjections to the discretionary aspects of a

sentence are generally waived if they are not raised at the sentencing hearing

or in a motion to modify the sentence imposed.” Id. Robinson did not raise

the issue at his sentencing hearing, nor did he file a motion to modify his

sentence.5 Therefore, he has waived this issue for failing to preserve it. An ____________________________________________

5 In July 2020, Robinson sent a letter to the Erie County Public Defender’s Office stating that he had requested that his lawyer file post-sentence motions and an appeal, but counsel failed to do so. Accordingly, he requested that the office “assign a lawyer to me to do them nunc pro tunc[.]” Motion to Reinstate Appellate Rights Nunc Pro Tunc, 8/17/20, at Exhibit A. The motion subsequently filed by the Public Defender requested only the reinstatement of Robinson’s direct appellate rights, nunc pro tunc. See id. (requesting “order reinstating appellate rights to the Superior Court). In response, the trial court issued an order reinstating Robinson’s appellate rights, but not his post- sentence rights. See Trial Court Order, 8/18/20 (granting motion to reinstate (Footnote Continued Next Page)

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issue that is waived is frivolous. See Commonwealth v. Kalichak, 943 A.2d

285, 291 (Pa. Super. 2008) (when issue has been waived, “pursuing th[e]

matter on direct appeal is frivolous”). Accordingly, Robinson is entitled to no

relief.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/1/2021

and setting deadline for appeal to Superior Court). The reinstatement of appellate rights, nunc pro tunc, does not automatically reinstate post- sentence motion rights. See, e.g., Commonwealth v. Fransen, 986 A.2d 154, 157-58 (Pa. Super. 2009). To the extent Robinson believes that counsel provided ineffective assistance by failing to move for the reinstatement of his post-sentence rights, as he specifically requested, he may seek relief through the Post Conviction Relief Act.

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