Com. v. Sanches, R.

Opinion

J-S05020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : RAFAEL R. SANCHES, JR., : : Appellant : No. 855 WDA 2014

Appeal from the Judgment of Sentence Entered April 15, 2014, In the Court of Common Pleas of Erie County, Criminal Division, at No. CP-25-CR-0001914-2013.

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 17, 2015

Appellant, Rafael R. Sanches, Jr., appeals from the judgment of

sentence entered on April 15, 2014, in the Court of Common Pleas of Erie

County. Appellant’s counsel has filed a petition seeking to withdraw her

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which

govern a withdrawal from representation on direct appeal. Appellant has not

filed a response to counsel’s petition. After careful review, we grant

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

The trial court summarized the factual and procedural history of this

case as follows:

On or about March 22, 2013, a Confidential Informant (“CI”) provided information to the City of Erie police that there J-S05020-15

was going to be a delivery of 10.6 pounds of marijuana to the CI’s home at 823 Washington Place in Erie later that same day. According to the CI, Appellant and a co-conspirator, Ricardo Melendez-Angulo, were to deliver the marijuana. Appellant would be driving a blue Chevrolet Impala.

The police set up surveillance and observed Appellant drive a blue Impala to the rear of the CI’s residence. Ricardo Melendez-Angulo, who owned the vehicle, was in the passenger seat. The vehicle was seized and towed to the Erie Police Department. A search warrant was obtained and the vehicle was searched with the aid of a drug-sniffing dog. In the trunk of the vehicle, the police found a garbage bag containing a box of sandwich bags, a box of one-gallon zip-lock bags, a digital scale and eleven one-gallon bags each containing approximately ten and one-half pounds of marijuana, with a street value of $24,600 to $49,208.

Appellant was charged with one count each of Criminal Conspiracy (to commit Possession with Intent to Deliver Marijuana); Possession with Intent to Deliver; Possession of a Controlled Substance; Possession of Drug Paraphernalia; and Criminal Use of Communication Facility (use of cell phone to arrange a drug delivery).1 Criminal Information, July 23, 2013. 1 18 Pa.C.S.A. §903/35 P.S. §780-113(a)(30); 35 P.S. §780-113(a)(30); 35 P.S. §780-113(a)(16); 35 P.S. §780(a)(32); and 18 Pa.C.S.A. §7512(a), respectively. It is noted the original sentencing Order erroneously listed Count 1 as Possession with Intent to Deliver. The sentencing Order was corrected to reflect Count 1 is Criminal Conspiracy (to commit Possession with Intent to Deliver).

On September 9, 2013, Appellant filed a Petition for Writ of Habeas Corpus alleging the Commonwealth did not establish a prima facie case as all relevant information the police received was from the CI who did not testify at the preliminary hearing. The only Commonwealth witnesses were two police officers whose testimony was based solely on hearsay. After a hearing

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on October 1, 2013, Judge Connelly denied the Petition for Writ of Habeas Corpus by Order dated October 4, 2013.

Appellant filed an Omnibus Motion for Pretrial Relief seeking to suppress the evidence. After a hearing, Judge Connelly denied the motion to suppress the evidence by Opinion and Order dated November 26, 2013.

Appellant and the Commonwealth entered into a negotiated plea agreement[1] whereby Appellant would plead guilty to all five counts. In return, the Commonwealth would reduce the weight of the marijuana to 9.9 pounds for sentencing and waive the mandatory minimum at Count Two, Possession with Intent to Deliver. Appellant pled guilty to the five counts on January 15, 2014. Appellant was sentenced on April 15, 2014 as follows:

Count One: 15 to 30 months of incarceration concurrent with Docket Numbers 1271/1272 of 1998 (Lehigh County);

Count Two: 15 to 30 months of incarceration consecutive to Count One;

Count Three: Merged with Count 2;

Count Four: 12 months of probation concurrent with Count 5; and

Count Five: 36 months of probation consecutive to Count 2.

On April 23, [2014], Appellant filed a Motion to Modify/Reconsider Sentence seeking to have the sentence at Count Two imposed concurrently rather than consecutively. The

1 We note that Appellant has not waived his right to appeal the discretionary aspect of his sentence raised on appeal because Appellant has not challenged an aspect of his sentence that was agreed upon during the negotiation process. Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994).

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Motion to Modify was denied by Order on April 23, 2014. Appellant [pro se] timely filed a Notice of Appeal on May 22, 2014, and a Concise Statement of Matters/Errors Complained of on Appeal on June 3, 2014.

Trial Court Opinion, 7/3/14, at 1-3.

On appeal, this Court remanded the matter to the trial court for

appointment of appellate counsel. Commonwealth v. Sanches, 855 WDA

2014, A.3d (Pa. Super., filed February 18, 2015) (unpublished

memorandum at 7). Counsel was directed to file a Pa.R.A.P. 1925(b)

statement on Appellant’s behalf. Id. The trial court was directed to file an

opinion pursuant to Pa.R.A.P. 1925(a), and the parties were directed to file

briefs. Id.

Counsel was appointed and timely filed a Pa.R.A.P. 1925(b) statement

on April 2, 2015. On April 7, 2015, the trial court entered an order stating

that because the sole issue raised in the Pa.R.A.P. 1925(b) statement had

been addressed by the trial court’s opinion dated and filed July 3, 2014,

there was no need for an additional opinion. The record reflects that counsel

filed a brief on June 26, 2015, and on June 30, 2015, filed an application to

withdraw as counsel. The Commonwealth filed a letter entered July 30,

2015, indicating its position that a response was not necessary and declining

to file a responsive brief in this matter.

As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we first must resolve

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appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and

briefing requirements imposed upon an attorney who seeks to withdraw on

appeal. The procedural mandates are that counsel 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) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within her petition

to withdraw, counsel averred that she conducted a conscientious

examination of the record. Following that review, counsel concluded that

the present appeal is wholly frivolous. Counsel sent Appellant a copy of the

Anders brief and petition to withdraw, as well as a letter, a copy of which is

attached to the petition to withdraw. In the letter, counsel advised Appellant

that he could represent himself or that he could retain private counsel to

represent him.

We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide 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

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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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

Counsel’s brief is compliant with Santiago. It sets forth the history of

this case, outlines pertinent case authority, and cites to the record. Further,

the brief sets forth counsel’s conclusion that the appeal is frivolous, and

counsel’s reasons for that conclusion. We thus conclude that the procedural

and briefing requirements for withdrawal have been met.

Accordingly, we address the following issue raised in the Anders brief:

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

Appellant’s Brief at 3.

Appellant argues that the trial court abused its discretion in imposing

the sentence in this case. Specifically, Appellant contends that the sentence

imposed was harsh and excessive in light of the factors which should have

been considered by the sentencing court. Thus, counsel is purporting to

present a challenge to the discretionary aspects of Appellant’s sentence.

It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be

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considered to be a petition for allowance of appeal. Commonwealth v.

W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e 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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial

court will be deemed preserved for appellate review. Id. at 692. Applying

this principle, the Reeves Court held that an objection to a discretionary

aspect of a sentence is waived if not raised in a post-sentence motion or

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during the sentencing proceedings. Id.; see also Commonwealth v.

Parker, 847 A.2d 745, 752 (Pa. Super. 2004) (holding challenge to

discretionary aspect of sentence was waived because appellant did not

object at sentencing hearing or file post-sentence motion).

Initially, we conclude that the first requirement of the four-part test is

met because Appellant brought this direct appeal in a timely manner

following the imposition of sentence. However, our review of the record

reflects that Appellant did not meet the second requirement because he did

not raise his current challenge in a post-sentence motion2 or at the time of

sentencing. Therefore, we are constrained to conclude that Appellant’s issue

is waived, and we are precluded from addressing the merits of this issue on

appeal.

We also have independently reviewed the record in order to determine

whether there are any non-frivolous issues present in this case.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having

concluded that there are no meritorious issues, we grant Appellant’s counsel

permission to withdraw, and affirm the judgment of sentence.

2 While Appellant filed a timely motion to modify/reconsider sentence, in that motion Appellant failed to raise the issue presented on appeal. In fact, the relevant paragraph provides as follows: “Undersigned counsel believes that the sentence rendered by the Court in this matter was fair and just. However, undersigned counsel is respectfully requesting that the Court to [sic] reconsider the [Appellant’s] sentence and modify it to run counts 1 and 2 concurrent as opposed to consecutive.” Motion to Modify/Reconsider Sentence, 4/23/14, at ¶ 7.

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Petition of counsel to withdraw is granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/2015

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