Com. v. Schroeder, E.

• Court: Superior Court of Pennsylvania
• Decided: October 2, 2020
• Docket: 3118 EDA 2019
• Status: Unpublished

Opinion

J-S33007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERNEST SCHROEDER : : Appellant : No. 3118 EDA 2019

Appeal from the Judgment of Sentence Entered October 2, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006651-2017

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 02, 2020

Appellant, Ernest Schroeder, appeals from the Judgment of Sentence

imposed after he violated the terms of his probation. Appointed counsel, J.

Anthony Foltz, Esq., seeks to withdraw his representation pursuant to Anders

v. California, 386 U.S. 738 (1967). We affirm the Judgment of Sentence and

grant counsel’s Application to Withdraw as Counsel.

On April 3, 2018, Appellant entered a negotiated plea of nolo contendere

to one count of Terroristic Threats, graded as a first-degree misdemeanor.1 In

exchange for his plea, the Commonwealth agreed to dismiss other charges

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2706(a)(1). J-S33007-20

pending against him and recommend a probationary sentence. The court

accepted Appellant’s plea and imposed twelve months of probation.2

On September 18, 2019, the court revoked Appellant’s probation and

resentenced him to a term of eighteen to sixty months of incarceration.3

Appellant timely filed a Motion for Reconsideration of Sentence, and on

October 2, 2019, the court granted the Motion and resentenced Appellant to

a term of twelve to sixty months of incarceration.

Appellant did not file a post-sentence motion but timely appealed.

Appointed counsel thereafter filed a Statement pursuant to Pa.R.A.P.

1925(c)(4), informing the court of his intention to file an Anders Brief. The

lower court issued a responsive Opinion.

Anders Brief

In this Court, counsel has filed an Anders Brief, challenging the legality

of Appellant’s sentence. Anders Br. at 6, 10-12. In addition, counsel has

filed an Application to Withdraw as Counsel.

“When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal ____________________________________________

2The plea court imposed this sentence consecutive to a sentence imposed at another criminal docket. Thus, Appellant’s probationary sentence did not commence until June 26, 2019. See N.T. Gagnon, 9/18/19, at 7.

3Appellant conceded that he violated the terms of his probation. N.T. Gagnon at 4

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under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), namely:

(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. at 361.

In addition, counsel must provide a copy of the Anders brief to his

client. “Attending the brief must be a letter that advises the client of [her]

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) (quoting

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007)).

Counsel has complied with the requirements of Anders as articulated in

Santiago and supplied Appellant with a copy of his Anders Brief and a letter

explaining the rights enumerated in Nischan. See Application to Withdraw,

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Exh. (Letter, dated March 23, 2020). Accordingly, counsel has complied with

the technical requirements for withdrawal.4

RRRI Ineligibility

Having addressed counsel’s technical compliance with Anders, we will

address the substantive issue raised by counsel. In addition, we must conduct

“a simple review of the record to ascertain if there appears on its face to be

arguably meritorious issues that counsel, intentionally or not, missed or

misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.

2018) (en banc).

Appellant asserts that the court erred when it failed to designate him

eligible for the Recidivism Risk Reduction Incentive (“RRRI”) program.

Anders Br. at 6. Appellant’s claim implicates the legality of his sentence.

Commonwealth v. Finnecy, 135 A.3d 1028, 1033 (Pa. Super. 2016). Our

standard of review is de novo, and our scope of review is plenary. Id.

The RRRI Act provides, in relevant part, that a defendant is RRRI

eligible, as long as he has not been convicted of a personal injury crime as

defined by the Crime Victims Act. 61 Pa.C.S. § 4503. The Crime Victims Act

defines personal injury crimes to include “[a]n act, attempt[,] or threat to

commit an act” under Chapter 27 of the Crimes Code, and graded as a

misdemeanor or felony. 18 P.S. § 11.103. The crime of Terroristic Threats is

included in Chapter 27 of the Crimes Code. See 18 Pa.C.S. § 2706(a)(1).

4 Appellant has offered no response to counsel’s Anders Brief.

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Here, Appellant pleaded nolo contendere to one misdemeanor count of

Terroristic Threats. See Sentencing Order, 4/3/18. Since the Crime Victims

Act defines Terroristic Threats as a personal injury crime and Appellant’s plea

resulted in a conviction for Terroristic Threats graded as a misdemeanor,

Appellant is not eligible for RRRI.

Following our review of the issue raised by Appellant in counsel’s

Anders Brief, we agree with counsel and conclude that this Appeal is wholly

frivolous. In addition, following an independent review of the record, we

discern no arguably meritorious issues that warrant further consideration.

Accordingly, we grant counsel’s Application to Withdraw as Counsel and affirm

Appellant’s Judgment of Sentence.

Application to Withdraw as Counsel granted; Judgment of Sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/2/20

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