Com. v. Sims, A.

CourtSuperior Court of Pennsylvania
DecidedMay 14, 2024
Docket1695 EDA 2023
StatusUnpublished

This text of Com. v. Sims, A. (Com. v. Sims, A.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. v. Sims, A., (Pa. Ct. App. 2024).

Opinion

J-S12040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AARON J. SIMS : : Appellant : No. 1695 EDA 2023

Appeal from the Judgment of Sentence Entered April 28, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006313-2021

BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 14, 2024

Appellant, Aaron J. Sims, appeals from the aggregate judgment of

sentence of 7 to 14 years’ incarceration, imposed after he entered a non-

negotiated guilty plea to homicide by vehicle while driving under the influence

(DUI) and related offenses. On appeal, Appellant’s counsel, George S.

Yacoubian, Esq., states that there are no, non-frivolous issues that Appellant

can raise and, thus, counsel seeks to withdraw his representation of Appellant

pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,

we deny counsel’s petition to withdraw and issue instructions.

Briefly, Appellant’s convictions stemmed from the fact that

[o]n January 25, 2020, decedent Chloe Robertson was in an Uber when her vehicle was rear-ended by [Appellant’s] vehicle. Ms. Robertson was killed in the collision, and the driver and third occupant [of the vehicle] were seriously injured. [Appellant’s] toxicology revealed [Tetrahydrocannabidiol (THC), a terpenoid J-S12040-24

found in cannabis,] and a blood-alcohol content twice the legal limit.

Anders Brief at 5.

“After an arrest warrant was issued, [A]ppellant eluded apprehension,

but U.S. Marshals[,] with the help of Camden Police[,] were finally able to

locate and apprehend him a year later.” Commonwealth’s Brief at 3 (citation

to the record omitted). On March 3, 2023, Appellant entered an open guilty

plea to homicide by vehicle while DUI, 75 Pa.C.S. § 3735(a)(1)(i); homicide

by vehicle, 75 Pa.C.S. § 3732(a); involuntary manslaughter, 18 Pa.C.S. §

2504(a); DUI (highest rate), 75 Pa.C.S. § 3802(c); three counts of recklessly

endangering another person, 18 Pa.C.S. § 275; and two counts each of

aggravated assault by vehicle while DUI, 75 Pa.C.S. § 3735.1(a); aggravated

assault by vehicle, 75 Pa.C.S. § 3732.1(a); and simple assault, 18 Pa.C.S. §

2701(a). On April 28, 2023, the trial court sentenced him to a mandatory-

minimum term of 3 to 6 years’ incarceration for his conviction of homicide by

vehicle while DUI, and two consecutive terms of 2 to 4 years’ incarceration for

each of his two convictions of aggravated assault by vehicle while DUI.

Appellant’s other convictions either merged for sentencing purposes, or the

court imposed no further penalty. Therefore, his aggregate sentence is 7 to

14 years’ incarceration.

Appellant, via Attorney Yacoubian, filed a timely motion for modification

of his sentence, which the court denied. Attorney Yacoubian then filed a timely

notice of appeal on Appellant’s behalf, and counsel also complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

-2- J-S12040-24

complained of on appeal. Therein, Attorney Yacoubian stated three issues

that he intended to raise on appeal:

1. [Appellant’s] aggregate sentence of 7-14 years’ incarceration was unduly excessive when weighed against the Commonwealth’s original offer of 6-12 years’ incarceration;

2. [Appellant’s] aggregate sentence of 7-14 years’ incarceration was contrary to the utilitarian goals of punishment: specific and general deterrence, incapacitation, and rehabilitation.

3. [Appellant’s] 2-4-year[,] consecutive sentence for aggravated assault [for] victim Daniel Charles was unduly excessive, as Mr. [Charles] failed to appear for sentencing, declined to submit a victim impact letter, and is a named Defendant in a civil suit for the underlying incident.

Pa.R.A.P. 1925(b) Statement, 7/12/23, at 1 (unnumbered; brackets added by

Appellant omitted).

On October 31, 2023, Attorney Yacoubian filed with this Court a petition

to withdraw and an Anders brief. Notably, there is no indication in either of

those documents that Attorney Yacoubian provided these documents to

Appellant. See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007) (providing that counsel must provide a copy of the petition to withdraw

and Anders brief to the appellant). Additionally, Attorney Yacoubian failed to

attach to the petition to withdraw or Anders brief a letter to Appellant

informing him of his right to retain new counsel to pursue the appeal, proceed

pro se on appeal, or raise any additional points that Appellant deems worthy

of this Court’s attention in addition to the points raised by Attorney Yacoubian

in the Anders brief. See Commonwealth v. Harden, 103 A.3d 107, 110

(Pa. Super. 2014) (“Counsel also must provide a copy of the Anders brief to

-3- J-S12040-24

the appellant. Attending the brief must be a letter that advises the appellant

of his or 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.”) (internal citations and quotation marks omitted); Commonwealth v.

Millisock, 873 A.2d 748, 752 (Pa. Super. 2005) (opining that the prudent

course is to require counsel to attach to the petition to withdraw a copy of the

letter sent to the client advising of his or her rights).

Accordingly, on December 12, 2023, this Court entered an order

directing Attorney Yacoubian to provide Appellant with a copy of the petition

to withdraw as counsel, Anders brief, and a letter advising Appellant of his

rights. Counsel was ordered to file written notice in this Court demonstrating

that counsel complied. Additionally, in light of the fact that Attorney

Yacoubian failed to attach to the petition to withdraw a copy of the letter

advising Appellant of his rights, the order directed counsel to provide this

Court with seven (7) copies of the letter.

On December 12, 2023, Attorney Yacoubian filed a one-page response,

consisting of a copy of the letter advising Appellant of his rights. Nothing in

that letter indicates that Attorney Yacoubian sent a copy of his petition to

withdraw and Anders brief to Appellant. Therefore, counsel has not only

failed to comply with the requirements for withdrawal, but he has also

disregarded the directives that this Court set forth in our December 12, 2023

order.

-4- J-S12040-24

Consequently, we must deny counsel’s petition to withdraw. In

Wrecks, we explained:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof….

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Commonwealth v. Harden
103 A.3d 107 (Superior Court of Pennsylvania, 2014)
Commonwealth v. Millisock
873 A.2d 748 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Wrecks
931 A.2d 717 (Superior Court of Pennsylvania, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
Com. v. Sims, A., Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-sims-a-pasuperct-2024.