Com. v. Smith, J.

Opinion

J-S55021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JEREMIAH SMITH

Appellant No. 490 MDA 2017

Appeal from the Judgment of Sentence March 8, 2017 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002630-2016, CP-40-CR-0002733- 2016

BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY RANSOM, J.: FILED OCTOBER 02, 2017

Appellant, Jeremiah Smith, appeals from the judgment of sentence of

ninety-six to two hundred forty months, imposed March 8, 2017, following

an open guilty plea resulting in his conviction for two counts of robbery and

one count each of aggravated assault and firearms not to be carried without

a license.1 Additionally, Appellant’s counsel, Matthew P. Kelly, Esq., seeks to

withdraw his representation of Appellant pursuant to Anders v. California,

87 S. Ct. 1936 (1967), and Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009). We affirm and grant counsel’s petition to withdraw.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 3701(a)(1)(ii), 2702(a)(4), and 6106(a)(1). J-S55021-17

On December 16, 2016, Appellant pleaded guilty to the

aforementioned charges. On March 8, 2017, Appellant appeared before the

court for sentencing. The court sentenced Appellant to standard range

sentences resulting in an aggregate term of ninety-six to two hundred forty

months of incarceration. Appellant was advised of his post sentence rights

but failed to file a post sentence motion.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The court issued a responsive

opinion, finding that Appellant’s challenge to the discretionary aspects of his

sentence was waived for failure to file a post-sentence motion.

In this court, Appellant’s counsel has filed an Anders brief, asserting a

single issue that Appellant might seek to raise: whether the trial court

abused its discretion in sentencing Appellant. See Appellant’s Brief at 1.

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 under Anders, counsel must file a brief that meets the

requirements established by the Pennsylvania Supreme Court in Santiago,

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;

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(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.

Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his 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. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then may this Court “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

In the instant matter, Attorney Kelly’s Anders brief complies with the

above-stated requirements. Namely, he includes a summary of the relevant

factual and procedural history; he refers to the portions of the record that

could arguably support Appellant’s claims; and he sets forth his conclusion

that Appellant’s appeal is frivolous. He explains his reasoning and supports

his rationale with citations to the record as well as pertinent legal authority.

Attorney Kelly avers he has supplied Appellant with a copy of his Anders

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brief and a letter explaining the rights enumerated in Nischan. Accordingly,

counsel has complied with the technical requirements for withdrawal. Thus,

we may independently review the record to determine if the issues Appellant

raises are frivolous and to ascertain if there are other non-frivolous issues he

may pursue on appeal.

The sole issue counsel potentially raises on Appellant’s behalf is a

challenge to the discretionary aspects of his sentence. See Appellant’s Brief

at 10-14. A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal. See Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.

2119(f). This Court conducts a four-part analysis to determine: (1) whether

Appellant has timely filed a notice of appeal; (2) whether the issue was

properly preserved at sentencing or in a motion to reconsider and modify

sentence; (3) whether Appellant’s brief has a fatal defect; 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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).

Appellant timely filed a notice of appeal but did not preserve his

discretionary challenge in a post sentence motion and, accordingly, has

waived his sole issue for purposes of appeal. See Leatherby, 116 A.3d at

83. In short, we agree with Attorney Kelly that Appellant’s issue is frivolous.

We have independently reviewed the record and find no other issues of

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arguable merit that he could pursue on appeal. Accordingly, we affirm

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

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/2/2017

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