J-S95044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ANTHONY NAJI TAYLOR, : : Appellant : No. 2533 EDA 2016
Appeal from the Judgment of Sentence July 14, 2016 in the Court of Common Pleas of Delaware County, Criminal Division, No(s): CP-23-CR-0001654-2016
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 27, 2017
Anthony Naji Taylor (“Taylor”) appeals from the judgment of sentence
imposed following his guilty plea to person not to possess firearms. See 18
Pa.C.S.A. § 6105(a)(1). Additionally, Patrick J. Connors, Esquire
(“Counsel”), has filed a Petition to Withdraw as counsel, and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). We grant Counsel’s Petition to Withdraw, and affirm the judgment
of sentence.
On May 19, 2016, Taylor entered an open guilty plea to persons not to
possess firearms. On July 14, 2016, the trial court sentenced Taylor to five
to ten years in prison. Taylor filed a timely Notice of Appeal. The trial court
ordered Taylor to file a concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(b). In response, Counsel indicated that he
intended to file an Anders brief. J-S95044-16
Before addressing Taylor’s issues on appeal, we must determine
whether Counsel has complied with the dictates of Anders and its progeny
in petitioning to withdraw from representation. Pursuant to Anders, when
counsel believes that an appeal is frivolous and wishes to withdraw from
representation, he or she must
(1) petition the court for leave to withdraw[,] stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted). Additionally, the Pennsylvania Supreme Court has
explained that a proper Anders brief 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 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
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Here, we conclude that Counsel has substantially complied with each
of the requirements of Anders and Santiago. See Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Counsel indicates
that he made a conscientious examination of the record and determined that
an appeal would be wholly frivolous. Further, Counsel’s Anders brief
comports with the requirements set forth in Santiago. Finally, the record
contains a copy of the letter that Counsel sent to Taylor, advising him of his
right to proceed pro se or retain alternate counsel, and file additional claims,
and Counsel’s intention to seek permission to withdraw. Thus, Counsel has
complied with the procedural requirement for withdrawing from
representation. We next examine the record and make an independent
determination of whether Taylor’s appeal is, in fact, wholly frivolous.
Counsel has filed a brief pursuant to Anders that raises the following
question for our review: “Whether a 5 to 10 year prison term is harsh and
excessive under the circumstances of this case?” Anders Brief at 1. Taylor
filed a pro se Response, arguing that his counsel provided ineffective
assistance at sentencing. Pro Se Response at 1 (unnumbered).
Initially, Taylor challenges the discretionary aspects of his sentence. 1
“Challenges to the discretionary aspects of sentencing do not entitle an
1 Because Taylor entered an open guilty plea, his plea did not preclude a challenge to the discretionary aspects of sentencing. See Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).
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appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to determine: (1) whether appellant has filled 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).
***
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Taylor filed a timely Notice of Appeal. However, he did not raise
his sentencing claim at the sentencing hearing or in a post-sentence motion
to modify and reduce sentence. See Commonwealth v. Reaves, 923 A.2d
1119, 1125 (Pa. 2007) (stating that “failure to file a motion for
reconsideration after failing to object at sentencing … operates to waive
issues relating to the discretionary aspects of sentencing.”); see also
Commonwealth v. Williams, 787 A.2d 1085, 1088 (Pa. Super. 2010)
(stating that claims challenging discretionary aspects of sentencing are
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waived when the sentencing judge is not afforded the opportunity to
reconsider or modify the sentence though a post-sentence motion or an
objection at sentencing). Thus, Taylor’s claim is not preserved for our
review.
Regardless of this defect, Anders requires that we examine the merits
of Taylor’s claim to determine whether his appeal is, in fact, “wholly
frivolous” in order to rule upon Counsel’s request to withdraw. See
Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super. 1990) (stating
that discretionary aspects of sentencing raised in an Anders brief must be
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J-S95044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ANTHONY NAJI TAYLOR, : : Appellant : No. 2533 EDA 2016
Appeal from the Judgment of Sentence July 14, 2016 in the Court of Common Pleas of Delaware County, Criminal Division, No(s): CP-23-CR-0001654-2016
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 27, 2017
Anthony Naji Taylor (“Taylor”) appeals from the judgment of sentence
imposed following his guilty plea to person not to possess firearms. See 18
Pa.C.S.A. § 6105(a)(1). Additionally, Patrick J. Connors, Esquire
(“Counsel”), has filed a Petition to Withdraw as counsel, and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). We grant Counsel’s Petition to Withdraw, and affirm the judgment
of sentence.
On May 19, 2016, Taylor entered an open guilty plea to persons not to
possess firearms. On July 14, 2016, the trial court sentenced Taylor to five
to ten years in prison. Taylor filed a timely Notice of Appeal. The trial court
ordered Taylor to file a concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(b). In response, Counsel indicated that he
intended to file an Anders brief. J-S95044-16
Before addressing Taylor’s issues on appeal, we must determine
whether Counsel has complied with the dictates of Anders and its progeny
in petitioning to withdraw from representation. Pursuant to Anders, when
counsel believes that an appeal is frivolous and wishes to withdraw from
representation, he or she must
(1) petition the court for leave to withdraw[,] stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted). Additionally, the Pennsylvania Supreme Court has
explained that a proper Anders brief 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 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
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Here, we conclude that Counsel has substantially complied with each
of the requirements of Anders and Santiago. See Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Counsel indicates
that he made a conscientious examination of the record and determined that
an appeal would be wholly frivolous. Further, Counsel’s Anders brief
comports with the requirements set forth in Santiago. Finally, the record
contains a copy of the letter that Counsel sent to Taylor, advising him of his
right to proceed pro se or retain alternate counsel, and file additional claims,
and Counsel’s intention to seek permission to withdraw. Thus, Counsel has
complied with the procedural requirement for withdrawing from
representation. We next examine the record and make an independent
determination of whether Taylor’s appeal is, in fact, wholly frivolous.
Counsel has filed a brief pursuant to Anders that raises the following
question for our review: “Whether a 5 to 10 year prison term is harsh and
excessive under the circumstances of this case?” Anders Brief at 1. Taylor
filed a pro se Response, arguing that his counsel provided ineffective
assistance at sentencing. Pro Se Response at 1 (unnumbered).
Initially, Taylor challenges the discretionary aspects of his sentence. 1
“Challenges to the discretionary aspects of sentencing do not entitle an
1 Because Taylor entered an open guilty plea, his plea did not preclude a challenge to the discretionary aspects of sentencing. See Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).
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appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to determine: (1) whether appellant has filled 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).
***
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Taylor filed a timely Notice of Appeal. However, he did not raise
his sentencing claim at the sentencing hearing or in a post-sentence motion
to modify and reduce sentence. See Commonwealth v. Reaves, 923 A.2d
1119, 1125 (Pa. 2007) (stating that “failure to file a motion for
reconsideration after failing to object at sentencing … operates to waive
issues relating to the discretionary aspects of sentencing.”); see also
Commonwealth v. Williams, 787 A.2d 1085, 1088 (Pa. Super. 2010)
(stating that claims challenging discretionary aspects of sentencing are
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waived when the sentencing judge is not afforded the opportunity to
reconsider or modify the sentence though a post-sentence motion or an
objection at sentencing). Thus, Taylor’s claim is not preserved for our
review.
Regardless of this defect, Anders requires that we examine the merits
of Taylor’s claim to determine whether his appeal is, in fact, “wholly
frivolous” in order to rule upon Counsel’s request to withdraw. See
Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super. 1990) (stating
that discretionary aspects of sentencing raised in an Anders brief must be
addressed on appeal, despite the fact that the claim was not properly
presented so as to determine whether counsel is entitled to withdraw); see
also Commonwealth v. Lilley, 978 A. 2d 995, 998 (Pa. Super. 2009)
(stating that where counsel files an Anders brief, this Court will review
discretionary aspects of sentencing claims that were otherwise not properly
preserved). Thus, we will review Taylor’s sentencing claims.
Our standard of review for challenges to discretionary aspects of
sentencing is well settled:
[S]entencing is vested in the discretion of the trial court, and will not be disturbed absent a manifest abuse of that discretion. An abuse of discretion involves a sentence which was manifestly unreasonable, or which resulted from partiality, prejudice, bias or ill will. It is more than just an error in judgment.
Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)
(citation omitted).
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Taylor asserts that the sentence was excessive. Anders Brief at 5.
Taylor claims that the trial court abused its discretion by failing to consider
mitigating factors, including his desire to improve his life and his drug
problems. Id.
Here, in imposing sentence, the trial court reviewed a pre-sentencing
investigation report and a substance abuse evaluation. See N.T., 7/14/16,
at 3, 6, 9. Where the sentencing judge considered a pre-sentencing
investigation report, it is presumed that they were aware of the all relevant
sentencing factors and weighed all mitigating statutory factors. See
Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006); see
also Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(noting that the “sentencing judge can satisfy the requirement that reasons
for imposing sentence be placed on the record by indicating that he or she
has been informed by the pre-sentencing report; thus properly considering
and weighing all relevant factors.”) (citation omitted). The trial court also
considered Taylor’s statements, Taylor’s prior criminal history, the fact that
Taylor was employed, and Taylor’s drug issues. See N.T., 7/14/16, at 6-8,
10-12, 13. Further, the trial court imposed a standard range sentence. Id.
at 3-4, 18; see also Moury, 992 A.2d at 171 (stating that “where a
sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the sentencing code.”). Based
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upon the foregoing, we discern no abuse of the sentencing court’s discretion
in imposing the sentence. See Ventura, supra; Flower, supra.2
Further, our independent review discloses no other non-frivolous
issues that Taylor could raise on appeal. Accordingly, we grant Counsel’s
Petition to Withdraw and affirm Taylor’s judgment of sentence.
Petition to Withdraw granted; judgment of sentence affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/27/2017
2 In his pro se response, Taylor raises an ineffective assistance of counsel claim. It is well-settled that ineffectiveness claims are not generally raised on direct appeal, and are to be raised on collateral review. See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).
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