Com. v. Vanderpool, S.

Superior Court of Pennsylvania

Com. v. Vanderpool, S.

DecidedJuly 13, 2021

Docket1534 MDA 2020

StatusUnpublished

This text of Com. v. Vanderpool, S. (Com. v. Vanderpool, S.) 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. Vanderpool, S., (Pa. Ct. App. 2021).

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Opinion

J-S14013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN NICHOLAS VANDERPOOL : : Appellant : No. 1534 MDA 2020

Appeal from the Judgment of Sentence Entered November 23, 2020 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000344-2020

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED JULY 13, 2021

Steven Nicholas Vanderpool appeals from the judgment of sentence of

five years and six months to fourteen years of incarceration, followed by three

years of probation, imposed after he pled nolo contendere and guilty,

respectively, to aggravated indecent assault and sexual abuse of children.

Appellant’s counsel, Richard A. Wilson, Esquire, has filed an application to

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

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the

judgment of sentence and grant counsel’s application to withdraw.

We glean the following underlying facts from the certified record.

Between December 2018 and April 2019, Appellant, a man in his twenties,

repeatedly molested the fourteen-year-old daughter of his paramour in their

Bradford County residence. In addition to routine grabbing of her breasts and J-S14013-21

buttocks, he digitally penetrated her vagina on several occasions and once

attempted penile penetration. Appellant also obtained sexually explicit images

of her, which were ultimately found on his cell phone.

Appellant was charged with a number of crimes, from misdemeanors to

the first-degree felony of attempted rape. Ultimately, following written and

oral plea colloquies, Appellant agreed to enter open pleas to aggravated

indecent assault and sexual abuse of children in exchange for the dismissal of

the remaining charges. The trial court accepted the pleas and ordered a pre-

sentence investigation (“PSI”), which revealed, inter alia, that Appellant had

a lengthy criminal history, including a previous assault on a young girl. On

November 23, 2020, the trial court imposed the above-referenced aggregate

sentence, which consisted of consecutive standard-range sentences for the

separate convictions.

Appellant filed no post-sentence motion, but filed a timely notice of

appeal. The trial court ordered Appellant to file a concise statement of errors

complained of on appeal, to which counsel timely responded with a statement

of intention to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).1 The

trial court authored an opinion explaining that the sentence should be affirmed

because, inter alia, Appellant failed to preserve the issue for appeal by filing

____________________________________________

1 In addition to stating its intention to file an Anders brief, counsel indicated

that Appellant believed his sentence was too harsh and that Appellant’s mother had health issues.

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a motion to reconsider his sentence prior to filing the appeal. See Trial Court

Opinion, 1/5/21, at 2 n.1.

In this Court, Appellant’s counsel filed both an Anders brief and a

petition to withdraw as counsel. The following legal principles guide our

review:

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 . . . .

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf). By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted). Our Supreme Court has further expounded upon counsel’s

duties as follows:

[I]n 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 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

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record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above.2 As required by Santiago, counsel

set forth the case history, referred to an issue that arguably supports the

appeal, stated his conclusion that the appeal is frivolous, and cited case law

which supports that conclusion. See Anders brief 4-13. Therefore, we now

proceed “‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.

2015) (quoting Santiago, supra at 354 n.5).

The issue arguably supporting an appeal cited by Appellant’s counsel is

whether the trial court abused its discretion in sentencing Appellant. Anders

brief at 4. In reviewing the question, we bear in mind the following:

An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:

(1) whether appellant has filed a timely 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 ____________________________________________

2 Appellant did not file a response to counsel’s petition.

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defect [pursuant to] 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.

Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (cleaned

up).

Here, Appellant timely filed a notice of appeal, but did not preserve the

issue by raising it at the sentencing proceeding or filing a motion to modify

sentence. Therefore, we agree with counsel that a challenge to the

discretionary aspects of Appellant’s sentence is frivolous. See

Commonwealth v.

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