Commonwealth v. Hartman

908 A.2d 316, 2006 Pa. Super. 251, 2006 Pa. Super. LEXIS 2794
CourtSuperior Court of Pennsylvania
DecidedSeptember 11, 2006
DocketNO. 991 MDA 2005
StatusPublished
Cited by44 cases

This text of 908 A.2d 316 (Commonwealth v. Hartman) 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
Commonwealth v. Hartman, 908 A.2d 316, 2006 Pa. Super. 251, 2006 Pa. Super. LEXIS 2794 (Pa. Ct. App. 2006).

Opinion

OPINION BY

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Berks County following Appellant’s conviction on the charge of sexual abuse of children, 18 Pa.C.S.A. § 6312(d)(1).1 On appeal, appellate counsel, Andrea E. Mertz, Esquire, has filed a petition to withdraw her representation and brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). After counsel filed her petition to withdraw and brief, Appellant filed his own pro se brief. We grant counsel’s petition to withdraw and affirm the judgment of sentence.

¶ 2 On February 15, 2005, represented by Michael D. Dautrich, Esquire, Appellant entered an open guilty plea to the crime of sexual abuse of children. During the guilty plea colloquy, the Commonwealth established that on July 2, 2004, Appellant took his computer to Worldnet Technology Consultants to be serviced. Computer technicians discovered numerous photographs of naked girls on Appellant’s computer’s hard drive, and the technicians contacted the police. A pediatrician, whom the Commonwealth consulted, opined that the majority of the photographs depicted females under the age of fifteen who were engaged in sexual acts. Appellant had downloaded the pictures from Internet websites.

¶ 3 On May 18, 2005, the trial court sentenced Appellant, who was still represented by Attorney Dautrich, to three months to twenty-three months in prison, to be followed by five years of probation. As a condition of his probation, the trial court ordered that Appellant would submit to urine surveillance, participate in sex offender therapy, have no contact with any minor children, and not view or possess pornography.

¶4 The trial court also ordered that Appellant “shall not possess a computer in his home or use any public computer for a fee or free and shall not own a cell phone with Internet capabilities or a PDA with the same and he shall not access the Internet.”

¶ 5 Appellant did not file a timely post-sentence motion; however, he filed a timely pro se direct appeal. On June 23, 2005, Attorney Mertz of the Berks County Public Defender’s Office was appointed to represent Appellant.2 Thereafter, Attorney [319]*319Mertz filed with this Court a petition seeking to withdraw her representation and a brief pursuant to Anders and McClendon.3 In response, Appellant filed a pro se brief for this Court’s consideration.

¶ 6 “When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw.” Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super.1997) (citation omitted). To be permitted to withdraw pursuant to Anders, counsel must: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a “no-merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court’s attention. Smith, supra. “After establishing the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super.1997).

¶ 7 We find that Attorney Mertz has complied with all of the antecedent requirements of Anders. In her petition and brief, counsel indicated she made a conscientious examination of the record, determined the appeal would be wholly frivolous, indicated she furnished Appellant with a copy of the brief, and stated she advised Appellant of his rights in lieu of representation. Moreover, counsel has provided this Court with a proper Anders brief discussing the issues. Therefore, we shall proceed to an independent evaluation of the record in order to determine the accuracy of counsel’s averment that this appeal is wholly frivolous. Townsend, supra.

¶ 8 The sole issue raised by Attorney Mertz on Appellant’s behalf is whether the trial court abused its discretion by ordering that, as a condition of Appellant’s probation, Appellant “shall not possess a computer in his home or use any public computer for a fee or free and shall not own a cell phone with Internet capabilities or a PDA with the same and he shall not access the Internet.” Citing to 42 Pa. C.S.A. § 9754(c)(13), Attorney Mertz indicates that the conditions are not reasonably related to Appellant’s rehabilitation, are incompatible with Appellant’s freedom of conscience, and are unduly restrictive.

¶ 9 Initially, we note that Appellant did not raise this discretionary aspect of sentencing claim during the sentencing proceedings, and he did not file a timely post-sentence motion addressing the claim. Therefore, as the Commonwealth suggests, we find Appellant’s discretionary aspect of sentencing claim to be waived. See Commonwealth v. Shugars, 895 A.2d 1270 (Pa.Super.2006); Commonwealth v. Watson, 835 A.2d 786 (Pa.Super.2003). However, assuming, arguendo, that Appellant [320]*320properly presented his discretionary aspect of sentencing claim in the court below, we find that the claim is meritless.

When the discretionary aspects of a judgment of sentence are questioned, an appeal is not guaranteed as of right. Two criteria must first be met before a challenge to a judgment of sentence will be heard on the merits. First, an appellant must “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence.” Pa.R.A.P. 2119(f). Second, an appeal will be granted only “where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa. C.S.A. § 9781(b).
The determination of whether a substantial question exists must be determined on a case-by-case basis. It is only where an appellant can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. A substantial question exists where an appellant advances a colorable argument that the sentencing judge’s actions where [sic ] either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Koren, 435 Pa.Super. 499, 646 A.2d 1205, 1207-1208 (1994) (quotations and citations omitted).

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Bluebook (online)
908 A.2d 316, 2006 Pa. Super. 251, 2006 Pa. Super. LEXIS 2794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hartman-pasuperct-2006.