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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER WALKER, :
:
Appellant : No. 782 WDA 2014
Appeal from the Judgment of Sentence Entered April 10, 2014
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0003631-2013
BEFORE: BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 13, 2015
Christopher Walker (Appellant) appeals from the judgment of sentence
of 12 to 24 months of incarceration following his no contest pleas to simple
assault and disorderly conduct. Also before us is counsel’s petition to
withdraw as counsel 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 the petition to withdraw.
The trial court summarized the history of the case as follows.
On February 2, 2014, Appellant appeared before th[e trial
c]ourt and entered a no contest plea to Count 1, simple assault
(misdemeanor of [the] second degree) and Count 2, disorderly
conduct (misdemeanor of the third degree). These charges
arose from an incident that took place on November 8, 2013 in
Millcreek Township, Erie County, Pennsylvania. On that date,
Appellant pushed the victim onto a bed, placed a pillow over her
head, struck her, and then threw her onto the floor. To add
insult to injury, he spit on her. The disorderly conduct involved
*Retired Senior Judge assigned to the Superior Court.
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his conduct vis-à-vis the police officers who responded to the
incident.
On April 10, 2014, Appellant was sentenced to a term of
12 to 24 months’ incarceration on the simple assault charge and
a concurrent 6 to 12 months’ incarceration on the disorderly
conduct charge. These were standard range sentences.
On May 8, 2014, Appellant filed a timely notice of appeal.
On May 9, 2014, th[e trial c]ourt ordered Appellant to file a
concise statement of [errors] complained of on appeal pursuant
to Pa.R.A.P. 1925(b). Appellant timely complied on May 19,
2014….
Trial Court Opinion, 6/18/2014, at 1-2 (some punctuation modified).
Counsel filed with this court a petition to withdraw and an Anders
brief. Thus, before we consider the substance of this appeal, we must
address counsel’s compliance with Anders:
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. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
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frivolous issues, we will deny the petition and remand for the
filing of an advocate's brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we hold that in 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 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.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has satisfied the above
requirements.1 Therefore, we shall conduct an independent review of the
appeal to determine whether it is indeed wholly frivolous.
The Anders brief states one issue that arguably supports this appeal:
“Whether the Appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the Pennsylvania
Sentencing Code?” Anders Brief at 3.
1
Appellant has not filed a pro se response raising any additional points for
our consideration.
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Appellant’s question challenges the discretionary aspects of his
sentence. Accordingly, we bear in mind the following.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Nowhere in the record is any indication that Appellant preserved his
challenge for appeal by raising it at sentencing or in a post-sentence motion.
However, under our Anders review we will consider the merits of the issue.
See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citing
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(concluding that Anders requires review of issues which otherwise would be
waived on appeal)).
The instant statement of the reasons relied upon for allowance of
appeal claims that Appellant’s sentence violates the following provision of
the Sentencing Code: “The appellate court shall vacate the sentence and
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remand the case to the sentencing court with instructions if it finds: … the
sentencing court sentenced within the sentencing guidelines but the case
involves circumstances where the application of the guidelines would be
clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2). Anders Brief at 5.
Further, Appellant maintains that his sentence is inconsistent with 42 Pa.C.S.
§ 9721(b)2 because “the objectives of protecting the public and rehabilitation
could have been achieved without such a lengthy sentence”. Anders Brief
at 6.
Assuming arguendo that Appellant’s issues raise a substantial
question, we hold that the trial court did not abuse its discretion in ordering
standard-range, concurrent sentences. The sentencing transcript reveals
that the trial court considered the pre-sentence investigation report, the
sentencing guidelines, and the statements of counsel for Appellant and the
Commonwealth regarding mitigating factors, the impact on the victim, and
Appellant’s repeated failure to seek help for his alcohol-abuse and anger-
management issues despite his extensive prior record of “multiple assaults,
DUIs, public drunks [sic] and disorderly conducts.” N.T., 4/10/2014, at 7.
2
This section provides, in relevant part: “In selecting from the alternatives
set forth in subsection (a), the court shall follow the general principle that
the sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S.A. § 9721(b).
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In announcing Appellant’s sentence, the trial court offered the following
explanation:
In your particular case it’s been pointed out you’ve got
prior assault charges, DUI charges, public drunkenness,
disorderly conduct, defiant trespass. You’ve basically been a
pain for most of the magisterial district judges that have had to
deal with you over the years. You’ve been sentenced to county
level jail sentences; been sentenced before the magistrate
district … judges; you were sentenced in Texas. You completed
some of your sentences successfully, revoked in others.
So when you look at the whole view of this thing, you’re
really no better off than when you started committing offenses,
which I think started all the way back in 1997 shortly after you
got out of high school. …
I don’t know … what you’ve been thinking about, but if I
gave you probation they should impeach me because it would be
absolutely absurd, given your record.
You’ve got to take responsibility for your life and you
haven’t done that.
Id. at 9-10.
Clearly, the trial court individualized Appellant’s sentence based on the
failure of past, lesser terms of confinement to cause Appellant to change his
ways, the necessity to protect the public from Appellant’s repeated criminal
behavior, and Appellant’s need for state supervision and the attendant
counseling offered for alcohol abuse and anger management. Id. at 11. We
discern no indication that “the the sentencing court ignored or misapplied
the law, exercised its judgment for reasons of partiality, prejudice, bias or ill
will, or arrived at a manifestly unreasonable decision.” Commonwealth v.
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Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014) (quoting
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)).
Therefore, we agree with counsel that the appeal is wholly frivolous.
Accordingly, we grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed. Petition to Withdraw as Counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2015
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