J-S74034-14
2015 PA Super 69
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARNELL FLOWERS, :
:
Appellant : No. 1329 EDA 2014
Appeal from the Judgment of Sentence Entered March 21, 2014
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000061-2012
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARNELL FLOWERS, :
:
Appellant : No. 1330 EDA 2014
Appeal from the Judgment of Sentence Entered March 21, 2014
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004340-2012
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARNELL FLOWERS, :
:
Appellant : No. 1331 EDA 2014
Appeal from the Judgment of Sentence Entered March 21, 2014
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007596-2011
J-S74034-14
BEFORE: BENDER, P.J.E., DONOHUE and STRASSBURGER, JJ.
DISSENTING OPINION BY STRASSBURGER, J.: FILED APRIL 10, 2015
I respectfully dissent.
The Majority concludes that, when direct appeal counsel has sought to
withdraw his or her representation and has met the technical requirements
of Anders and Santiago, this Court is required to review the entire certified
record to determine whether any non-frivolous issues exist. I acknowledge
that the Majority has offered a reasonable interpretation of case law in
reaching this conclusion.
However, in my view, the Majority’s conclusion is not required by our
Supreme Court’s decisions. The Santiago Court explicitly declined to
address this Court’s role in the Anders process. 978 A.2d at 355 n.5.
Indeed, Santiago’s additional burdens upon Anders counsel to demonstrate
to this Court that he or she has thoroughly reviewed the record and
researched the relevant authorities seems utterly unwarranted if this Court
is to ignore counsel’s representations and, instead, scour the record itself in
search of any issues of arguable merit.
Furthermore, in addition to the case law relied upon by the Majority,
this Court has published binding precedent which indicates that, when
counsel has complied with Anders, rather than searching the entire record
Retired Senior Judge assigned to the Superior Court.
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to determine whether any non-frivolous issues exist, this Court must
determine only whether the issues presented in an Anders brief are wholly
frivolous. See, e.g., Commonwealth v. Martuscelli, 54 A.3d 940,
947 (Pa. Super. 2012) (“We, therefore, turn to the issue presented in
counsel’s Anders brief to make an independent judgment as to whether the
appeal is, in fact, wholly frivolous.”); Commonwealth v. Garang, 9 A.3d
237, 240-41 (Pa. Super. 2010) (“As counsel has complied with all of the
requirements set forth above, we now proceed to an independent review of
the record and the issues counsel stated arguably support an appeal.”);
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (“As
counsel has complied with all of the requirements set forth above, we now
turn to the issues counsel stated arguably support an appeal.”); see also
Commonwealth v. Nischan, 928 A.2d 349, 353-54 (Pa. Super. 2007) (“If
this Court receives a petition to withdraw and a brief, both submitted in
accord with Anders, and if we are satisfied that counsel has complied with
the three technical Anders requirements, we will then undertake our own
independent examination of the issues raised in the Anders brief and in any
pro se brief to determine whether we agree with counsel’s assessment that
the appeal before us is frivolous.”).
In my view, the approach this Court has taken in cases such as
Martuscelli properly comports with the constitutional protections addressed
in Anders. Furthermore, I am concerned that the approach advocated by
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the Majority provides protections that ultimately may run afoul of
constitutional principles. In this regard, I share the following view expressed
by Judge Colville in an unpublished concurring memorandum:
This Court is an error-correcting court. Save for a very
limited number of exceptions, the Court cannot raise issues sua
sponte, and it does not act as an appellant’s counsel. See
Commonwealth v. McKenna, 383 A.2d 174, 180 (Pa. 1978)
(“Implicit in this concept is another cardinal rule of appellate
jurisprudence in this state, viz., an appellate court is not to raise
sua sponte issues which it perceives in the record where, as here
those issues are not presented at the appeal level.”). In my
opinion, Anders situations do not constitute exceptions to this
cardinal rule.
When indigent criminal defendants’ appellate counsel do
not seek to withdraw but instead file advocates’ briefs, this Court
obviously does not search the record in order to determine
whether counsel could have raised any non-frivolous arguments.
It strikes me as fundamentally unfair (and potentially contrary to
concepts of due process and equal protection) to such
defendants that we would provide similarly[-]situated criminal
defendants whose appellate counsel do seek to withdraw with
extra protections. Indeed, the purpose of Anders is to provide
equal, not extra, representation to indigent defendants,
regardless of their counsel’s assessment of the merits of their
appeals.
Commonwealth v. Washington, 29 A.3d 846 (Pa. Super. 2011) (Colville,
J., concurring, unpublished memorandum at 5-6).1
For these reasons, until cases such as Martuscelli are explicitly
overruled, when counsel meets the requirements of Anders, I will review
1
Conversely, this Majority’s approach would appear to deprive defendants
whose counsel withdrew pursuant to Anders of the opportunity to litigate a
PCRA claim against Anders counsel, as this Court’s determination that there
were absolutely no non-frivolous issues counsel could have raised on direct
appeal will be the law of the case.
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the record in order to determine whether the issues raised in the Anders
brief are wholly frivolous. Here, I believe that counsel has substantially
complied with Anders and Santiago.2 I, therefore, will undertake a review
of the appeal to determine whether it is wholly frivolous.
Anders counsel presents one issue which may arguably support this
appeal, namely, “Did the trial court abuse its discretion when it imposed an
aggregate sentence of 23 to 46 months of total confinement to be followed
by four years of probation with respect to Appellant’s conviction of three
counts of retail theft?” Anders Brief at 5 (unnecessary capitalization
omitted). This issue challenges the discretionary aspects of Appellant’s
sentence.
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
2
In my view, the absence of the guilty plea transcript from the certified
record has no bearing on a determination as to whether counsel fulfilled his
duty to review the entire record for non-frivolous issues. As the Majority
notes, Appellant requested transcripts for that proceeding. That those
transcripts are not in the record does not mean they do not exist or that
counsel did not review them. Furthermore, the absence of those transcripts
is immaterial to a review of the only issue I believe is before the Court, i.e.,
the sentencing issue.
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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).
Appellant timely filed a notice of appeal; he preserved his issue in his
post-sentence motion for reconsideration of sentence; and the Anders brief
contains a concise statement of the reasons relied upon for allowance of
appeal. I, therefore, will examine whether the issue raises a substantial
question worthy of appellate review.
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. …
Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005)
(citations omitted).
The crux of Appellant’s claim in his post-sentence motion, and of the
issue that counsel believes may arguably support this appeal, is that the
consecutive nature of Appellant’s sentences, coupled with the trial court’s
failure to consider adequately the mitigating factors presented at the
sentencing hearing, renders his aggregate term of imprisonment harsh and
excessive.
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We initially observe that “this Court has held on numerous occasions
that a claim of inadequate consideration of mitigating factors does not raise
a substantial question for our review.” Commonwealth v. Disalvo, 70
A.3d 900, 903 (Pa. Super. 2013) (citation and quotation marks omitted).
This Court also has stated,
Under 42 Pa.C.S.[] § 9721, the [trial] court has discretion to
impose sentences consecutively or concurrently and, ordinarily,
a challenge to this exercise of discretion does not raise a
substantial question. The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only
the most extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010)
(citations omitted).
Here, Appellant pled guilty to stealing $295.64 of merchandise from
Walmart on September 19, 2011, to stealing $242.87 of merchandise from
WaWa on December 22, 2011, and to stealing $326.00 of merchandise from
Home Depot on May 31, 2012. For these convictions, Appellant received an
aggregate term of 23 to 46 months in prison followed by four years of
probation. Given the relatively minor and apparently non-violent nature of
Appellant’s criminal conduct, such a sentence arguably appears to be
excessive on its face. See Commonwealth v. Raven, 97 A.3d 1244,
1253 (Pa. Super. 2014) (“We are mindful that the key to resolving the
preliminary substantial question inquiry is whether the decision to sentence
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consecutively raises the aggregate sentence to, what appears upon its face
to be, an excessive level in light of the criminal conduct at issue in the
case.”) (citation and quotation marks omitted). Thus, out of an abundance
of caution, I will review on its merits whether the trial court’s decision to
sentence Appellant consecutively resulted in an abuse of discretion.
[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion. ... [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive terms,
our Court recently offered: An abuse of discretion may not be
found merely because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it.
Moury, 992 A.2d at 169-70 (citation omitted).
A review of the sentencing transcript reveals that the trial court
carefully considered how to fashion Appellant’s sentence. After stating that
it considered, inter alia, Appellant’s PSI report, the court discussed several
mitigating factors it evaluated in determining its sentence, including the
recent death of Appellant’s girlfriend. The court, however, also detailed
Appellant’s lengthy criminal history, which includes crimes such as robbery
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to determine whether any non-frivolous issues exist, this Court must
determine only whether the issues presented in an Anders brief are wholly
frivolous. See, e.g., Commonwealth v. Martuscelli, 54 A.3d 940,
947 (Pa. Super. 2012) (“We, therefore, turn to the issue presented in
counsel’s Anders brief to make an independent judgment as to whether the
appeal is, in fact, wholly frivolous.”); Commonwealth v. Garang, 9 A.3d
237, 240-41 (Pa. Super. 2010) (“As counsel has complied with all of the
requirements set forth above, we now proceed to an independent review of
the record and the issues counsel stated arguably support an appeal.”);
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (“As
counsel has complied with all of the requirements set forth above, we now
turn to the issues counsel stated arguably support an appeal.”); see also
Commonwealth v. Nischan, 928 A.2d 349, 353-54 (Pa. Super. 2007) (“If
this Court receives a petition to withdraw and a brief, both submitted in
accord with Anders, and if we are satisfied that counsel has complied with
the three technical Anders requirements, we will then undertake our own
independent examination of the issues raised in the Anders brief and in any
pro se brief to determine whether we agree with counsel’s assessment that
the appeal before us is frivolous.”).
In my view, the approach this Court has taken in cases such as
Martuscelli properly comports with the constitutional protections addressed
in Anders. Furthermore, I am concerned that the approach advocated by
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