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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JULIE RENEE WINTERS
Appellant No. 1184 WDA 2014
Appeal from the Judgment of Sentence entered February 20, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0001796-2013
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 27, 2015
Appellant, Julie Renee Winters, appeals from the judgment of sentence
imposed on February 20, 2014 in the Court of Common Pleas of Erie County
following her conviction for simple assault, 18 Pa.C.S.A. § 2701(a)(3). In
the brief filed by her counsel in accordance with Anders v. California, 386
U.S. 938 (1969), as refined by Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009), Appellant contends her sentence was manifestly excessive and
not individualized. Her counsel concurrently filed a petition for leave to
withdraw. For the reasons that follow, we grant counsel’s petition for leave
to withdraw and affirm Appellant’s judgment of sentence.
On January 2, 2014, Appellant entered a no contest plea to a charge of
simple assault stemming from a “love triangle” incident in which she waved
a knife in front of a man and another woman in a driveway in Wayne
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Township in Erie County. Notes of Testimony, Plea Hearing, 1/2/14, at 8-9;
12. On February 20, 2014, the trial court imposed a sentence of nine to 24
months at the Pennsylvania Department of Corrections. A motion to
reconsider sentence filed on March 3 was denied the following day. A timely
notice of appeal was filed on March 21, 2014 but was discontinued at the
request of plea counsel. By order dated July 16, 2014, the trial court
granted Appellant’s motion to reinstate her appellate rights and directed
Appellant to file an appeal within ten days of the order. Appellant complied,
filing the instant appeal on July 21, 2014. The trial court subsequently
directed Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
On August 11, 2014, appointed appellate counsel filed a statement of
intent to file an Anders/McClendon brief1 in lieu of a 1925(b) statement.
In response, the trial court issued a one-sentence Memorandum Opinion
dated August 14, advising there were no issues to address in light of
counsel’s statement of intent to file an Anders brief.
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1
Although the title of counsel’s petition suggested she would file an
Anders/McClendon brief, the brief filed with this Court appropriately refers
to Commonwealth v. Santiago, supra, requiring that counsel state the
reasons for concluding the appeal is frivolous, rather than comply with the
standard set forth in Commonwealth v. McClendon, 434 A.2d 1185 (Pa.
1981), abrogated by Santiago.
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On October 30, 2014, appellate counsel filed her Anders brief with
this Court along with a petition for leave to withdraw, including a letter to
Appellant advising her, inter alia, of the right to retain other counsel or
pursue her claims pro se. By letter dated November 3, 2014, the
Commonwealth advised this Court of its intent not to file a responsive brief.
Appellant filed a pro se response to the Anders brief by letter dated January
27, 2015 and docketed on February 2, 2015.
In her Anders brief, counsel presents one issue that arguably
supports the appeal. Specifically, she questions whether “[t]he sentence in
this case was manifestly excessive and clearly unreasonable, and not
individualized as required by law, in that it failed to take into account the
fact that [Appellant] had children to care for.” Appellant’s Brief at 1.
We may not address the merits of Appellant’s issue without first
reviewing the request to withdraw. Commonwealth v. Rojas, 874 A.2d
638, 639 (Pa. Super. 2005). As this Court recognized in Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in
Santiago did not change the procedural requirements for requesting
withdrawal from representation.
Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous;
2) furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel
or raise additional arguments that the defendant deems worthy
of the court's attention.
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Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.
Super. 2009)).
We conclude counsel has satisfied the procedural requirements set
forth in Anders. In the petition to withdraw, counsel explains her
conclusion that, based on a review of the case, there are no meritorious
issues to be raised on Appellant’s behalf and that proceeding with the case
would be frivolous. In addition, counsel furnished a copy of the appellate
brief to Appellant and advised Appellant of her right to retain new counsel or
act on her own behalf to raise additional arguments or points for this Court’s
consideration.
Having concluded counsel satisfied the procedural requirements of
Anders, we must ascertain whether the brief satisfied the substantive
mandates prescribed in Santiago. In Santiago, our Supreme Court
announced:
[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 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.
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In the Anders brief, counsel has included a statement of the case that
includes a procedural history of the case. Counsel has satisfied the first
requirement.2
The second required element of an Anders brief is reference to
anything in the record that counsel believes arguably supports the appeal.
Here, counsel suggests that the trial court failed to consider mitigating
circumstances when sentencing Appellant, including the fact appellant has
three minor children and the fact Appellant and her victim subsequently
reconciled their differences. Appellant’s Brief at 3. Counsel has satisfied the
second Anders requirement.
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2
We are constrained to admonish counsel for inaccuracies in the statement
of the case, including that Appellant entered a guilty plea when in fact she
entered a no contest plea; that “Mr. Winters swung a knife toward Isabelle
Wells and another woman in a driveway” when in fact Ms. Winters swung a
knife toward Isabelle Wells and a man; and that Appellant was sentenced to
9 to 14 months in prison when she actually was sentenced to a term of nine
to 24 months. While some of these inaccuracies may simply be
typographical errors, they are nevertheless unwarranted errors that cannot
be justified. However, at the same time, because they are not so egregious
as to defeat the requirement for a summary of facts and procedural history
of the case, we shall consider that requirement satisfied.
We also note, for future filings, that counsel should understand that
the Pa.R.A.P. 2111(a)(3) briefing requirement for a statement of the scope
and standard of review does not call for counsel to define scope and
standard of review. Rather, the rule anticipates that counsel will include a
statement of the scope and the standard of review to be applied to the
matters before this Court on appeal.
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Counsel also has satisfied the third element of Anders, stating her
conclusion that the appeal is frivolous. Appellant’s Brief at 6. Finally,
counsel provided her reasons for concluding the appeal is frivolous. Counsel
included reference to facts of record and citation to case law addressing the
trial court’s discretion in imposing sentences, noting the trial court’s concern
with Appellant’s prior history, which included not only an adjudication as a
juvenile but also several convictions for assault, terroristic threats and
related offenses as an adult, along with five summary offenses since 2011.3
Appellant’s Brief at 3-6. Moreover, counsel recognizes the trial court’s
pronouncement that the sentence imposed was in the low end of the
standard range in light of Appellant’s acceptance of responsibility for the
events. Appellant’s Brief at 6; Notes of Testimony, Sentencing, 2/20/14, at
8. Counsel has satisfied the fourth and final element of the Anders test.
Having determined the procedural and substantive requirements of
Anders are satisfied, we must conduct our own independent review of the
record to determine if the issue identified in this appeal is, as counsel
asserts, wholly frivolous, or if there are any other meritorious issues present
in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)
(“[T]he court—not counsel—then proceeds, after a full examination of all the
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3
Appellant was 25 years of age at the time of sentencing. Notes of
Testimony, Sentencing, 2/20/14, at 4.
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proceedings, to decide whether the case is wholly frivolous. If it so finds, it
may grant counsel’s request to withdraw.”).
Again, the issue raised by Appellant involves the sentence imposed by
the trial court following Appellant’s no contest plea. Appellant contends the
sentence is “manifestly excessive and clearly unreasonable, and not
individualized as required by law, in that it failed to take into account the
fact that [Appellant] had children to care for.” Appellant’s Brief, at 1. As
such, Appellant presents a challenge to the discretionary aspects of her
sentence.
In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this
Court reiterated:
Appellant is not entitled as of right to a review of such a
challenge. Our jurisdiction over a claim regarding the
discretionary aspects of sentence must be established as follows:
We conduct a four-part analysis to determine: (1) whether
appellant has filed 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. § 9781(b).
Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (internal quotation marks, citations and modifications
omitted)).
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Appellant filed a timely notice of appeal on July 21, 2014, following the
July 16 order reinstating her direct appeal rights. Further, she filed a timely
motion for reconsideration of sentence contending the trial court failed to
give to proper weight to her rehabilitative potential, the fact she has three
minor children, and evidence that she and her victim reconciled their
differences and were on friendly terms. Motion for Reconsideration, 3/3/14,
at 1. In her brief filed with this Court, she included a Pa.R.A.P. 2119(f)
statement of the reasons relied upon for allowance of appeal with regard to
the discretionary aspects of sentence. Having satisfied the first three
elements of the test, we turn to the fourth element, whether there is a
substantial question under 42 Pa.C.S.A. § 9781(b) that the sentence
appealed from is not appropriate.
In Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (plurality)
our Supreme Court held a claim that a sentence within statutory limits is
manifestly excessive can raise a substantial question. Id. at 627-28. “It is
also true that a claim of a harsh or excessive sentence can, at times, raise a
substantial question.” Commonwealth v. Kalichak, 943 A.2d 285, 292
(Pa. Super. 2008) (citing Commonwealth v. Malovich, 903 A.2d 1247,
1252 (Pa. Super. 2006)). “In general, an appellant raises a substantial
question by advancing a plausible claim that the sentencing court's actions
were inconsistent with a specific provision of the sentencing code or were
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contrary to the fundamental norms underlying the sentencing process.”
Malovich, 903 A.2d at 1252 (citation omitted).
There is no indication in the record before us that the trial court failed
to consider Appellant’s personal circumstances, ignored mandatory
sentencing factors under 42 Pa.C.S.A. § 9721(b), or in any other way
imposed a sentence that can be characterized as harsh or excessive in
relation to the underlying circumstances. Appellant has not advanced a
plausible claim that the trial court’s actions were inconsistent with any
provision of the sentencing code or were contrary to the fundamental norms
underlying the sentencing process. As the trial court explained:
The [c]ourt has considered the Pennsylvania Sentencing Code,
the presentence report and the Pennsylvania Guidelines on
Sentencing. The [c]ourt has also considered the statements of
defense counsel, [Appellant], and the attorney for the
Commonwealth. The [c]ourt has considered [Appellant’s] age,
her background, character, and rehabilitave needs; the nature
and circumstances and seriousness of the ofense and the
protection of the community.
[Appellant] has come forward and plead guilty and accepted
responsibility for her actions, and that is to her credit.
The [c]ourt is, as the district attorney was, concerned because
[Appellant’s] prior history goes back 12 years to when she was a
juvenile and includes simple assault, adjudication; terroristic
threats, adjuciation; another simple assault, another simple
assault, another terroristic threats, another aggravated assault,
a simple assault, another simple assault, an intimidation of
witness or victim; and then one, two, three, four – five summary
offenses since 2011. And then this charge. This has been going
on for a long time. It’s been going on for a long time. And even
after this offense, you were convicted of harassment before the
ditrict justice. . . . You did another crime after you committed
this crime. And I can’t overlook all of this. And then you’re
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before the [c]ourt for another assault. . . . You had an
opportunity under juvenile supervisions. You’ve also been
sentenced to the Erie County prison, you did 11 and a half to 23
months for simple assault back in 2007, which is the same
charge you’re here before the court now. I gave you a break in
2008 by giving you probation, an intermediate punishment, for
another simple assault and intimidation of witnesses. And after
serving all that time in the county jail, probation, parole, your
punishment, here you are back before the [c]ourt on another
simple assault.
Plus since that time you have committed five summary offenses;
disorderly conduct, harassment, disorderly conduct, disorderly
conduct, harassment. I don’t know when you spend any time
with your kids because you’re out committing crimes all the
time. So I don’t know what to do here but I can tell you it’s got
to stop. . . . The [c]ourt will order the following sentence, which
is from the low end of the standard range of the sentencing
guidelines because [Appellant] has accepted responsibility:
[Appellant] will be ordered to pay the costs of prosecution, pay a
fine of $50. She will be ordered incarcerated, a minimum period
of which will be nine months and a maximum period which will
[be] 24 months. She is not RRRI eligible. And that is a state
sentence.
Notes of Testimony, Sentencing, 2/20/14, at 6-9.
It is obvious the trial court was aware of and carefully considered the
facts, including Appellant’s background and the “mitigating circumstances”
Appellant suggests were not taken into consideration. It is further obvious
that the trial court made an intelligent and informed decision in crafting
Appellant’s sentence. There is no hint of bias, partiality, prejudice, ill-will or
manifest unreasonableness on the part of the trial court. Therefore, we find
no abuse of discretion. Nor do we find any other meritorious issue present
in this case. Her appeal is, as counsel asserted, wholly frivolous. Therefore,
we shall grant counsel’s petition for leave to withdraw.
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Appellant’s response to the Anders brief does not alter our
determination. In her response, Appellant notes she and her victim
reconciled their differences since the incident leading to this conviction. She
also claims evidentiary items provided to plea counsel are now missing.
Further, she contends her sentence was unreasonable “because there was
no knife.” Appellant’s Pro Se Response to Anders Brief, 1/27/15, at 1.
Nothing in Appellant’s letter suggests that the sentence imposed was
manifestly excessive or violated sentencing guidelines.
Appellant also uses her response to highlight some of her
accomplishments achieved during her incarceration, including receipt of her
G.E.D., completion of programs in victim awareness and money
management, and pursuit of programs in violence prevention and grief
sharing. Id. at 2. She contends she wants to pursue schooling and to work
with cancer patients after experiencing the pain of her own father’s death
from cancer. She expresses her desire to live a productive life and promises
her “name will not appear in the system ever again.” Id. We commend
Appellant for working toward future goals and her desire to lead a
productive, law-abiding life. However, in terms of her past record and the
sentence she is currently serving, Appellant has not provided any support for
her claim of an excessive sentence or one that is not individualized.
Therefore, we affirm her judgment of sentence.
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Counsel’s petition for leave to withdraw is granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
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