J-S25031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL ANTHONY SALTER,
Appellant No. 1653 WDA 2014
Appeal from the Judgment of Sentence September 9, 2014
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0000591-2014
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 28, 2015
Appellant, Michael Anthony Salter, appeals from the judgment of
sentence imposed after he pleaded guilty to one count each of possession of
a controlled substance and possession of drug paraphernalia.1 Counsel has
filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967), Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), on the basis
that the appeal is wholly frivolous. We grant counsel’s petition and affirm
Appellant’s judgment of sentence.
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.
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We take the following facts and procedural history from our
independent review of the record. On January 29, 2014, Officers Gould 2 and
Christopher J. Szoszorek were dispatched to the scene of a domestic dispute
between Appellant and his girlfriend, Naomi Dodd. Upon the officers’ arrival
at the scene, Dodd told them that she did not want to pursue charges for the
domestic dispute, but that she would like Appellant to leave the residence
for a while. Dodd consented to the officers’ entry into the apartment, at
which point they smelled marijuana. While looking for Appellant, the officers
found two potted marijuana plants and a digital scale. Thereafter, Appellant,
whose license was suspended, drove away from the residence in Dodd’s car.
On March 24, 2014, the Commonwealth filed an information against
Appellant charging him with one count each of possession with intent to
deliver a controlled substance, possession of a controlled substance, and
driving while operating privilege is suspended or revoked; and three counts
of possession of drug paraphernalia.3 On September 9, 2014, Appellant
pleaded guilty to one count each of possession of a controlled substance and
possession of drug paraphernalia. The Commonwealth nolle prossed the
remaining charges. The same day, the court sentenced Appellant to an
aggregate term of eighteen months of county probation and twenty hours of
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2
Officer Gould’s first name does not appear in the certified record.
3
35 P.S. §§ 780-113(a)(30) and (a)(16), 75 Pa.C.S.A. § 1543(a), and 35
P.S. § 780-113(a)(32), respectively.
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community service, plus fines and costs. (See Sentencing Order, 9/09/14,
at 1). Appellant timely appealed.4 Counsel filed an Anders brief on January
12, 2015, and a petition to withdraw on January 13, 2015, on the basis that
the appeal is wholly frivolous.
The standard of review for an Anders brief is well-settled:
Court-appointed counsel who seek to withdraw from
representing an appellant on direct appeal on the basis that the
appeal is frivolous 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) file a brief
referring to anything that arguably might 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 the
defendant of his or her right to retain new counsel or
raise any additional points that he or she deems
worthy of the court’s attention.
[T]his Court may not review the merits of the underlying
issues without first passing on the request to withdraw.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations
and most quotation marks omitted). Further, our Supreme Court ruled in
Santiago, supra, that Anders briefs must contain “a discussion of
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4
On October 10, 2014, the court ordered Appellant to file a Rule 1925(b)
statement. On October 30, 2014, counsel filed a statement of intent to file
an Anders/McClendon brief. See Pa.R.A.P. 1925(c)(4). On November 3,
2014, the trial court filed an opinion and order in which it stated that, in light
of counsel’s notice of intent to file an Anders/McClendon brief, no opinion
on the merits of Appellant’s appeal would issue. See Pa.R.A.P. 1925(a).
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counsel’s reasons for believing that the client’s appeal is frivolous[.]”
Santiago, supra at 360.
Instantly, counsel’s Anders brief and petition to withdraw substantially
comply with the applicable technical requirements and reveal that he has
made “a conscientious examination of the record [and] determined that the
appeal would be frivolous[.]” Lilley, supra at 997. Additionally, the record
establishes that counsel served Appellant with a copy of the Anders brief
and petition to withdraw, and a letter of notice which advised Appellant of
his right to retain new counsel or to proceed pro se and raise additional
issues to this Court.5 See id.; (see also Petition for Leave to Withdraw as
Counsel, 1/13/15, Exhibit 1, at 1). Further, the petition and brief cite “to
anything that arguably might support the appeal[.]” Lilley, supra at 997;
(see also Anders Brief, at 4-7). As noted by our Supreme Court in
Santiago, the fact that some of counsel’s statements arguably support the
frivolity of the appeal does not violate the requirements of Anders. See
Santiago, supra at 360-61.
Having concluded that counsel’s petition and brief substantially comply
with the technical Anders requirements, we must “conduct [our] own review
of the trial court’s proceedings and render an independent judgment as to
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5
Appellant has not filed a response to the petition to withdraw.
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whether the appeal is, in fact, wholly frivolous.” Lilley, supra at 998
(citation omitted).
The Anders brief raises one question for our review: “Whether the
Appellant’s sentence is manifestly excessive, clearly unreasonable and
inconsistent with the objectives of the Pennsylvania Sentencing Code[?]”
(Anders Brief, at 3).
Appellant’s issue challenges the discretionary aspects of his sentence,
which “must be considered a petition for permission to appeal.”
Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation
omitted).6
It is well-settled that:
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6
“[I]ssues challenging the discretionary aspects of a sentence must be
raised in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (citation
omitted); see also Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.
Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011).
In the case before us, Appellant did not file a post-sentence motion or
raise an argument at sentencing that challenged his sentence, thus normally
waiving his issue. (See N.T. Plea and Sentencing Hearing, 9/09/14, at 7-
17); see also Cartrette, supra at 1042. However, because counsel has
filed a petition to withdraw, we will not deem Appellant’s issue waived. See
Commonwealth v. Bishop, 831 A.2d 656, 659 (Pa. Super. 2003) (noting
that, “[p]ursuant to Anders, this Court must review the merits of all claims
set forth in an Anders brief in order to determine whether to grant counsel’s
petition to withdraw from representation, despite the fact that the issues
have been waived.”) (citation omitted).
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When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to
the inappropriateness of the sentence. Two requirements must
be met before we will review this challenge on its 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 a sentence. Second, the appellant
must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. That is,
[that] the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.
We examine an appellant’s Pa.R.A.P. 2119(f) statement to
determine whether a substantial question exists. Our inquiry
must focus on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.
Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (case
citations omitted) (emphases in original).
Here, Appellant has met the procedural requirement of including a
Rule 2119(f) statement. (See Anders Brief, at 4-6). Accordingly, we must
consider whether Appellant’s statement raises a substantial question. See
Hill, supra at 363-64.
Appellant’s Rule 2119(f) statement maintains that “the term of
probation ordered to be served by [him] conflicts with the objectives of
Section 9721(b)[]” where the court failed to consider mitigating factors such
as “his current and then-pending fatherhood, having graduated high school
and continuing vocational education in veterinary science and construction,
his employment at Berry Plastics, and the fact the controlled substance was
only two marijuana plants.” (Anders Brief, at 6-7 (record citation
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omitted)). An allegation that the court failed to consider all relevant factors
does not raise a substantial question. See Commonwealth v. Moury, 992
A.2d 162, 175 (Pa. Super. 2010) (“That the court refused to weigh the
proposed mitigating factors as Appellant wished, absent more, does not
raise a substantial question.”) (citations omitted). Accordingly, we conclude
that Appellant has failed to raise a substantial question.
Moreover, our own independent review reveals that the court did not
abuse its discretion7 when fashioning Appellant’s sentence. The court
considered the particular circumstances of Appellant’s case, including the
fact that he is a father; his age; his educational background and
employment status; his criminal history; and the sentencing guidelines,
including his prior record and offense gravity scores. (See N.T. Plea and
Sentencing Hearing, 9/09/14, at 13-17). Therefore, we agree with counsel
that Appellant’s issue on appeal is frivolous. See Lilley, supra at 998.
Additionally, we find no other non-frivolous issues that would merit relief.
Judgment of sentence affirmed. Counsel’s application to withdraw
granted.
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7
See Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (“Sentencing is a matter vested in
the sound discretion of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of discretion.”) (citation
omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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