J-S22034-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GERALD ANTHONY JOHNSON, :
:
Appellant : No. 1728 WDA 2014
Appeal from the Judgment of Sentence Entered September 11, 2014
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0000744-2014
BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED: June 3, 2015
Gerald Anthony Johnson (Appellant) appeals from the judgment of
sentence which followed his conviction for aggravated assault. Also before
the Court is the petition of Appellant’s counsel to withdraw 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 background underlying this matter can be summarized as follows.
Appellant shot one victim once and another victim several times. He was
charged with multiple crimes but pled guilty only to one count of aggravated
assault. The trial court sentenced Appellant to nine to twenty years in
prison. Appellant timely filed a post-sentence motion, which the trial court
denied. Appellant timely filed a notice of appeal. The trial court directed
*Retired Senior Judge assigned to the Superior Court.
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Appellant to comply with Pa.R.A.P. 1925(b). In response, Appellant’s
counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4), stating that
counsel intended to withdraw his representation of Appellant. Counsel then
filed with this Court a petition to withdraw and an Anders brief.
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-
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 expounded further upon the
requirements of Anders:
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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 substantially complied with the
above requirements.1 “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. Martuscelli, 54
A.3d 940, 947 (Pa. Super. 2012).
Counsel contends that a challenge to the discretionary aspects of
Appellant’s sentence is the only issue that arguably supports this appeal.
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
1
Appellant has not filed a response raising any additional points for our
consideration.
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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).
Appellant timely filed a notice of appeal. Appellant did not object to
his sentence at the sentencing hearing; however, he did seek a modification
of his sentence in his post-sentence motion. Appellant claimed that his
sentence was harsh and excessive, essentially due to the mitigating factors
Appellant presented at his sentencing hearing. Thus, Appellant seemed to
believe his sentence was excessive due to the inadequate consideration of
mitigating factors. While the Anders brief words Appellant’s challenge
somewhat differently than the issue raised in the post-sentence motion, we
conclude that Appellant has preserved his issue for appellate review.
Because the Anders brief contains a concise statement of the reasons
relied upon for allowance of appeal, we are left to determine whether
Appellant’s 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. …
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Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005)
(citations omitted).
“[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Disalvo, 70 A.3d at 903. Given that Appellant
shot two people and received a standard range sentence for one count of
aggravated assault, we can discern no reason why Appellant’s claim of an
excessive sentence due to inadequate consideration of mitigating factors
raises a substantial question worthy of this Court’s consideration.
For these reasons, we agree with counsel that this appeal is wholly
frivolous. Accordingly, we affirm the judgment of sentence and grant
counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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