J-S35043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE MICHAEL JONES,
Appellant No. 2959 EDA 2014
Appeal from the Judgment of Sentence August 15, 2014
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0006645-2012
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 23, 2015
Appellant, Andre Michael Jones, appeals from the judgment of
sentence imposed on August 15, 2014, following his open guilty plea to rape
of a child and involuntary deviant sexual intercourse (IDSI) with a child.1
Appellant’s counsel has filed a brief and a petition to withdraw under Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), alleging that the appeal is wholly frivolous. We affirm
the judgment of sentence and grant counsel’s request to withdraw.
On January 8, 2013, the Commonwealth filed a criminal information
charging Appellant with ten counts of rape of a child, ten counts of statutory
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3121(c) and 3123(b), respectively.
J-S35043-15
sexual assault, thirty counts of IDSI, thirty counts of aggravated indecent
assault, and one count each of endangering the welfare of a child and
corruption of minors. (See Information, 1/08/13, at unnumbered pages 1-
11). The charges arose from Appellant’s over five-year sexual abuse,
beginning when she was nine years old, of his stepdaughter. (See id.; see
also Trial Court Opinion, 12/08/14, at 1-2).
On March 12, 2014, the date scheduled for trial, after discussion with
counsel, Appellant entered an open guilty plea to one count of rape of a child
and one count of IDSI. (See N.T. Guilty Plea, 3/12/14, at 3-6). In return
for Appellant’s guilty plea, the Commonwealth agreed not to seek any
mandatory minimum sentences and to nol pros the remaining counts at the
time of sentencing. (See id. at 6-7, 20). Appellant signed both a written
guilty plea colloquy and a special addendum to the guilty plea for sex
offenders. (See Written Guilty Plea, 3/12/14, at 9; Addendum to Guilty Plea
Colloquy, 3/12/14, at unnumbered page 7).
At the plea hearing, Appellant expressed his satisfaction with counsel’s
stewardship and stated that he was pleading guilty of his own free will.
(See N.T. Guilty Plea, 3/12/14, at 9, 14, 19). He acknowledged that he had
signed the written plea colloquy and addendum, and agreed that the plea
was an open guilty plea. (See id. at 8-10, 19). Appellant further agreed
that he was guilty of the charges, and that he understood the possible
maximum sentencing exposure. (See id. at 13, 16).
-2-
J-S35043-15
At the sentencing hearing, on August 15, 2014, following a review of
the Pre-Sentence Investigation Report (PSI), the victim read a letter to the
court and the Commonwealth presented a victim impact statement from the
victim’s mother. (See N.T. Sentencing, 8/15/14, at 3, 6-12). Appellant
presented the testimony of a friend, one of his sisters, his brother, and
submitted a letter from a second sister. (See id. at 12-23). Appellant also
testified on his own behalf. (See id. at 24). The trial court imposed a
sentence in the standard range of not less than twenty nor more than forty
years of incarceration on the charge of rape of a child. (See id. at 41). On
the charge of IDSI, the trial court sentenced Appellant to ten years of
probation; Appellant was to serve it consecutively to the sentence for rape of
a child. (See id.).
On August 22, 2014, Appellant filed a motion for reconsideration of
sentence claiming that, during its argument at sentencing, the
Commonwealth “made references to numerous allegations regarding the
underlying crimes that were [not] specifically admitted to by [Appellant] at
his guilty plea. . . .” (Motion for Reconsideration of Sentence, 8/22/14, at
unnumbered pages 1-2). The trial court denied the motion for
-3-
J-S35043-15
reconsideration on September 15, 2014. (See Order, 9/15/14, at 1). The
instant, timely appeal followed.2
On appeal, the Anders brief raises the following questions for our
review:
Was Appellant’s guilty plea to rape of a child and IDSI with
a child not knowingly, intelligently, and voluntarily made as a
result of the ineffective representation of his trial counsel?
Did the trial court abuse its discretion when it sentenced
Appellant to a term of twenty (20) to forty (40) years in prison
for the offence of rape of a child?
(Anders Brief, at 5).
Appellant’s counsel has petitioned for permission to withdraw and has
submitted an Anders brief, which is procedurally proper for counsel seeking
to withdraw on direct appeal. See Anders, supra at 744. Court-appointed
counsel who seeks to withdraw from representing an appellant on direct
appeal on the basis that the appeal is frivolous 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.
____________________________________________
2
Appellant has complied with all the requirements of Pa.R.A.P. 1925(b).
(See Concise Statement of Errors Complained of on Appeal, 10/28/14, at
unnumbered pages 1-5). The trial court filed an opinion on December 8,
2014. See Pa.R.A.P. 1925(a).
-4-
J-S35043-15
Santiago, supra at 361. When we receive an Anders brief, we first rule on
the petition to withdraw and then review the merits of the underlying issues.
See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).
In addition, “[p]art and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or misstated.”
Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).
In the instant matter, counsel has substantially complied with all the
requirements of Anders and Santiago. Specifically, he has petitioned this
Court to withdraw because “[t]here [are] no non-frivolous issues to be
addressed[.]” (Petition for Leave of Court to Withdraw as Appellate Counsel,
3/15/15, at unnumbered page 3). In addition, after his review of the record,
counsel filed a brief with this Court that provides a summary of the
procedural history and facts with citations to the record, refers to any facts
or legal theories that arguably support the appeal, and explains why he
believes the appeal is frivolous. (See Anders Brief, at 6-32). Lastly, he has
attached, as an exhibit to his petition to withdraw, a copy of the letter sent
to Appellant giving notice of his rights, and including a copy of the Anders
brief and the petition. (See Petition for Leave of Court to Withdraw as
Appellate Counsel, 3/15/15, at unnumbered pages 5-6); see also
Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005).
Appellant has not filed a response. Because counsel has substantially
complied with the dictates of Anders, Santiago, and Millisock, we will
-5-
J-S35043-15
examine the issues set forth in the Anders brief that counsel believes have
arguable merit. See Garang, supra at 240-41.
The Anders brief first alleges that Appellant’s guilty plea was not
knowing, intelligent, and voluntary. Specifically, the Anders brief claims
that Appellant received ineffective assistance of plea counsel who assured
him that he would receive a lesser sentence. (See Anders Brief, at 21).
However, this claim is premature.
As counsel acknowledges in the Anders brief, (see Anders Brief, at
22), Appellant must raise claims of ineffective assistance of counsel on
collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.
2013). Accordingly, we dismiss this claim without prejudice for Appellant to
seek collateral review under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, in accordance with the Pennsylvania Supreme
Court’s opinion in Commonwealth v. Grant, 813 A.2d 726, 737 (Pa. 2002).
See Holmes, supra at 576.
The Anders brief next challenges the discretionary aspects of
Appellant’s sentence.3 (See Anders Brief, at 25-32). The right to appeal
the discretionary aspects of a sentence is not absolute. See
____________________________________________
3
We note that Appellant preserved his discretionary aspects of sentence
claim by filing timely post-sentence motions for reconsideration of sentence.
(See Motion for Reconsideration of Sentence, 8/22/14, at unnumbered
pages 1-2); see also McAfee, infra at 275.
-6-
J-S35043-15
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004). When an appellant challenges the
discretionary aspects of the sentence imposed, he must present “a
substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
an appellant’s Rule 2119(f) statement meets these prerequisites, we have
found that a substantial question exists. See Commonwealth v. Goggins,
748 A.2d 721, 727 (Pa. Super. 2000), appeal denied, 759 A.2d 920 (Pa.
2000). “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.” Id. (emphases in original).
Here, counsel has included a Rule 2119(f) statement in the Anders
brief. (See Anders Brief, at 19-20). It states that the trial court failed to
consider mitigating circumstances such as Appellant pleading guilty to spare
the victim from having to testify and the strong family support displayed at
the sentencing hearing. (See id.). It also claims that, at sentencing, the
-7-
J-S35043-15
Commonwealth improperly argued “facts relating to cases for which he was
not convicted in arguing for a sentence at the top of the standard range . . .
.” (Id. at 20). However, in his Rule 2119(f) statement, the Anders brief
concedes that Appellant’s sentence was in the standard range of the
Sentencing Guidelines. (See id. at 19). It also acknowledges that the trial
court had the benefit of a PSI, and that such sentences “are presumed to be
reasonable.” (Id. at 31); see also Commonwealth v. Moury, 992 A.2d
162, 171 (Pa. Super. 2010).
Initially, we hold that Appellant waived his claim that the sentencing
court did not properly consider mitigating circumstances. Appellant did not
raise this claim in his post-sentence motion, in which he only raised the
issue that the Commonwealth “made references to numerous allegations
regarding the underlying crimes that were [not] specifically admitted to by
[Appellant] at his guilty plea. . . .” (Motion for Reconsideration of Sentence,
8/22/14, at unnumbered pages 1-2). An appellant waives any discretionary
aspects of sentence issue not raised in a post-sentence motion; further, an
appellant cannot raise an issue for the first time on appeal. 4 See
____________________________________________
4
We note that Appellant did raise the issue regarding the failure to consider
mitigating circumstances in his Rule 1925(b) statement. (See Concise
Statement of Errors Complained of on Appeal, 10/28/14, at unnumbered
pages 1-5). However, an appellant cannot raise issues for the first time in a
Rule 1925(b) statement. See Commonwealth v. Coleman, 19 A.3d 1111,
1118 (Pa. Super. 2011) (issues raised for first time in Rule 1925(b)
statement are waived).
(Footnote Continued Next Page)
-8-
J-S35043-15
Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003), appeal
denied, 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put
sufficient reasons to justify sentence on record waived where issue was not
raised in post-sentence motion); see also Pa.R.A.P. 302(a);
Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007),
appeal denied, 956 A.2d 432 (Pa. 2008) (new legal theories cannot be raised
for first time on appeal). Thus, Appellant did not preserve this claim for our
review and we deem it waived.5
The Anders brief also alleges that the trial court improperly allowed
the Commonwealth to present evidence of uncharged crimes. (See Anders
Brief, at 28). However, as it acknowledges, (see id.), this Court has long
held that such a claim does not raise a substantial question. See
Commonwealth v. Frank, 577 A.2d 609, 622 (Pa. Super. 1990), appeal
_______________________
(Footnote Continued)
5
Even if Appellant had preserved the claim, it is well settled that a claim
“that a sentencing court failed to consider or did not adequately consider
certain factors does not raise a substantial question that the sentence was
inappropriate.” Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.
Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009) (citation omitted).
Further, “[w]here the sentencing court had the benefit of a presentence
investigation report (‘PSI’), we can assume the sentencing court was aware
of relevant information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.”
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013), appeal
denied, 76 A.3d 538 (Pa. 2013) (quotation marks and citations omitted).
Thus, Appellant’s claim that the sentencing court abused its discretion by
failing to consider mitigating factors does not present a substantial question.
Had Appellant preserved the claim, we would have declined to review the
issue.
-9-
J-S35043-15
denied, 584 A.2d 312 (Pa. 1990) (reaffirming judge may consider uncharged
criminal activity in determining appropriate sentence; claim did not raise
substantial question).
Moreover, even if we were to find that the claim raised a substantial
question, we would find the claim waived. The Anders brief fails to specify
which arguments made by the Commonwealth were allegedly improper,
does not to cite to the record, and neglects to point to any evidence that the
trial court relied upon any uncharged crimes in imposing sentence. (See
Anders Brief, at 28-29). We note that it is Appellant’s responsibility to
develop arguments in his brief; where he has not done so we will find the
claim waived. See In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012), appeal
denied, 56 A.3d 398 (Pa. 2012).
Appellant’s issues do not merit relief. Further, this Court has
conducted an independent review of the record as required by Anders and
Santiago and finds that no non-frivolous issues exist.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judges Mundy and Olson concur in the result.
- 10 -
J-S35043-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
- 11 -