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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LORENZO MILLS,
Appellant No. 58 WDA 2015
Appeal from the Judgment of Sentence Entered December 15, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002190-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2015
Appellant, Lorenzo Mills, appeals from the judgment of sentence of 52
to 104 months’ incarceration, imposed after he pled guilty to robbery.
Appellant seeks to raise one issue challenging the discretionary aspects of
his sentence. Additionally, his counsel, Emily M. Merski, Esq., seeks to
withdraw her representation of Appellant pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v Santiago, 978 A.2d 349 (Pa.
2009). After careful review, we affirm Appellant’s judgment of sentence and
grant counsel’s petition to withdraw.
On November 4, 2014, Appellant (who was then represented by Maria
Jean Krupicz, Esq., of the Erie County Office of the Public Defender) entered
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*
Retired Senior Judge assigned to the Superior Court.
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an open guilty plea to robbery, based on his involvement in a bank robbery
in Erie, Pennsylvania, during which he told an employee of the bank that he
had a gun. N.T. Plea, 11/4/14, at 9. On December 15, 2014, Appellant was
sentenced to a term of 52 to 104 months’ incarceration for that offense. He
did not file a post-sentence motion. However, Appellant filed a timely notice
of appeal. The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
On May 29, 2015, Attorney Merski, also an Erie County public
defender, entered her appearance with this Court on Appellant’s behalf. On
June 25, 2015, she filed with this Court a petition to withdraw from
representing Appellant. She has also filed an Anders brief, asserting that
Appellant’s sentencing issue is frivolous, and that he has no other non-
frivolous issues he could assert on appeal.
This Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief 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
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(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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[']s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In this case, Attorney Merski’s Anders brief complies with the above-
stated requirements. Namely, she includes a summary of the relevant
factual and procedural history, she refers to portions of the record that could
arguably support Appellant’s sentencing claim, and she sets forth her
conclusion that Appellant’s appeal is frivolous. She also explains her reasons
for reaching that determination, and supports her rationale with citations to
the record and pertinent legal authority. Attorney Merski also states in her
petition to withdraw that she has supplied Appellant with a copy of her
Anders brief, and she attaches a letter directed to Appellant in which she
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informs him of the rights enumerated in Nischan.1 Accordingly, counsel has
complied with the technical requirements for withdrawal. We will now
independently review the record to determine if Appellant’s sentencing issue
is frivolous, and to ascertain if there are any other non-frivolous issues
Appellant could pursue on appeal.
According to Attorney Merski, Appellant avers that the sentencing
court abused its discretion by failing to consider the factors set forth in 42
Pa.C.S. § 9721(b), and by imposing a sentence that “conflicts with the
objectives” of that provision. Anders Brief at 5. Section 9721(b) requires
the court to impose a sentence “consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S. § 9721(b).
Appellant’s argument implicates the discretionary aspects of his
sentence. See Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa.
Super. 2013). “[I]ssues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
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1
We note, however, that in her petition to withdraw, Attorney Merski states
that her Anders brief “addresses the issues involved in this case which
question the sufficiency and weight of the evidence and/or the other issues
of arguable merit in this case, if any.” Petition, 6/24/15, at 1 (unnumbered;
emphasis added). In light of the fact that Appellant pled guilty, we assume
that this sentence was a typographical error by counsel, and not an
indication that Appellant sought to raise sufficiency and weight claims on
appeal.
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trial judge during the sentencing proceedings.” Id. at 1042. “Absent such
efforts, an objection to a discretionary aspect of sentence is waived.” Id.
(citation omitted). Here, the record demonstrates that Appellant did not
assert the sentencing issue he raises herein at the time of sentencing, or in
a post-sentence motion. Consequently, his sentencing claim is waived, and
Appellant’s asserting this issue on appeal would be frivolous.
We note that Attorney Merski does not discuss the waiver of
Appellant’s sentencing issue in her Anders brief; instead, she assesses the
underlying merits of that claim and concludes it is frivolous. Had Appellant
not waived his sentencing challenge, we would agree with Attorney Merski’s
assessment for the following reasons.
It is well-settled that appeals of discretionary aspects of a
sentence are not reviewable as a matter of right.
Commonwealth v. McNear, 852 A.2d 401, 407 (Pa. Super.
2004). Before a challenge to the sentence will be heard on the
merits, an appellant, in order to invoke the Court's jurisdiction,
must set forth in his brief a separate and concise statement of
reasons relied upon in support of his appeal. Pa.R.A.P. 2119(f);
see Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.
Super. 2003).
[W]here the appellant's Rule 2119(f) statement sufficiently
articulates the manner in which 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, [ ] such a
statement [will] be deemed adequate to raise a substantial
question so as to permit a grant of allowance of appeal of
the discretionary aspects of the sentence.
Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617,
627 (2002) (plurality) (citations omitted).
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Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006).
Here, Attorney Merski has included a Rule 2119(f) statement in her
Anders brief, asserting that Appellant’s claim that the sentencing court
failed to consider the 9721(b) factors in fashioning his sentence constitutes
as substantial question for our review. Anders Brief at 5. We agree. See
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).
However, we would conclude that Appellant’s argument is frivolous, as
the record clearly demonstrates that the court considered the required
factors and imposed a sentence within the standard range of the Sentencing
Guidelines. At the sentencing proceeding, defense counsel informed the
court of Appellant’s age, family history, background of military service,
education and work history, and the circumstances of his prior criminal
record. N.T. Sentencing, 12/15/14, at 6-8. Counsel also discussed
Appellant’s drug addiction and mental health issues. Id. at 7-10. Defense
counsel informed the court that “[t]he standard range guidelines … are 48 to
60 months” and requested that the court impose a “low end standard range
sentence.” Id. at 9. The court then heard from Appellant, who apologized
for his actions. Id. 10-11. The Commonwealth also presented its argument
that, in light of Appellant’s criminal history and the seriousness of his current
offense, the court should impose a standard range sentence in the “higher
end.” Id. at 11.
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After hearing this testimony, the court stated that it “considered the
presentence investigative report in its entirety,” as well as “the Pennsylvania
Sentencing Code and all its factors, the guidelines, and the various
statements” made to the court that day. Id. at 12. The court emphasized
that Appellant committed a “very serious offense” which impacted the
victim, who was employed at the bank that Appellant robbed. Id. at 12.
The court also stated that it “considered [Appellant’s] background and
rehabilitative needs,” his “significant prior [criminal] history,” and his “drug
and alcohol problem….” Id. at 12-13. The court acknowledged that
Appellant’s crime “may well have been fueled by [his] drug addiction[,]” but
reasoned that that fact “doesn’t excuse it….” Id. at 13. The court then
stated that Appellant has “rehabilitative potential” but must “address … [his]
drug usage.” Id. The court also noted that Appellant entered a guilty plea,
which “saved the victim from having to testify, and the Commonwealth from
having to go through the cost of a trial.” Id. “Based on all of those factors,”
the court imposed a minimum sentence within the standard range, and only
four months above that which defense counsel requested.
This record convinces us that the court considered the protection of
the public, the gravity of Appellant’s offense, his rehabilitative needs, and
other pertinent factors in fashioning a reasonable, standard range sentence.
Therefore, even had Appellant preserved his discretionary aspects of
sentencing challenge, we would agree with Attorney Merski that it is
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frivolous. Additionally, our review of the record reveals no other non-
frivolous issues Appellant could assert on appeal.2 Therefore, we affirm his
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
P.J.E. Ford Elliott joins this memorandum.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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2
We note that on August 24, 2015, Appellant filed a pro se brief with this
Court. Therein, he presents the exact same claims recently deemed
meritless by this Court in Commonwealth v. Stultz, 114 A.3d 865 (Pa.
Super. 2015), namely that: (1) “because the 1968 Pennsylvania Constitution
contains no savings clause, he was prosecuted under criminal statutes that
were legally inoperative upon ratification of that constitution[;]” (2) “since
there is no express state constitutional provision providing authority to enact
a state crimes code, the trial court lacked jurisdiction[;]” and (3) “he was
prosecuted under statutes that lacked an enacting clause.” Id. at 873.
Based on our holding in Stultz, it is frivolous for Appellant to assert these
same arguments herein.
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