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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID CARTER
Appellant No. 532 MDA 2015
Appeal from the Judgment of Sentence January 29, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002396-2014
BEFORE: BOWES, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 12, 2016
Appellant, David Carter, appeals from the judgment of sentence
entered in the Luzerne County Court of Common Pleas, following his guilty
pleas to two counts of endangering the welfare of children.1 Appellant’s
counsel, Matthew P. Kelly, Esq. (“Counsel”), seeks permission to withdraw
representation pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In his Anders
brief, Counsel presents the single issue of whether the trial court abused its
discretion in sentencing Appellant. We hold this issue is waived, affirm the
judgment of sentence, and grant Counsel’s petition to withdraw.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 4304.
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The facts underlying Appellant’s convictions are not pertinent to our
disposition. On December 8, 2014, the trial court accepted Appellant’s guilty
pleas and ordered a Pre-Sentence Investigation (“PSI”). During Appellant’s
January 29, 2015 sentencing hearing, the court noted that upon reviewing
the submissions of counsel and the PSI, a sentence within the standard
range of the applicable sentencing guidelines was appropriate. N.T.
Sentencing Hearing, 1/29/15, at 4-5. The court sentenced Appellant to
fourteen to twenty-eight months incarceration on count 1, to run concurrent
with fourteen to twenty-eight months’ incarceration on count 2. Appellant
did not object to his sentence at trial and the court advised him of his right
to file a post-sentence motion. Id. at 6-7.
While Appellant did not file a post-sentence motion, he did, acting pro
se, erroneously file a Notice of Appeal to the Commonwealth Court on
February 9, 2015. Once the Commonwealth Court transferred jurisdiction to
this Court, we directed the trial court to hold a hearing to ascertain whether
Appellant desired the assistance of counsel pursuant to Commonwealth v.
Grazier, 393 A.2d 335 (Pa. 1978). The trial court determined that
Appellant did indeed desire counsel and ultimately appointed instant
Counsel, as conflict counsel, and granted the public defender leave to
withdraw.
As directed by the court, Counsel filed a Pa.R.A.P. 1925(b) statement,
which raised one issue: whether the trial court abused its discretion when
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sentencing Appellant. The Commonwealth declined to file a brief. As noted,
Counsel now presents this Court with an Anders petition to withdraw from
representation and an Anders brief. Therefore, we begin by examining
whether Counsel complied with the requirements of Anders and Santiago.
This Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the appellant].
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
(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 worth of the court[’]s attention in addition to the
points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted). If counsel complies with these requirements, “we
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will make a full examination of the proceedings in the lower court and render
an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”
Id. at 883 n.7 (citation omitted).
Upon review of Counsel’s Anders petition and brief, we hold that he
has complied with the above requirements. In his petition, Counsel avers he
reviewed the record and believes there are no non-frivolous bases for
appeal. In his Anders brief, Counsel summarizes the underlying facts of
this case, presents the claim Appellant wishes to pursue, cites relevant law,
and discusses why he believes the claim is frivolous. As required, Counsel
sent a letter to Appellant, in which he stated he could not find any valid
bases for appealing, and advised Appellant he has the right to file an
appellate brief pro se or with private counsel. We find Counsel has complied
with the requirements of Anders and Santiago. See Orellana, 86 A.3d at
880. Appellant has elected not to file a pro se or counseled brief. We thus
examine the record to determine whether the issue on appeal is wholly
frivolous. See id. at 883 n.7
Appellant’s claim that the trial court abused its discretion when
imposing his sentence constitutes a challenge to the discretionary aspects of
sentencing. Commonwealth v. McAffee, 849 A.2d 270, 274 (Pa. Super
2004). “It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.” Commonwealth v.
Mastromarino, 2 A.3d 581,585 (Pa. Super. 2010).
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To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, 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[.]
Id. (citation omitted and emphasis added).
This Court has stated, “[t]o preserve an attack on the discretionary
aspects of sentence, an appellant must raise his issues at sentencing or in a
post-sentence motion. Issues not presented to the sentencing court are
waived and cannot be raised for the first time on appeal.” Commonwealth
v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted).
We may overlook waiver on this ground if the trial court failed to advise a
defendant of his right to file a post-sentence motion. Id. at 1252; see
Pa.R.Crim.P. 720.
In this case, Appellant made no objections regarding his sentence at
his hearing and did not file a post-sentence motion challenging his sentence.
The trial court did advise Appellant of his post-sentence rights. Thus, we
agree with Counsel that any appellate challenge to the discretionary aspects
of his sentence is waived. See Malovich, 903 A.2d at 1251. We therefore
do not reach the issue of whether Appellant’s claim raises a substantial
question. We have also reviewed the record for any other non-frivolous
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issues and have found none. Accordingly, we grant Counsel’s petition to
withdraw and affirm Appellant’s judgment of sentence.
Counsel’s petition to withdraw granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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