J-S20022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL WOLFORD,
Appellant No. 1097 WDA 2015
Appeal from the Judgment of Sentence of June 12, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002161-2014
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 15, 2016
Appellant, Michael Wolford, appeals from the judgment of sentence
entered on June 12, 2015, as made final by the denial of post-sentence
motions on July 6, 2015, following his guilty plea to third-degree murder,
robbery, conspiracy, and carrying a firearm without a license.1 In this direct
appeal, Appellant’s court-appointed counsel filed both a petition to withdraw
as counsel and an accompanying brief pursuant to Anders v. California,
386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We conclude that Appellant’s counsel complied with the procedural
requirements necessary for withdrawal. Moreover, after independently
reviewing the record, we conclude that the instant appeal is wholly frivolous.
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1
18 Pa.C.S.A. §§ 2502(c), 3701(a)(1)(i), 903(c) and 6106(a)(1),
respectively.
*Retired Senior Judge assigned to the Superior Court.
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We therefore grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
We summarize the factual and procedural history of this case as
follows. On January 8, 2014, police responded to a shooting in a parking lot
at the Waterfront, a business district in Homestead, Pennsylvania. Upon
further investigation, police learned from witnesses that Appellant and two
co-defendants planned a drug deal and, during that transaction, Appellant
shot and killed the victim. On June 12, 2015, Appellant and the
Commonwealth appeared before the trial court to propose a negotiated plea
agreement. Appellant agreed to plead guilty to third-degree murder, as well
as the additional aforementioned charges. The parties' plea agreement also
included a negotiated aggregate sentence of 30 to 60 years of
imprisonment. The parties placed these terms on the record. After a
colloquy with Appellant, the trial court accepted the negotiated plea and
sentence and entered judgment of sentence by order dated June 12, 2015.
This timely appeal resulted.2
On appeal, Appellant’s counsel included one issue in his Anders brief:
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2
Appellant filed post-sentence motions that the trial court denied on July 6,
2015. Appellant filed a timely notice of appeal on July 20, 2015. On July
21, 2015, the trial court ordered defense counsel to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant’s counsel complied on July 23, 2015 by filing a concise statement
alleging a frivolous appeal pursuant to Pa.R.A.P. 1925(c)(4). The trial court
issued an opinion conforming to Pa.R.A.P. 1925(a) on November 3, 2015.
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Whether the trial court erred and/or abused its discretion by
imposing a harsh sentence and not granting a motion to
reconsider sentence, when Appellant and the
Commonwealth after a lengthy negotiation session asked
the trial court to sentence Appellant to an aggregate
sentence of thirty (30) to sixty (60) years of incarceration
for third-degree murder and other non-homicide charges,
when the facts of the case overwhelmingly support a
conviction of second-degree murder which, alone, would
have resulted in a life sentence without the possibility of
parole and the trial court actually accepted the guilty plea
and sentenced Appellant to the negotiated sentence?
Anders Brief at 6.
Before reviewing the merits of this appeal, however, this Court must
first determine whether counsel fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v.
Washington, 63 A.3d 797, 800 (Pa. Super. 2013). To withdraw under
Anders, court-appointed counsel must satisfy certain technical
requirements. First, counsel must “petition the court for leave to withdraw
and state that after making a conscientious examination of the record, he
has determined that the appeal is frivolous.” Commonwealth v.
Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an
Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and
facts, with citations to the record;
(2) refer[s] to anything in the record that counsel believes
arguably supports the appeal;
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(3) set[s] forth counsel’s conclusion that the appeal is
frivolous; and
(4) state[s] 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.
Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and “advise[] him of his right to retain new counsel, proceed pro se or raise
any additional points that he deems worthy of the court’s attention, and
attach[] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation
omitted).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5 (citation
omitted). It is only when both the procedural and substantive requirements
are satisfied that counsel will be permitted to withdraw. In the case at bar,
counsel has met all of the above procedural obligations.3 We now turn to
the issue raised in the Anders brief.
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3
Appellant has not filed a response to counsel’s Anders brief.
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The Anders brief contends that the trial court abused its discretion by
imposing a harsh and excessive sentence. This claim does not challenge the
trial court’s acceptance of Appellant’s guilty plea or the legality of his
sentence. Rather, Appellant’s claim challenges the discretionary aspects of
his sentence. See Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.
Super. 2015).
“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.” Commonwealth v. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has 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, 42 [Pa.C.S.A.]
§ 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
As previously noted, Appellant filed a timely notice of appeal and the
issue was properly preserved in a post-sentence motion. Counsel’s Anders
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brief also has a statement pursuant to Pa.R.A.P. 2119(f). Thus, we turn to
whether the appeal presents a substantial question.
As we have explained:
The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case
basis. Generally, however, in order to establish that there
is a substantial question, the appellant must show actions
by the sentencing court inconsistent with the Sentencing
Code or contrary to the fundamental norms underlying the
sentencing process.
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted).
This Court has recently reaffirmed that a “challenge to the
discretionary aspects of [a] negotiated sentence [] is unreviewable.”
Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015), citing
Commonwealth v. O'Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008)
(“One who pleads guilty and receives a negotiated sentence may not then
seek discretionary review of that sentence.”). Indeed, we have found this
precise issue wholly frivolous in the Anders context. See O’Malley, supra.
Here, upon review of the record Appellant and the Commonwealth agreed
upon the terms of the plea deal, including the negotiated sentence, and the
trial court accepted the parties’ plea agreement. Thus, Appellant fails to
raise a substantial question for our review.
Moreover, after an independent review of the entire record, we see
nothing that might arguably support this appeal. The appeal is, therefore,
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wholly frivolous. Accordingly, we affirm Appellant’s judgment of sentence
and grant counsel’s petition for leave to withdraw appearance.
Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
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