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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTONIO ADAM HOWELL
Appellant No. 1454 MDA 2015
Appeal from the Order Entered July 22, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001676-2014
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED MAY 27, 2016
Appellant, Antonio Adam Howell, appeals from the July 22, 2015
aggregate judgment of sentence of 54 months to 16 years’ imprisonment,
imposed by the trial court after Appellant entered a negotiated guilty plea to
21 criminal offenses, including 2 counts of simple assault, 1 count of
aggravated assault, 7 counts of robbery, and 11 counts of conspiracy. 1 With
this appeal, Appellant’s counsel has filed a petition to withdraw and an
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2701, 2702, 3701, and 903, respectively.
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Anders2 brief, stating that the appeal is wholly frivolous.3 After careful
review, we affirm and grant counsel’s petition to withdraw.
The trial court summarized the relevant factual and procedural history
of this case as follows.
On July 31, 2014, [Appellant] and two co-
conspirators approached John Messner on the street.
Either [Appellant] or one of his co-conspirators
pushed a gun into Mr. Messner’s stomach and
demanded money. When Mr. Messner denied having
any, the conspirators punched him repeatedly,
knocking him to the ground. They took two lighters
from his pocket. Around the same time, the
conspirators approached Lenny Roth from behind,
striking him and causing him to fall to the ground,
where the conspirators struck and kicked him. He
was seriously injured, sustaining multiple cuts and
fractures to his face. He was sent by ambulance to
Hershey Medical Center. He reported he was robbed
of his cell phone, wallet, keys and $80.00.
On October 28, 2014, the Commonwealth
charged [Appellant] with 22 counts, including two
counts of Simple Assault, one count of Aggravated
Assault, eight counts of Robbery and eleven counts
of Conspiracy to commit the forgoing crimes. On
April 29, 2015, the Commonwealth agreed to nolle
pros one of the robbery charges, and [Appellant]
entered a guilty plea to all of the remaining counts,
as charged. On July 22, 2015, [the trial court]
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2
Anders v. California, 386 U.S. 738 (1967).
3
In an unpublished memorandum filed on March 4, 2016, we determined
that counsel had failed to include in the certified record the pertinent notes
of testimony as mandated by Commonwealth v. Flowers, 113 A.3d 1246
(Pa. Super. 2015), and remanded the case for counsel to provide the
missing transcripts and file appropriate supplemental pleadings. Counsel
complied on April 26, 2016.
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imposed a sentence on [Appellant]. In doing so,
[the trial court] complied with the parties’ plea
agreement calling for a minimum of 54 months in
prison. The trial court also noted numerous
aggravating factors, including:
(1) This was a random act of
gratuitous violence.
(2) All Defendants were young and
strong, while one of the victims
was elderly and not in good health.
(3) One of the victims was injured so
severely that he had to be
transported to the hospital by
ambulance.
(4) One of the Defendants possessed a
gun and threatened the victims
with it.
(5) This was [Appellant’s] second
robbery. For his first, he was
treated in the juvenile justice
system, where he did not take
advantage of the rehabilitative
opportunities he was offered.
[The trial court] found that most of the counts
merged, and only sentenced [Appellant] on Count 1,
for Robbery of John Messner under 18 P.C.S.A.
§ 3701 § A1ii; Count 2, Criminal Conspiracy to rob
Mr. Messner under 18 P.C.S.A. § 903 § Aii/18
P.S.C.A. § 3701 § A1ii; Count 12, Robbery of Lenny
Roth under 18 P.S.C.A. § 3701 § A1ii; and Count 13,
Criminal Conspiracy to rob Lenny Roth under 18
P.S.C.A. § 903 § Aii/18 P.S.C.A. § 3701 § A1ii.
[The trial court] imposed identical sentences for
Counts 1 and 12 of 54 months to 16 years in a state
correctional facility. Likewise, the sentence on
Counts 2 and 13 were identical—three to 12 years’
imprisonment. The sentences imposed on Counts 2,
12 and 13 were to be served concurrently with the
sentence imposed on Count 1, for an aggregate
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sentence of 54 months to 16 years. [The trial court]
ordered [Appellant] to pay the costs of prosecution
and a fine of $400. [The trial court] also ordered
[Appellant] to make restitution to the Estate of Mr.
Roth in the amount of $267 and pay $1,462.17 to
the Crime Victims’ Compensation Fund.
On August 18th, [2015,] [Appellant’s] counsel filed
a Notice of Appeal.[4]
Trial Court Opinion, 9/30/15, at 2-4 (footnotes omitted).
On appeal, Appellant raises the following issues for our review.
1. Was the sentence imposed so manifestly
excessive as to constitute too severe a
punishment?
2. Was the sentence imposed manifestly excessive
because undue weight was assigned to the gravity
of the offenses despite the existence of certain
mitigating factors such as [Appellant’s] age and
education?
3. Was the sentence imposed unreasonably
disproportionate to co-defendant’s sentence?
Supplemental Anders Brief at 3.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, an Anders brief shall comply with the
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4
On August 24, 2015, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant complied on
September 11, 2015. The record does not indicate that Appellant filed a
response to either the Anders brief or supplemental Anders brief.
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requirements set forth by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that 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.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client.
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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). “Once counsel has satisfied
the above requirements, it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
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Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,
“this Court must 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)
(footnote and citation omitted).
In this appeal, we conclude that counsel’s Anders brief complies with
the requirements of Santiago. First, counsel has provided a procedural and
factual summary of the case with references to the record. Second, counsel
advances relevant portions of the record that arguably support Appellant’s
claims on appeal. Third, counsel concluded, “after a thorough review of the
record and applicable law, undersigned appointed counsel for Appellant
believes this appeal would be wholly frivolous.” Supplemental Anders Brief
at 16. Lastly, counsel has complied with the requirements set forth in
Millisock. See Letters from Counsel to Appellant, dated 11/24/15 and
4/26/16. As a result, we proceed to conduct an independent review to
ascertain if the appeal is indeed wholly frivolous.
In all three of his issues, Appellant challenges the length of his
sentence, contending it is “too severe,” and the trial court “afforded too
much weight to the aggravating factors that were present and ignored the
mitigating factors,” which resulted in Appellant receiving a sentence that was
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“disproportionate” to that of his co-defendant. Supplemental Anders Brief
at 3, 12-13.
At the outset, we note that Appellant’s argument pertains to the
discretionary aspects of his sentence. “Pennsylvania law makes clear that
by entering a guilty plea, the defendant waives his right to challenge on
direct appeal all non[-]jurisdictional defects except the legality of the
sentence and the validity of the plea.” Commonwealth v. Lincoln, 72
A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d
319 (Pa. 2014). However, when a defendant has entered a plea and it is
apparent from the record that the parties did not agree upon a maximum
term of incarceration, a defendant is entitled to seek appeal of the trial
court’s exercise of discretion in determining the maximum term of the
sentence. Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super.
2009), appeal denied, 990 A.2d 726 (Pa. 2010).
Nevertheless, “[t]here is no absolute right to appeal when challenging
the discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d
663, 666 (Pa. Super. 2014) (citation omitted). When an appellant makes an
argument pertaining to the discretionary aspects of the sentence, this Court
considers such an argument to be a petition for permission to appeal.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n
[a]ppeal is permitted only after this Court determines that there is a
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substantial question that the sentence was not appropriate under the
sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (internal quotation marks and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether 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).
Id.
Instantly, Appellant filed a timely notice of appeal on August 18, 2015.
However, our review of the certified record, including the docket entries,
indicates that Appellant did not file a motion to reconsider or modify
sentence, and did not orally preserve his sentencing issue with the trial court
at sentencing. N.T., 7/22/15, at 1-13. We therefore conclude that
Appellant’s sentencing issues are waived. Commonwealth v. Tejeda, 107
A.3d 788, 798-99 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa.
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2015) (we may not review discretionary aspects of sentencing claims when
an appellant fails to preserve them at sentencing or in his post-sentence
motion, even where the appellant has raised the claims in his Pa.R.A.P.
1925(b) statement).
Accordingly, as Appellant’s sentencing issues are waived, we agree
with counsel that this appeal is wholly frivolous. Furthermore, our
independent review of the record reveals no additional non-frivolous claims.
We therefore grant counsel’s petition to withdraw and affirm the July 22,
2015 judgment of sentence.
Judgment of sentence affirmed. Motion to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2016
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