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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MAXWELL THOMPSON, :
:
Appellant : No. 117 WDA 2016
Appeal from the Judgment of Sentence December 16, 2015
in the Court of Common Pleas of Erie County,
Criminal Division, No(s): CP-25-CR-0001963-2015
BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 16, 2016
Maxwell Thompson (“Thompson”) appeals from the judgment of
sentence imposed following his conviction of possession of an instrument of
crime and driving under the influence (“DUI”).1 Additionally, Emily M.
Merski, Esquire (“Attorney Merski”), Thompson’s counsel, has filed a Petition
to Withdraw as Counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). We grant Attorney Merski’s Petition
to Withdraw and affirm Thompson’s judgment of sentence.
On or about June 15, 2015, Thompson called his employer stating that
he was going to slit his employer’s throat with a knife. Thompson then
drove, while intoxicated, to his find his employer at 2311 West 15th Street in
the City of Erie. On the way, Thompson called multiple people to tell them
what he was planning to do to his employer when he arrived. A number of
1
See 18 Pa.C.S.A. § 907(b); 75 Pa.C.S.A. § 3802(a)(1).
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these people called the Millcreek Police. When officers stopped Thompson’s
vehicle, they found a nearly foot-long Bowie knife sitting on the passenger
seat.
On October 8, 2015, Thompson pled guilty to the above-mentioned
crimes. On December 10, 2015, the trial court sentenced Thompson to an
aggregate term of fourteen to forty-two months in prison.
Thompson filed a Motion for Reconsideration of Sentence. On
December 16, 2015, the trial court granted Thompson’s Motion, and
sentenced Thompson to an aggregate term of ten to twenty-two months in
prison. Thereafter, Thompson filed a timely Notice of Appeal. Attorney
Merski subsequently filed a Pa.R.A.P. 1925(c)(4) Notice of Intent to file an
Anders brief.
On appeal, Attorney Merski has filed an Anders brief, raising the
following question for our review: “Whether [] Thompson’s sentence is
manifestly excessive, clearly unreasonable and inconsistent with the
objectives of the Sentencing Code?” Anders Brief at 3. On May 18, 2016,
Attorney Merski filed a Petition to Withdraw as Counsel. Thompson filed
neither a pro se brief, nor retained alternate counsel.
We must first determine whether Attorney Merski has complied with
the dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)
(stating that “[w]hen faced with a purported Anders brief, this Court may
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not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”). Pursuant to Anders, when an
attorney believes that an appeal is frivolous and wishes to withdraw as
counsel, he or she must
(1) [p]etition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the appeal,
but which does not resemble a no-merit letter; and (3) furnish a
copy of the brief to the defendant and advise him of his right to
retain new counsel, proceed pro se, or raise any additional points
he deems worthy of this Court’s attention.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citation omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders 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 the record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Merski has complied with the requirements set forth in
Anders by indicating that she has conscientiously examined the record and
determined that an appeal would be frivolous. Further, Attorney Merski
provided a letter to Thompson, informing him of Attorney Merski’s intention
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to withdraw and advising Thompson of his rights to retain new counsel,
proceed pro se, and file additional claims. Finally, Attorney Merski’s Anders
Brief meets the standards set forth in Santiago by providing a factual
summary of Thompson’s case, with support for Attorney Merski’s conclusion
that the trial court did not err or abuse its discretion by imposing
Thompson’s sentence, rendering his appeal wholly frivolous. Because
Attorney Merski has complied with the procedural requirements for
withdrawing from representation, we will independently review the record to
determine whether Thompson’s appeal is, in fact, wholly frivolous.
Thompson contends that the sentencing judge abused his discretion in
imposing a manifestly excessive standard range sentence of ten to twenty-
two months in prison for possession of an instrument of crime and DUI.
Anders Brief at 4-5, 7. Thompson argues that the sentencing judge did not
consider factors set forth at 42 Pa.C.S.A. § 9721(b). Id. at 6, 7. Thompson
further asserts that several mitigating factors exist that justified a lower
sentence, such as the character letters submitted on his behalf, the recent
trauma he endured with the passing of his wife, and the fact that he has
accepted responsibility for his actions. Id. at 7-8.
Thompson challenges the discretionary aspects of his sentence.
Prior to reaching the merits of a discretionary sentencing issue,
an appellate court conducts a four-part analysis to determine:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief
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has a fatal defect, see Pa.R.A.P. 2119(f); and (4) whether there
is substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (citation
omitted).
Here, Thompson filed a timely Notice of Appeal. However, Thompson
failed to raise his sentencing claims in a motion for reconsideration of
sentence or at the sentencing hearing.2 See Commonwealth v. Reaves,
923 A.2d 1119, 1125 (Pa. 2007) (stating that “failure to file a motion for
reconsideration after failing to object at sentencing [] operates to waive
issues relating to the discretionary aspects of sentencing”); see also
Commonwealth v. Williams, 787 A.2d 1085, 1088 (Pa. Super. 2001)
(stating that claims challenging discretionary aspects of sentencing are
waived when the sentencing judge is not afforded the opportunity to
reconsider or modify the sentence through a post-sentence motion or an
objection at sentencing).
Nevertheless, Anders requires that we examine the merits of
Thompson’s claims to determine whether his appeal is, in fact, “wholly
frivolous” in order to rule upon counsel’s request to withdraw. See
Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super. 1990) (stating
that discretionary aspects of sentencing claims raised in an Anders brief
must be addressed on appeal, despite procedural violations).
2
We note that although Thompson filed a Motion for Reconsideration of his
initial sentence, he failed to file such a motion upon his resentencing.
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Our standard of review for challenges to the discretionary aspects of
sentencing is well settled:
[s]entencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias,
or ill will. It is more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006)
(citations omitted).
At Thompson’s sentencing hearing, the trial court stated that it had
reviewed and considered the presentence investigation report. See N.T.,
12/10/15, at 13; see also Commonwealth v. Downing, 990 A.2d 788,
794 (Pa. Super. 2010) (stating that “where the trial court is informed by a
pre-sentence report, it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed”) (quotation marks and
citations omitted). Additionally, the trial court considered the Sentencing
Code, the Sentencing Guidelines, and the statements by Thompson and his
counsel. N.T., 12/10/15, at 13. The trial court considered Thompson’s age,
character, his rehabilitative needs, the seriousness of the crime, the
protection of the community, and the fact that he has accepted responsibility
for his crimes. Id. The trial court also took into account Thompson’s prior
criminal record, which includes two prior convictions for DUI, two convictions
for recklessly endangering another person, and two convictions for simple
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assault. Id. at 13-14. Based on our review, we conclude that the trial court
did not abuse its discretion in imposing Thompson’s sentence. See
Malovich, 903 A.2d at 1254.
Further, our independent examination of the record indicates that
there are no other claims of arguable merit. See Anders, 386 U.S. at 744-
45. Accordingly, we conclude that Thompson’s appeal is wholly frivolous,
and Attorney Merski is entitled to withdraw as counsel.
Petition to Withdraw as Counsel granted; judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
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