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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MICHAEL PIETRAZAK, :
:
Appellant : No. 97 EDA 2016
Appeal from the Judgment of Sentence September 30, 2015,
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0001528-2015
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 30, 2016
Michael Pietrazak (Appellant) appeals from his September 30, 2015
judgment of sentence, which the trial court imposed after Appellant pled
guilty to three counts of possession of a controlled substance with intent to
deliver (PWID) and two counts of conspiracy. In addition, Appellant’s
counsel has filed a petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant the
petition to withdraw.
The factual basis underlying Appellant’s guilty plea provided that “on
three different occasions [Appellant] had in [his] possession Oxycodone and
… [engaged in] a hand-to-hand transaction with an undercover officer….”
N.T., 7/16/2015, at 16. As a result of these incidents, Appellant was
*Retired Senior Judge assigned to the Superior Court.
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arrested and charged with, inter alia, three counts of PWID and two counts
of conspiracy. On July 16, 2015, Appellant entered an open guilty plea to
those offenses. Trial Court Opinion, 1/28/2016, at 1.
On September 30, 2015, Appellant was sentenced to an aggregate
term of 54 to 108 months of incarceration to be followed by four years of
probation.1 Appellant timely filed a post-sentence motion arguing that the
sentence was “unduly harsh and manifestly excessive.” Motion for
Reconsideration and Modification of Sentence, 10/9/2015, at ¶ 4. The trial
court denied that motion, and Appellant timely filed a notice of appeal.
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925, and counsel filed a
statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).
The following principles guide our review of this matter:
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
1
For the PWID counts, the trial court imposed three sentences of 54 to 108
months of incarceration to run concurrently to each other. The trial court
also imposed two sentences of two years of probation on each count of
conspiracy to run consecutively to each other. The same day, the trial court
conducted probation revocation hearings on three other cases which are not
at issue here.
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If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we 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.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
above requirements.2 Once “counsel has met these 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
2
Appellant has not responded to counsel’s petition to withdraw.
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the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113
A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.
5).
Counsel presents one issue that arguably supports this appeal.
Specifically, counsel raises a challenge to the discretionary aspects of
Appellant’s sentence.3 Appellant’s Brief at 2. The applicable standard of
review is as follows.
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
3
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his or her sentence
other than to argue that the sentence is illegal or that the sentencing court
did not have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.
Super. 2005) (emphasis in original).
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An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(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 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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
The record reflects that Appellant timely filed a notice of appeal and
that he preserved this issue by including it in his post-sentence motion.
Appellant has also included in his brief a statement pursuant to Pa.R.A.P.
2119(f). We now consider whether Appellant has presented a substantial
question for our review.
Appellant’s 2119(f) statement presents the issue that “the sentences
of incarceration imposed herein are harsh and excessive under the
circumstances.” Appellant’s Brief at 4.
The determination of whether a substantial question exists
must be made on a case-by-case basis. It is only where
an aggrieved party can articulate clear reasons why the
sentence issued by the trial court compromises the
sentencing scheme as a whole that we will find a
substantial question and review the decision of the trial
court. This [C]ourt has been inclined to find that a
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substantial question exists where the appellant advances a
colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of
the Sentencing Code; or (2) contrary to the fundamental
norms underlying the sentencing process.
Also, a bald allegation that a sentence is excessive does
not raise a substantial question.
Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations
omitted).
Because a bald allegation of excessiveness does not raise a substantial
question, we agree with counsel that this issue is frivolous. Moreover,
looking to the circumstances of this case, we bear in mind that the trial court
“sentenced Appellant in the low end of the mitigated range.” Trial Court
Opinion, 1/28/2016, at 1. Furthermore, Appellant was sentenced to serve
his sentences of incarceration concurrently, rather than consecutively.
Based on the foregoing, we agree with counsel that any challenge to the
discretionary aspects of Appellant’s sentence is frivolous. Moreover, we
have conducted “a full examination of the proceedings” and conclude that
“the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus,
we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2016
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