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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANTES E. WALLACE, :
:
Appellant : No. 1160 MDA 2016
Appeal from the Judgment of Sentence July 11, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001275-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 13, 2017
Appellant, Dantes E. Wallace, appeals from the Judgment of Sentence
entered following the revocation of his probation. On appeal, Appellant
challenges the discretionary aspects of his sentence. Appellant’s counsel
filed an Application to Withdraw as Counsel and a Brief pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), stating that the appeal is wholly frivolous. After
careful review, we affirm the Judgment of Sentence and grant the
application to withdraw.
The facts, as gleaned from the certified record, are as follows. On
June 16, 2015, police arrested Appellant after detectives observed Appellant
engage in a controlled sale of crack cocaine to a confidential informant. On
August 7, 2015, Appellant entered into a guilty plea to one count of Criminal
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Conspiracy to Commit Delivery of a Controlled Substance in violation of 18
Pa.C.S. § 903.1 On October 16, 2015, the trial court sentenced Appellant to
five years of Restrictive Intermediate Punishment, with Appellant to serve
the first three months in confinement in Lackawanna County prison, and
then three months on house arrest. As a condition of his sentence,
Appellant was ordered not to consume drugs or alcohol, to stay away from
liquor-licensed premises, to obtain a drug and alcohol assessment, and to
participate in Lackawanna County’s Veteran’s Treatment Court.
On February 23, 2016, Appellant tested positive for marijuana.
Appellant denied using marijuana, so the sample underwent additional
testing. Further testing yielded positive results; therefore, Appellant was
detained and transported to prison.
Appellant was released from custody on March 10, 2016. Three days
later, on March 13, 2016, Appellant was randomly screened for alcohol use
and tested positive. He was again detained and transported to prison. On
May 23, 2016, Appellant’s Probation Officer filed a Probation Violation
Petition.
On June 15, 2016, Appellant stipulated to the probation violations.
The court, therefore, revoked Appellant’s probation sentence, and sentenced
1
In exchange, the Commonwealth withdrew charges of Delivery of a
Controlled Substance, Criminal Use of a Communication Facility, Possession
of a Controlled Substance, and Possession of Drug Paraphernalia.
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Appellant to one to two years’ incarceration followed by two years’
supervised probation.
Appellant filed a Motion for Reconsideration of Sentence, asserting that
the sentence was harsh and excessive in light of his addiction issues, which
the trial court denied on June 22, 2016. Appellant timely appealed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On October 24, 2016, Appellant’s counsel filed an Application to
Withdraw as Counsel, and on November 21, 2016, she filed a Brief pursuant
to Anders and Santiago, supra.
Before we address the merits of this appeal, we must determine
whether counsel has followed the procedures for filing a brief and petition to
withdraw pursuant to Anders and its progeny. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Counsel who
wishes to withdraw must file a petition to withdraw explaining that he or she
made a conscientious examination of the record and determined that an
appeal would be frivolous. Commonwealth v. Wright, 846 A.2d 730, 736
(Pa. Super. 2004). Also, counsel must provide a copy of the Anders Brief to
the appellant and inform him of his right to proceed pro se, retain different
counsel, or assert issues not included in the Anders Brief. Id.
The substance of the 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;
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(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.
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.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc). 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).
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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 concludes that the instant appeal is wholly
frivolous. Lastly, counsel has complied with the requirements set forth in
Millisock. See Letter from Counsel to Appellant, dated 10/24/16. As a
result, we proceed to conduct an independent review to ascertain if the
appeal is indeed wholly frivolous.
Appellant’s sole issue in his Anders Brief challenges the discretionary
aspects of his sentence. A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a matter of right.
Commonwealth v. Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001). Prior
to reaching 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, 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. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
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In the instant case, Appellant filed a timely Notice of Appeal and a
timely Post-Sentence Motion. He also included a separate Pa.R.A.P. 2119(f)
Statement in his Anders Brief. As to whether Appellant has presented a
substantial question, we note:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when 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 which underlie the sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation marks omitted).
Here, Appellant avers in his Pa.R.A.P. 2119(f) Statement, that his
“sentence was unwarranted given the fact that he has addiction issues.”
Anders Brief at 10. Although Appellant concedes that the sentence imposed
following the revocation of his probation falls within the statutory limits, 2 he
claims that it is inappropriately harsh and excessive because his probation
violation arose from his addiction problems. Id. at 10-12. He argues that
his sentence of incarceration is excessive, and the court failed to consider his
rehabilitative needs or to identify how the sentence imposed would protect
the public. Id.
2
The statutory limit for Conspiracy to Commit Delivery of a Controlled
Substance is ten years’ incarceration.
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“[O]rdinarily, a claim that the sentencing court failed to consider or
accord proper weight to a specific sentencing factor does not raise a
substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 769
(Pa. Super. 2015) (citation omitted) (emphasis in original.) Moreover,
there is ample precedent to support a determination that a
claim that the trial court failed to consider an appellant’s
rehabilitative needs fails to raise a substantial question[.]
See Commonwealth v. Cannon, 954 A.2d 1222, 1228–
29 (Pa.Super.2008), appeal denied, 600 Pa. 743, 964 A.2d
893 (2009) (claim that the trial court failed to consider the
defendant's rehabilitative needs, age, and educational
background did not present a substantial question);
Commonwealth v. Coolbaugh, 770 A.2d 788, 793
(Pa.Super.2001) (citing Commonwealth v. Mobley, 399
Pa.Super. 108, 581 A.2d 949, 952 (1990)) (claim that
sentence failed to take into consideration the defendant's
rehabilitative needs and was manifestly excessive did not
raise a substantial question where sentence was within
statutory guidelines and within sentencing guidelines);
Commonwealth v. Coss, 695 A.2d 831, 833
(Pa.Super.1997) (when the sentence imposed falls within
the statutory limits, an appellant's claim that a sentence is
manifestly excessive fails to raise a substantial question);
Commonwealth v. Bershad, 693 A.2d 1303, 1309
(Pa.Super.1997) (a claim that a trial court failed to
appropriately consider an appellant's rehabilitative needs
does not present a substantial question); Commonwealth
v. Lawson, 437 Pa.Super. 521, 650 A.2d 876, 881 (1994)
(claim of error for failing to consider rehabilitative needs
does not present substantial question).
Id. (citing Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa. Super.
2013).
Accordingly, we conclude that Appellant has failed to raise a
substantial question as to the appropriateness of his sentence and agree
with counsel that this appeal is wholly frivolous. Furthermore, our
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independent review of the record reveals no additional non-frivolous claims.
We, therefore, grant counsel’s Application to Withdraw as Counsel and affirm
Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed. Application to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
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