J. S08027/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DENNIS SCHELL, : No. 912 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 18, 2016,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0014569-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 15, 2017
Dennis Schell appeals from the May 18, 2016 aggregate judgment of
sentence of 15 to 30 years’ imprisonment imposed after he pled guilty to
multiple counts of robbery.1 Contemporaneously with this appeal, counsel2
has requested leave to withdraw in accordance with Anders v. California,
386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa.
1981), and their progeny. After careful review, we grant counsel’s petition
to withdraw and affirm the judgment of sentence.
The trial court summarized the relevant facts and procedural history of
this case as follows:
1
18 Pa.C.S.A. § 3701(a)(1)(ii), (vi).
2
Appellant is represented on appeal by Thomas N. Farrell, Esq. (hereinafter,
“counsel” or “Attorney Farrell”).
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[Appellant] was charged with four (4) counts of
Robbery and one (1) count of Robbery of a Financial
Institution in relation to two (2) robberies of First
Commonwealth Bank and one (1) robbery of
Citizen’s Bank. On December 13, 2012, [Appellant]
appeared before th[e trial c]ourt and entered a
general plea of guilty to all charges. Following the
preparation of a Pre-Sentence Investigation Report
and a mental health evaluation, [Appellant] again
appeared before th[e trial c]ourt on March 18, 2013
and was sentenced to three (3) mandatory,
consecutive terms of imprisonment of five (5) to
10 years for an aggregate term of imprisonment of
15 to 30 years. No Post-Sentence Motions were filed
and no direct appeal was taken.
No action was taken until June 2, 2014, when
[Appellant] filed a pro se “Petition for
Reconsideration of Sentence.” Th[e PCRA c]ourt
treated the Petition as a Post Conviction Relief Act
Petition and appointed counsel to represent
[Appellant]. Counsel subsequently filed an Amended
PCRA Petition averring the ineffective assistance of
counsel in relation to [Appellant’s] Post Sentence
Motion rights. By Order of July 14, 2014, th[e PCRA
c]ourt granted collateral relief and reinstated
[Appellant’s] Post-Sentence Motion rights nunc pro
tunc. Post Sentence Motions were subsequently
filed and were denied on July 23, 2014. The
judgment of sentence was affirmed by the Superior
Court on January 13, 2015 and our Supreme Court
denied [Appellant’s] subsequent Petition for
Allowance of Appeal on March 31, 2015. [See
Commonwealth v. Schell, 118 A.3d 445
(Pa.Super. 2015), appeal denied, 113 A.3d 279
(Pa. 2015) (unpublished memorandum).]
No further action was taken until June 24,
2015, when [Appellant] filed a pro se [PCRA]
Petition. [Attorney] Farrell [] was appointed to
represent [Appellant], and an Amended Petition
followed which alleged an Alleyne claim with regard
to th[e trial c]ourt’s imposition of mandatory
sentences. Upon consideration of the Amended
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Petition and the Commonwealth’s response thereto,
th[e PCRA c]ourt granted relief in the form of
resentencing. The resentencing hearing was held on
May 18, 2016, at which time th[e trial c]ourt
imposed a non-mandatory sentence consisting of
three (3) consecutive terms of imprisonment of
five (5) to 10 years. Timely Post -Sentence Motions
were filed [on May 23, 2016] and were denied on
May 31, 2016.
Trial court opinion, 8/30/16 at 1-2 (case citation added; footnotes omitted).
On June 27, 2016, Appellant filed a timely notice of appeal. On
June 28, 2016, counsel filed a statement of his intention to file an
Anders/McClendon brief, in accordance with Pa.R.A.P. 1925(c)(4). On
August 30, 2016, the trial court filed an opinion, concluding that there were
no meritorious issues on appeal. (See Trial Court Opinion, 8/30/16 at 3-4.)
Thereafter, on November 28, 2016, Appellant’s counsel filed a motion and
brief to withdraw from representation. Appellant did not respond to
counsel’s motion to withdraw.
In his Anders brief, counsel raises the following issues on Appellant’s
behalf:
1. Whether the sentencing court abused its
discretion by imposing an excessive and harsh
sentence of fifteen (15) to thirty (30) years of
incarceration for three (3) counts of robbery?
2. Whether the sentencing court abused its
discretion by failing to give the proper weight
to the facts presented at the sentencing
hearing included [sic], but not limited to, the
following: a) [a]ppellant has a serious health
condition and was essentially given a death
sentence, b) [a]ppellant’s conduct in prison
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was relatively good, c) [a]ppellant was a
veteran, d) [a]ppellant has a mental health
problem and e) when [a]ppellant was given the
wrong prescription, he would rob banks?
Anders brief at 7.
“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). In order to withdraw pursuant to Anders,
“counsel must file a brief that meets the requirements established by our
Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014)
(parallel citation omitted). Specifically, counsel’s Anders brief must comply
with the following requisites:
(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. (citation omitted).
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Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief
must be accompanied by a letter that advises the client of the option 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.”
Id. “Once counsel has satisfied the above requirements, it is then this
[c]ourt’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) (citation and internal quotation marks omitted).
Instantly, we conclude that counsel has satisfied the technical
requirements of Anders and Santiago. Counsel has identified the pertinent
factual and procedural history and made citation to the record. Counsel has
also raised two discretionary aspects of sentencing claims that could
arguably support an appeal, but ultimately concludes that the appeal is
wholly frivolous. Counsel has also attached to his petition a letter to
Appellant, which meets the notice requirements of Millisock. Accordingly,
we proceed to conduct an independent review of the record to determine
whether this appeal is wholly frivolous.
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Appellant contends that the trial court abused its discretion by
imposing an excessive sentence of 15 to 30 years’ imprisonment and by
failing to give proper weight to several mitigating factors. (Anders brief at
22, 25.) These claims are meritless.
Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. See Commonwealth v. Allen, 24 A.3d
1058, 1064 (Pa.Super. 2011). Rather, an Appellant challenging the
discretionary aspects of his sentence must invoke this court’s jurisdiction by
satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
[a]ppellant preserved his issue; (3) whether
[a]ppellant’s brief includes a concise statement of
the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
substantial question that the sentence is appropriate
under the sentencing code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Here, the record reveals that Appellant filed a timely notice of appeal
and preserved his issues in his May 23, 2016 post-sentence motion. (See
“Post-Sentencing Motions,” 5/23/16 at ¶¶ 16A-16B.) Appellant also included
a statement in his brief that comports with the requirements of
Pa.R.A.P. 2119(f). (See Anders brief at 17-22.) Accordingly, we must
determine whether Appellant has raised a substantial question.
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“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(citation omitted). “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. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),
appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).
Upon review, we find that Appellant has failed to raise a substantial
question that his sentence is not appropriate under the Sentencing Code.
This court has long recognized that “a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying this
Court’s review of the merits of the underlying claim.” Commonwealth v.
Harvard, 64 A.3d 690, 701 (Pa.Super. 2013), appeal denied, 77 A.3d 636
(Pa. 2013) (citation omitted); see also Commonwealth v. Mouzon, 812
A.2d 617, 623 (Pa. 2002) (holding that an excessiveness claim that is raised
against a sentence that falls within the statutory limits, as is the case here,
does not raise a substantial question). Likewise, “a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super.
2013) (citation omitted); see also Commonwealth v. Moury, 992 A.2d
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162, 171 (Pa.Super. 2010) (stating that an “allegation that [the] sentencing
court failed to consider or did not adequately consider certain factors
generally does not raise a substantial question.”) (citation and internal
quotation marks omitted).
Based on the foregoing, we agree with counsel’s assessment that this
appeal is wholly frivolous and that Appellant is entitled to no relief on his
discretionary aspects of sentencing claims. After our own independent
review of the record, we discern no additional issues of arguable merit.
Accordingly, we grant counsel’s petition to withdraw and affirm the May 18,
2016 judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2017
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