J-S25013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY KING,
Appellant No. 2791 EDA 2016
Appeal from the Judgment of Sentence August 15, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005430-2013
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 31, 2017
Appellant, Larry King, appeals from the judgment of sentence of full
backtime plus a consecutive sentence of six to twelve months’
imprisonment, imposed after the court revoked his parole/probation,
following a new conviction. Appellant seeks to challenge his new sentence.
Additionally, his counsel, Patrick J. Connors, Esq., has filed a petition to
withdraw his representation of Appellant pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After review, we affirm Appellant’s judgment of sentence and grant
counsel’s petition to withdraw.
In October of 2013, Appellant entered a negotiated plea to charges of
criminal trespass and criminal mischief. He was sentenced to time served
(53 days) to twelve months on the criminal trespass count and a consecutive
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sentence of one year of probation on the criminal mischief count. Following
an arrest and conviction related to a robbery of a Family Dollar Store, a
probation and parole revocation hearing was held on August 15, 2016.
Appellant stipulated that he had violated his parole/probation and the court
sentenced him as noted above. Although no post-sentence motion was filed,
Appellant requested that Attorney Connors file this appeal. In response to
the court’s order directing that a concise statement of matters complained of
on appeal be filed, counsel filed a statement of intent to file an Anders brief.
See Pa.R.A.P. 1925(c)(4). In the Anders brief, the single issue raised on
appeal questions “[w]hether the 6 to 12 month term of imprisonment
imposed for violating the probation originally imposed for [c]riminal
[m]ischief is harsh and excessive under the circumstances?” Anders brief
at 1.
As noted, Attorney Connors has filed with this Court a petition to
withdraw and an Anders brief, asserting that the issue Appellant seeks to
raise has arguable merit, but “is frivolous since the new sentence was well
within the [c]ourt’s discretion given the facts of this case.” Id. at 5.
Counsel also acknowledges that he has found no other issues that may be
raised on appeal. See Counsel’s Application to Withdraw, ¶ 3.
This Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
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Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The 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
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. 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. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “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) (citations and footnote omitted).
In this case, Attorney Connors’ Anders brief substantially complies
with the above-stated requirements. Namely, he includes a summary of the
relevant factual and procedural history with citations to the record, he refers
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to portions of the record that could arguably support Appellant’s claim, and
he sets forth his conclusion that the issue and Appellant’s appeal are
frivolous. He also explains his reasons for reaching that determination, and
supports his rationale with citation to the record and pertinent legal
authority. Attorney Connors also states in his petition to withdraw that he
has supplied Appellant with a copy of his Anders brief, and he attaches a
letter directed to Appellant in which he informs him of the rights enumerated
in Nischan. Accordingly, counsel has sufficiently complied with the
technical requirements for withdrawal. We will now independently review
the record to determine if Appellant’s issue is frivolous, and to ascertain if
there are any other, non-frivolous issues Appellant could pursue on appeal.
Appellant’s issue challenges the discretionary aspects of his sentence.
Essentially, he argues that the term of incarceration imposed is unduly harsh
and excessive.1 However, as previously noted, Appellant did not file a post-
sentence motion raising this discretionary aspect of sentencing claim, and he
also did not assert it during the sentencing proceeding. Consequently, this
issue is waived. See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.
Super. 2004) (“Issues challenging the discretionary aspects of sentence
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1
At the hearing on August 15, 2016, Appellant stated that he has accepted
responsibility for his actions. He also explained about his long-standing drug
use and his participation in prison programs to help improve himself.
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must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings.”).
Accordingly, we agree with Attorney Connors that the issue Appellant
seeks to assert on appeal is frivolous, and our independent review of the
record does not reveal any other, non-frivolous issue(s) he could present on
Appellant’s behalf. Therefore, we grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2017
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