J-S64025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN MICHAEL SOJACK,
Appellant No. 705 MDA 2017
Appeal from the Judgment of Sentence April 4, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001156-2016, CP-40-CR-0001157-
2016, CP-40-CR-0001158-2016, CP-40-CR-0001159-2016, CP-40-CR-
0001160-2016, CP-40-CR-0001468-2016
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 02, 2017
Kevin Michael Sojack (“Appellant”) appeals from the judgment of
sentence entered in the Court of Common Pleas of Luzerne County on April
4, 2017. Appellant’s counsel has filed an application to withdraw his
representation and a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which
govern a withdrawal from representation on direct appeal. Appellant has not
filed a response to counsel’s petition. After careful review, we grant
counsel’s petition to withdraw and affirm the judgment of sentence.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S64025-17
Appellant was charged with multiple drug-related offenses arising from
incidents occurring in December 2015, January 2016, and March 2016. Trial
Court Opinion, 6/27/17, at 1. He pled guilty on February 7, 2017, to three
counts of delivery of a controlled substance and three counts of criminal
conspiracy related to possession with intent to deliver a controlled
substance.1 Id. The trial court sentenced Appellant on April 4, 2017, to
incarceration for an aggregate term of six years to fifteen years. Appellant
did not file post-sentence motions. Id. at 2. On April 13, 2017, he filed a
notice of appeal, and the trial court appointed appellate counsel. Id. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Before we address the merits of this appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and
briefing requirements imposed upon an attorney who seeks to withdraw on
direct appeal. The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
____________________________________________
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903, respectively.
-2-
J-S64025-17
In this case, counsel has satisfied those directives. Within his petition
to withdraw, counsel averred that he conducted a thorough review of
Appellant’s case and determined that the appeal would be frivolous. Counsel
sent Appellant a copy of the Anders brief and petition to withdraw, as well
as a letter, a copy of which is attached to the petition. In the letter, counsel
advised Appellant that he could either represent himself on appeal or retain
private counsel to represent him.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide 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.
Counsel’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case, outlines pertinent case authority, cites to
the record, and refers to an issue of arguable merit. Anders Brief at 4–6.
Further, the brief sets forth counsel’s conclusion that the appeal is frivolous
and the reasons for counsel’s conclusion. Id. at 6–7. “Therefore, we now
have the responsibility to make a full examination of the proceedings and
make an independent judgment to decide whether the appeal is in fact
-3-
J-S64025-17
wholly frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa.
Super. 2016) (citation and internal quotation marks omitted).
In the Anders brief, counsel presents a single issue for our
consideration: “Whether the trial court abused its discretion in sentencing
Appellant.” Anders Brief at 1. This issue challenges the discretionary
aspects of his sentence. We note that “[t]he right to appellate review of the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant
challenges the discretionary aspects of a sentence, the appeal should be
considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction by satisfying a
four-part test:
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.
[708]; (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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)). The determination of whether there is a substantial question
-4-
J-S64025-17
is made on a case-by-case basis, and this Court will grant the appeal 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. Sierra, 752 A.2d 910, 912–
913 (Pa. Super. 2000).
Herein, the first requirement of the four-part test is met: Appellant
brought a timely appeal. Notice of Appeal, 4/13/17. As for the second
requirement, we are constrained to agree with the position taken by both
appellate counsel and the trial court that Appellant failed to preserve this
challenge at the time of sentencing or in a post-sentence motion. Anders
Brief at 7; Trial Court Opinion, 6/27/17, at 3–4.2 Because Appellant’s
sentencing issue was not raised in any manner, we conclude that Appellant
has waived it. Moury, 992 A.2d at 170.3
Finally, we have independently reviewed the record in order to
determine if appellate counsel’s assessment about the frivolous nature of the
present appeal is correct. Tukhi, 149 A.3d at 886; see also
____________________________________________
2 Although the Commonwealth did not file a brief, it “agrees with Appellant’s
counsel that the issues presented are frivolous and without merit,” and
“relies upon the Opinion prepared by the Court of Common Pleas.”
Commonwealth Letter, 9/18/17.
3 Because Appellant’s petition for allowance of appeal fails on the second
prong, we need not address the third and fourth requirements.
-5-
J-S64025-17
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) (after
determining that counsel has satisfied the technical requirements of Anders
and Santiago, this Court must conduct an independent review of the record
to determine if there are additional, non-frivolous issues overlooked by
counsel). After review of the issue raised by counsel and our independent
review of the record, we conclude that an appeal in this matter is frivolous.
Accordingly, we grant appellate counsel permission to withdraw and affirm
the judgment of sentence.
Application to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2017
-6-