J-S64040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
EMMANUEL PAULINO
Appellant No. 442 MDA 2017
Appeal from the Judgment of Sentence April 20, 2016
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
CP-40-CR-0000321-2014,
CP-40-CR-0004435-2013
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 16, 2017
Appellant, Emmanuel Paulino, appeals from the judgment of sentence
entered in the Luzerne County Court of Common Pleas. His attorney, David
V. Lampman, II, Esq. (“Counsel”), has filed an Anders1 petition for leave to
withdraw. Counsel identifies the following issues on appeal: (1) whether the
trial court abused its discretion in sentencing Appellant; and (2) whether
Appellant’s remaining claims qualify for relief. Appellant filed a pro se
response to Counsel’s Anders brief. We grant Counsel’s petition to
withdraw and affirm.
* Former Justice specially assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
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On June 9, 2014, Appellant pled guilty in case number CP-40-CR-
00321 to Count 1 aggravated assault2 and Count 2 aggravated assault.3 In
case number CP-40-CR-004435-2013, Appellant pled guilty to manufacture,
delivery, or possession with intent to manufacture or deliver a controlled
substance4 (“PWID”), and conspiracy.5 The trial court summarized the
procedural posture of this case as follows:
On August 28, 2014, [Appellant] was sentenced to an
aggregate of 102 to 152 months[’] incarceration . . . .
* * *
[Appellant] did not file post-sentence motions or a
direct appeal of this case.
On September 18, 2015, [Appellant] filed a timely
[(“PCRA”)6] petition.
In the PCRA petition, [Appellant] alleged that he was
entitled to relief pursuant to Alleyne[7] because he was
sentenced to an illegal mandatory minimum sentence in
Count 1 of 4435-2013.
On April 20, 2016, after concurrence by the
Commonwealth, the [c]ourt granted [Appellant’s] PCRA,
vacated the mandatory minimum sentence on Count 1 of
2 18 Pa.C.S. § 2702(a)(1).
3 18 Pa.C.S. § 2702(a)(3).
4 35 Pa.C.S. § 780-113(a)(30).
5 18 Pa.C.S. § 903.
6 42 Pa.C.S. §§ 9541-9546.
7 Alleyne v. U.S., 133 S.Ct. 2151 (2013).
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4435 of 2013, and resentenced him in accordance with
Alleyne [ ] by issuing a 12 to 24 month standard range
sentence.
At the time of re-sentencing, [Appellant’s] aggregate
minimum and maximum sentence was reduced by one (1)
year.
On May 16, 2016, [Appellant] timely filed a Notice of
Appeal.
On June 27, 2016, [Appellant] filed a concise statement
of errors.
On July 5, 2016, the Commonwealth filed a response to
[Appellant’s] concise statement.
On August 5, 2016, the [c]ourt issued an opinion on
this matter pursuant to Pa.R.A.P. 1925(a).
On July 15, 2016, the Superior Court issued an order
dismissing [Appellant’s] appeal (819 MDA 2016) for his
counsel’s failure to comply with the requirements
concerning filing the docketing statement, Pa.R.A.P.
3517.[8]
On October 7, 2016, [Appellant] timely filed a pro se
PCRA petition commencing this action.
8 Rule 3517 provides:
Whenever a notice of appeal to the Superior Court is filed,
the Prothonotary shall send a docketing statement form
which shall be completed and returned within ten (10)
days in order that the Court shall be able to more
efficiently and expeditiously administer the scheduling of
argument and submission of cases on appeal. Failure to
file a docketing statement may result in dismissal of the
appeal.
Pa.R.A.P. 3517.
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The [c]ourt held a PCRA hearing . . . at which time the
District Attorney and the Attorney General concurred in
[Appellant’s] request to reinstate his direct appellate
rights.
Trial Ct. Op., 4/21/17, at 2-4. On March 7, 2017, the court granted the
PCRA petition and reinstated Appellant’s direct appellate rights. This appeal
followed.9
Counsel identifies the following issues in the Anders brief:10
1. Whether the sentencing court erred and/or abused its
discretion in sentencing [Appellant]?
2. Whether [Appellant’s] remaining claims are meretricious
[sic] and/or qualify for relief?[11]
9 Appellant filed a notice of appeal on March 13, 2017. On March 23, 2017,
docketed March 29, 2017, this Court entered a per curiam order directing
the trial court to enter the March 7, 2017 order on the docket within 14
days. On March 27, 2017, the trial court complied with this Court’s Order.
“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the date thereof.” Commonwealth v. Cooper, 27 A.3d 994,
1008 (Pa. 2011) (citing Pa.R.A.P. 905(a)(5)) (quotation marks omitted).
Accordingly, the instant appeal is properly before us. See id.
10We note that Counsel filed a court ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal on March 17, 2017.
11 The Anders brief raises two additional issues:
3. Whether the undersigned’s analysis herein complies
with Anders . . . .
4. Whether undersigned’s petition to withdraw should be
granted?
Anders Brief at viii.
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Anders Brief at viii.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d
379, 382 (Pa. Super. 2008).
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
[Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)].
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.”
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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted).12 If counsel complies with these requirements,
“we will make a full examination of the proceedings in the lower court and
render an independent judgment [as to] whether the appeal is in fact
‘frivolous.’” Id. at 882 n.7 (citation omitted).
Instantly, Counsel provided a factual summary of the case with
citations to the record. Anders Brief at 1-16. Counsel explained the
relevant law and discussed why Appellant’s claims are meritless. Id. at 17-
27. In conclusion, Counsel’s Anders brief stated: “There are no issues of
substantive merit to be presented on appeal.” Id. at 37.
Counsel also provided Appellant with a copy of the Anders brief and a
letter advising Appellant of his rights. Counsel’s Appl. to Withdraw, 6/10/17.
In light of the foregoing, we hold Counsel has complied with the
requirements of Santiago. See Orellana, 86 A.3d at 879-80. We now
examine the record to determine whether the issue on appeal is wholly
frivolous. See id. at 882 n.7.
12Our Supreme Court in Santiago “emphasized the difference between an
Anders brief, which offers an issue for a court’s consideration, but reflects
counsel’s candid assessment of the complete lack of merit in his client’s
case, and a merits brief, which implies that an issue is worthy of review and
has some chance of succeeding.” Santiago, 978 A.2d at 359-60.
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First, Counsel identified the following issue in the Anders brief:
“Whether the sentencing court erred and/or abused its discretion in
sentencing [Appellant]?” Anders Brief at viii.
As a prefatory matter, we note that “[t]he right to appeal the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008).
This Court may only reach the merits of an appeal
challenging the discretionary aspects of sentence where it
appears that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing
Code. A substantial question will be found where the
defendant advances a colorable argument that the
sentence imposed is either inconsistent with a specific
provision of the code or is contrary to the fundamental
norms which underlie the sentencing process.
Id. (quotation marks and citation omitted). In addition, Pennsylvania Rule
of Appellate Procedure 2119(f) requires that “[a]n appellant who challenges
the discretionary aspects of a sentence in a criminal matter shall set forth in
his brief a concise statement of the reasons relied upon for allowances of
appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P.
2119(f); see also Booze, 936 A.2d at 1278.
Counsel’s Anders brief does not contain a statement of reasons for
allowance of appeal pursuant to Rule 2119(f). In Commonwealth v.
Lilley, 978 A.2d 995 (Pa. Super. 2009), this Court opined:
The Anders brief challenges discretionary aspects of
[the a]ppellant’s sentence. [The a]ppellant was required
to “set forth in his brief a concise statement of the reasons
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relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
The concise statement must specify where the
sentence falls in relation to the sentencing guidelines
and what particular provision of the code it violates.
Additionally, the statement must specify what
fundamental norm the sentence violates and the
manner in which it violates that norm. If the
statement meets these requirements, we can decide
whether a substantial question exists.
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.
Super. 2004) (internal quotations and citations omitted).
[The a]ppellant’s Pa.R.A.P. 2119(f) statement fails to cite
what particular provision of the code or what specific
fundamental norm [the a]ppellant’s sentence allegedly
violates.
Nevertheless, in light of Counsel’s petition to withdraw,
we address [the a]ppellant’s contention. See
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.
Super. 2001) (concluding that Anders requires review of
issues otherwise waived on appeal).
Id. at 998.
We will review the issue nonetheless. See id. Our review is governed
by the following principles:
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.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted).
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In making a reasonableness determination, a court should consider
four factors:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d)(1)-(4).
In Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011), this
Court held:
[W]here the sentencing court imposed a standard-range
sentence with the benefit of a pre-sentence report [“PSI”],
we will not consider the sentence excessive. In those
circumstances, we can assume the sentencing court was
aware of relevant information regarding the defendant’s
character and weighed those considerations along with
mitigating statutory factors.
Id. at 298 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988)) (quotation marks omitted); see also Commonwealth v. Moury,
992 A.2d 162, 171 (Pa. Super. 2010) (stating “where a sentence is within
the standard range of the guidelines, Pennsylvania law views the sentence
as appropriate under the Sentencing Code”).
At the resentencing hearing, the court asked Appellant’s counsel if
there had been any discussion with the Commonwealth prior to the hearing.
N.T., 4/20/16, at 2.
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[Appellant’s counsel:] Yes, there has, Your Honor. I think
we have a deal and I’d actually like [Appellant] to be
sworn in just so we can take his testimony.
* * *
Your Honor, specifically I believe the agreement that’s
been reached with the Attorney General’s Office is on 4435
of 2013, delivery of heroin, where a mandatory minimum
was imposed.
It is agreed that pursuant to the more recent case law,
the mandatory minimum would be unconstitutional and
therefore it is [Appellant’s] desire that he be resentenced
as to that count.
As it relates to anything else that he may have
otherwise raised in any paperwork he filed, he would want
to withdraw any other arguments or issues that he brought
up.
And I just want to make sure I’m correct with that.
[Appellant:] Yes, sir.
The Court: And . . . you have been counseled by [your
Attorney] and had an opportunity to speak with him?
[Appellant:] Yes.
* * *
[Appellant’s counsel:] So it is my understanding that the
standard range for the delivery of heroin would again be a
six month to 14 month standard range, and ask only that
count be resentenced within that standard range.
The Court: Deputy Attorney General Abraham, at this point
what is your position?
[Deputy Attorney General:] . . . The Commonwealth has
no opposition to granting [Appellant’s] PCRA request . . .
to be resentenced on Count 1 of docket 4435 of 2013 to
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reflect a sentence within the standard range of six to 14
months.
The Court: So both parties are stipulating to the standard
range of sentencing on Count 1 . . . .
* * *
The Court: Assistant DA Violi, do you care to be heard at
this point?
[Assistant DA:] Just with regard to the sentencing, I would
restate my position from the original sentencing that the
cases run consecutive to each other.
* * *
The Court: Counsel, as I have indicated to you, I will grant
a resentencing. And it will be as to the entire information,
4435 of ‘13, Count 1, [PWID] and Count 2, conspiracy.
Commonwealth in agreement?
[The Commonwealth:] Yes, Your Honor.
The Court: And [counsel for Appellant]?
[Counsel for Appellant:] Yes.
The Court: So noted.
I will incorporate the [PSI] that was prepared in this
matter August 12, of 2014, and I will ask whether there
are any additional statements to be made by either party
at this particular juncture.
[Counsel for Appellant:] Yes, Your Honor, [Appellant]
would like to give you an update since he’s been
incarcerated.
The Court: [Appellant] is sworn.
[Appellant:] Yes, Your Honor.
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I’ve been incarcerated two and a half years, I did my PC
program and two other programs, I have no write ups.
And I’m asking you just to have a reconsideration.
I have to justify myself that I did cooperate with the
Commonwealth of Pennsylvania with my aggravated
assault and I did plea [sic] guilty.[13] I know I am guilty. I
wasn’t on the right path in my life. I’ve got four kids out
there and I really want to be the father that they deserve
when I get out.
* * *
The Court: . . . I grant the PCRA relief as to resentencing
on information 4435 of ’13 in accordance with the case
law.
13 As to the aggravated assault counts, Appellant pled guilty to the following:
The Commonwealth: Your Honor, this took place on
November 19th of 2013, in the early morning hours.
[Appellant] was staying with the victim who is his girlfriend
and mother of his children. They were in the same bed
sleeping together. [Appellant] with no warning then
inserted his arm repeatedly into her anus up to his elbow
and he caused significant damage. She required hours of
surgery and has permanent damage which will require the
lifelong use of colostomy bag.
When the police arrived at the scene, [Appellant] also
head butted Trooper Foux, F-O-U-X, causing damage to his
not.
The Court: So noted. Are you pleading guilty to those
charges?
[Appellant:] Yes.
N.T. Guilty Plea Hr’g, 6/9/14, at 6-7.
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[Appellant] has withdrawn all other requests in the
PCRA petition and as such they are moot. I have
incorporated the [PSI], I take into account also the
statements of [Appellant, the Attorney General, the
Assistant DA, and Appellant’s counsel,] I’ve considered the
nature of the offenses and the voluntariness of the plea.
The sentence of the [c]ourt on 4435 of ’13, Count 1,
possession with intent to deliver, I sentence you to a term
of imprisonment in state prison for a period of not less
than 12 months, no more than 24 months.
On Count 2, conspiracy, I sentence you to
imprisonment in a state prison for a period of not less than
12 months, no more than 24 months, which shall be
concurrent to the sentence imposed at Count 1.
* * *
Furthermore, today’s sentence is consecutive to the
sentence imposed by the [c]ourt at information 321 of ’14.
Id. at 2-6, 8-9.
We discern no abuse of discretion in the trial court’s conclusions.
Fullin, 892 A.2d 843. The court imposed a standard-range sentence with
the benefit of a PSI. Therefore, Appellant’s sentence of twelve to twenty-
four months was not manifestly excessive. See Corley, 31 A.3d at 298;
Moury, 992 A.2d at 171. We agree with Counsel that this claim is frivolous.
The next claim identified by Counsel is that there was a negotiated
guilty plea agreement of three to six years’ imprisonment which was not
honored. Anders Brief at 27. Our review of the record does not support
this claim. We agree with Counsel that this claim is also frivolous.
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Lastly, the Anders brief and Appellant’s pro se response to the
Anders brief raise issues of the ineffective assistance of counsel. “[C]laims
of ineffective assistance of counsel will not be entertained on direct appeal.”
Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (citation
omitted). We acknowledge that there are exceptions to this rule; however,
they do not apply in the case at bar. See Commonwealth v. Holmes, 79
A.3d 562 (Pa. 2013) (discussing the continued viability and limited scope of
the exception enunciated in Commonwealth v. Bomar, 826 A.2d 831 (Pa.
2003)). We will not address Appellant’s ineffective assistance of counsel
claims. See Liston, 977 A.2d at 1094. Therefore, we dismiss these claims
without prejudice to Appellant’s right to raise his ineffective assistance of
counsel claims on collateral review. See id. at 1094-95.
A review of the record reveals no other meritorious issue that could
provide relief.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
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