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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TIMOTHY DALE REEVE :
:
Appellant : No. 1908 MDA 2017
Appeal from the Judgment of Sentence October 23, 2017
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000261-2017
BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 29, 2018
Timothy Dale Reeve (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to corruption of minors. 1 Appellant’s counsel
(“Counsel”)2 seeks to withdraw from representation pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967) and Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, we affirm Appellant’s
judgment of sentence and grant Counsel’s petition to withdraw.
The trial court summarized the factual and procedural history as follows:
In April 2017, [Appellant] was charged with Aggravated
Indecent Assault, 18 Pa.C.S. § 3125(a)(1), a felony of the second
degree, Corruption of Minors, 18 Pa.C.S. § 6301(a)(1)(i), a
misdemeanor of the first degree, and Indecent Assault, 18 Pa.C.S.
§ 3126(a)(1), a misdemeanor of the second degree. The charges
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1 18 C.S.A. § 6301(a)(1)(i).
2 Counsel represented Appellant both at the trial court and on appeal.
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arose out of conduct that allegedly occurred at [Appellant’s] home
after the teenage female victim, who was babysitting [Appellant’s]
children, had gone to sleep.
On August 23, 2017, [Appellant] entered a plea of nolo
contendere to the Corruption of Minors charge, a misdemeanor of
the first degree. During the hearing, [Appellant] agreed that the
Commonwealth would be able to establish the following facts, as
recited on the record by the District Attorney:
[Appellant], at the age of 32 more or less, had indecent
contact with the seventeen year old female whose-who [sic]
testified at the preliminary hearing, . . . [in that he had]
manual contact with her vaginal area and digital penetration
of her vagina. This occurred in Wysox Township in
[Appellant’s] home in the summer of 2016.
See Tr. 8/23/17, 4:17-24.
On October 23, 2017, [Appellant] was sentenced to total
confinement and fines and costs, such that [Appellant] shall
undergo an indeterminate period of incarceration, the minimum
of which shall be nine (9) months and the maximum of which shall
be twenty-three (23) months. The sentence was a County
sentence and within the standard range. [Appellant] also received
a fine in the amount of Five Hundred Dollars ($500).
On October 27, 2017, [Appellant] filed a post sentence
motion seeking reconsideration of the length of the sentence on
the basis that “his prior record score was the result of old
charges.” See Motion, para. 4.
On November 21, 2017, this Court denied [Appellant’s] post
sentence motion, finding that the sentence “was appropriate given
the nature and circumstances of the crime, the background and
character of [Appellant], and the sentencing guidelines.” See
Order, dated November 21, 2017. The Court also noted that the
duration of the confinement “was consistent with the appropriate
level of protection of the public, the gravity of the offense as it
related to the impact on the life of the victim and the community,
and the rehabilitative need of [Appellant].” Id.
On December 8, 2017, [Appellant] filed a timely Notice of
Appeal.
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Trial Court Opinion, 2/26/18, at 1-2.
On December 18, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. On December 29, 2017, Counsel
filed a statement of intent to file an Anders brief.3 On April 6, 2018, Counsel
filed a brief with this Court, in which he petitioned for leave to withdraw from
representation pursuant to Anders.4
Preliminarily, we note that there are particular mandates that counsel
seeking to withdraw pursuant to Anders must follow. These mandates and
the significant protection they provide to an appellant arise because a criminal
defendant has a constitutional right to a direct appeal and to counsel on that
appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
We have summarized these requirements as follows:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
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3 In averring that Appellant’s appeal was “frivolous,” Counsel nonetheless
indicated that Appellant wished to challenge the validity of his plea and the
inappropriateness of his sentence.
4 Counsel did not file a separate petition to withdraw, but rather appended his
petition to his Anders brief. While this is satisfactory, we note our preference
that counsel file a separate petition to withdraw. See Commonwealth v.
Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995) (“Although we believe the
more desirable practice would be to submit a separate withdrawal request to
the court, we . . . treat counsel’s [request] in the brief as such a request.”);
see also Commonwealth v. Green, 513 A.2d 1008, 1010 (Pa. Super. 1986).
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must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate’s brief on
Appellant’s behalf).
Id. (citations omitted).
Additionally, there are requirements as to what an Anders brief must
contain:
[T]he Anders brief that accompanies court-appointed counsel’s
petition to withdraw … 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. When faced with a purported Anders brief, we
may not review the merits of the underlying issues without first deciding
whether counsel has properly requested permission to withdraw.
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation
omitted). If counsel meets these obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
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proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.
Instantly, we conclude that Counsel has complied with the technical
requirements of Anders. Counsel has filed a petition to withdraw with this
Court. In conformance with Santiago, Counsel has also filed a brief which
includes the facts and procedural history of the case, and discusses the issues
which might arguably support Appellant’s appeal, i.e., whether “Appellant
should be allowed to withdraw a plea of no contest,” and “the sentence of the
court was excessive.” See Anders Brief at 5. Counsel’s brief additionally
sets forth his conclusion that the appeal is frivolous and includes citation to
relevant authority. See id. at ii, 3, 11. Finally, Counsel provided this Court
with a copy of the letter that he sent to Appellant, which Counsel served upon
Appellant, along with Counsel’s petition and Anders brief, and advised
Appellant of his right to proceed pro se or with private counsel and to raise
any additional issues that he deems worthy of this Court’s consideration.
As noted above, the issues presented by Counsel in the Anders brief is
whether Appellant’s plea was knowingly and voluntarily entered, and whether
the court imposed an excessive sentence. We have reviewed the written plea
colloquy as well as the notes of testimony from the August 23, 2017 plea
hearing, both of which indicate that Appellant entered his plea knowingly,
intelligently, and voluntarily. Moreover, Appellant did not seek to withdraw
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his guilty plea at the hearing, nor did he file a post-sentence motion to
withdraw his guilty plea within ten days of sentencing. We have explained:
A defendant wishing to challenge the voluntariness of a guilty plea
on direct appeal must either object during the plea colloquy or file
a motion to withdraw the plea within ten days of sentencing.
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver. Historically, Pennsylvania courts
adhere to this waiver principle because it is for the court which
accepted the plea to consider and correct, in the first instance,
any error which may have been committed.
Commonwealth v. Lincoln, 72 A.3d 606, 609–610 (Pa. Super. 2013)
(citations and quotations omitted).
Based on the foregoing, Appellant waived any challenge to the validity
of his plea. In addition, our review of the record comports with the trial court’s
determination that “a review of the transcript of the plea hearing and the
written plea colloquy completed by [Appellant] confirms that [Appellant] is
unable to establish that his plea of nolo contendere was anything but knowing,
voluntary and intelligent.” Trial Court Opinion, 2/26/18, at 3 (citations
omitted). Counsel is thus correct that raising this issue on appeal would be
frivolous.
With regard to Appellant’s sentencing claim, we have likewise reviewed
the record, and particularly the notes of testimony from the October 23, 2017
hearing. The trial court stated that it reviewed the pre-sentence investigation
report, and after further discussion, imposed a standard range sentence of 9
to 23 months of incarceration, with eligibility for work release, stating to
Appellant, “I hope you’re able to keep your job and keep supporting your
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family while you’re incarcerated.” N.T., 10/23/17, at 1, 8-10. On this record,
Appellant claims that his sentence “is excessive . . . [and] should have been
shorter.” Anders Brief at 7.
This claim challenges the discretionary aspects of Appellant’s sentence.
Our standard of review when considering discretionary aspects of sentencing
claims is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal
quotations and citations omitted).
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),
appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-
part test to invoke this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.” Id. We conduct this four-part test to determine
whether:
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(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Appellant has substantially complied with the first three prongs of the
discretionary aspect test to invoke our jurisdiction. However, Appellant has
failed to meet the fourth prong because he has not presented a substantial
question. “[W]here the sentencing court imposed a standard-range sentence
with the benefit of a pre-sentence report, we will not consider the sentence
excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011).
“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. (quotations and
citations omitted). Again, our review of the record reveals no support for
Appellant’s claim that his sentence was excessive, and we agree with Counsel
that Appellant’s discretionary aspects of sentencing claim is frivolous.
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Finally, after conducting our own independent review of the record, we
have determined that there are no issues of merit and agree with Counsel’s
assessment that Appellant’s direct appeal is frivolous. We thus find this appeal
wholly frivolous and permit Counsel to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2018
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