J-S22041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MUAAWIYA MUHAMMAD :
:
Appellant : No. 2351 EDA 2017
Appeal from the Judgment of Sentence June 1, 2017
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0000918-2012
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JULY 19, 2018
Appellant, Muaawiya Muhammad, appeals from the judgment of
sentence imposed after revocation of his probation following his guilty plea to
probation violations. Appointed counsel has filed a petition for leave to
withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant
counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.
We take the following facts from the trial court’s November 21, 2017
opinion, and our independent review of the certified record.
On September 25, 2011, [Appellant] was arrested by a
Chester, [Pennsylvania] City police officer and charged with
possessing firearms without a license, possession of marijuana,
criminal trespass and various other offenses. On March 27, 2012,
he entered into a negotiated guilty plea pursuant to which he
[pleaded] guilty to carrying firearms without a license (18
Pa.C.S.[A.] § 6106(a)(1)) and was sentenced to a period of
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* Retired Senior Judge assigned to the Superior Court.
J-S22041-18
incarceration of [not less than eighteen nor more than thirty-six]
months followed by three years of probation. The remaining
charges were dismissed.
On June [14], 2015, while on probation, [Appellant] was
arrested in Chester, [Pennsylvania] and charged with possession
of firearms and related offenses. On November 3, 2016, he was
found guilty [of persons not to possess firearms and firearms not
to be carried without a license]. ([See] Docket No. CP-23-CR-
[0004256]-2015)[.] On April [12], 2017, [the trial court]
sentenced him to a term of incarceration of [not less than sixty
nor more than 120 months for persons not to possess firearms,
and a concurrent term of not less than forty-two nor more than
eighty-four months for firearms not to be carried without a
license]. [Appellant] filed an appeal, which is pending before the
Superior Court at Docket No. [1647] EDA 2017.
On June 1, 2017, [the trial court] conducted a Gagnon II[1]
hearing, at which it found [Appellant] in violation of the terms of
his probation. It adopted the Commonwealth’s recommendation
and sentenced [Appellant] to a term of incarceration of [not less
than twelve nor more than twenty-four] months in a state
correctional institution, consecutive to the sentence imposed at
Docket No. CP-23-CR-[0004256]-2015.
On June 12, 2017, [Appellant’s] counsel filed a motion for
reconsideration of sentence. On June [23], 2017, [the trial court]
scheduled a hearing for the motion for July 5, 2017. On [July] 3,
2017, before the hearing could be held, counsel filed a [n]otice of
[a]ppeal.
(Trial Court Opinion, 11/21/17, at 1-2). On November 3, 2017, counsel filed
a statement of intent to file a motion to withdraw and Anders brief. See
Pa.R.A.P. 1925(c)(4). The trial court entered its opinion on November 21,
2017. See Pa.R.A.P. 1925(a). On January 16, 2018, counsel filed a motion
to withdraw and an Anders brief on the basis that the appeal is wholly
frivolous. Appellant has not responded.
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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The standard of review for an Anders brief is well-settled.
Court-appointed counsel who seek to withdraw from representing
an appellant on direct appeal on the basis that the appeal is
frivolous 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) file a brief referring to anything that
arguably might support the appeal but which does not
resemble a “no-merit” letter or amicus curiae brief;
and (3) furnish a copy of the brief to the defendant
and advise the defendant of his or her right to retain
new counsel or raise any additional points that he or
she deems worthy of the court’s attention.
[T]his Court may not review the merits of the underlying
issues without first passing on the request to withdraw.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations
and quotation marks omitted). Further, our Supreme Court ruled in
Santiago, supra, that Anders briefs must contain “a discussion of counsel’s
reasons for believing that the client’s appeal is frivolous[.]” Santiago, supra
at 360.
Here, counsel’s Anders brief and motion to withdraw substantially
comply with the applicable technical requirements and demonstrate that he
“has made a conscientious examination of the record in this case and has
determined that an appeal would be frivolous.” Lilley, supra at 997. The
record establishes that counsel served Appellant with a copy of the Anders
brief and motion to withdraw, and a letter of notice, which advised Appellant
of his right to retain new counsel or to proceed pro se and raise additional
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issues to this Court. (See Motion to Withdraw as Counsel, 1/16/18, Exhibit
A). Further, the motion and brief cite “to anything that arguably might support
the appeal[.]” Lilley, supra at 997 (citation omitted); (see also Anders
Brief, at 5-9). As noted by our Supreme Court in Santiago, the fact that
some of counsel’s statements arguably support the frivolity of the appeal does
not violate the requirements of Anders. See Santiago, supra at 360-61.
Accordingly, we conclude that counsel complied with Anders’ technical
requirements. See Lilley, supra at 997.
Having concluded that counsel’s petition and brief substantially comply
with the technical Anders requirements, we must “conduct [our] own review
of the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 (citation
and internal quotation marks omitted).
The Anders brief raises one question2 for our review: “[Whether] the
sentence imposed at the Gagnon II hearing on June 1, 2017, is manifestly
excessive in that it was ordered to be served consecutively to the sentence
imposed at [Docket] No. 4256-201[5,]” because “the [c]ourt, having
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2 The Anders brief fails to conform to the Pennsylvania Rules of Appellate
Procedure, because it does not set forth a statement of the questions
presented. See Pa.R.A.P. 2116(a). However, because the argument section
identifies the specific issue raised, “Appellant’s failure to comply with Rule
2116(a) does not impede our ability to review the issue, and, accordingly, we
will address the merits of its appeal.” Commonwealth v. Long, 786 A.2d
237, 239 n.3 (Pa. Super. 2001), aff'd, 819 A.2d 544 (Pa. 2003).
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previously sentenced Appellant, was aware that Appellant has mental health
issues of a cognitive nature and that Appellant’s family supports him[, and]
disregarded these critical factors[?]” (Anders Brief, at 5) (emphasis omitted).
The issue raised challenges the discretionary aspects of Appellant’s
sentences.
[T]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence. Rather, an [a]ppeal is
permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under
the sentencing code. . . .
In addition, issues challenging the discretionary aspects of
a sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived. Furthermore, a defendant is
required to preserve the issue in a court-ordered
Pa.R.A.P.1925(b) concise statement and a Pa.R.A.P. 2119(f)
statement.
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)
(citations and quotation marks omitted).
Here, Appellant raised his challenge to the discretionary aspects of his
sentence in his post-sentence motion. He also included a Pa.R.A.P. 2119(f)
statement in his Anders brief. (See Anders Brief, at 5). Moreover,
Appellant’s claim that the trial court failed to consider all relevant factors in
imposing sentence, including the support of his family and his mental health
condition, raises a substantial question for our review. See Cartrette, supra
at 1042-43 (reasoning that failure to consider sentencing factors presents
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substantial question). Therefore, we will consider the merits of Appellant’s
claim.
Our standard of review of an appeal from a sentence imposed following
the revocation of probation is well-settled: “Revocation of a probation
sentence is a matter committed to the sound discretion of the trial court and
that court’s decision will not be disturbed on appeal in the absence of an error
of law or an abuse of discretion.” Commonwealth v. Colon, 102 A.3d 1033,
1041 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015) (citation and
internal quotation marks omitted). Additionally, “upon revocation [of
probation], the sentencing alternatives available to the court shall be the same
as the alternatives available at the time of initial sentencing. . . . [T]he trial
court is limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence.” Commonwealth v.
Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (citations and internal quotation
marks omitted).
Here, the record reveals that during his Gagnon II hearing on June 1,
2017, the court determined that Appellant violated his probation by being
convicted of another offense. (See N.T. Hearing, 6/01/17, at 8, 10). During
the hearing the court acknowledged both that Appellant’s family members
cared about him, and that he suffered from cognitive difficulties. (See id. at
8-10). Moreover, the sentence imposed was less than the maximum sentence
that could have been imposed originally at Appellant’s initial sentencing. See
Infante, supra at 365.
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Therefore, we discern no error of law or abuse of discretion. See Colon,
supra at 1041; Infante, supra at 365. Furthermore, after our independent
review of the record as required by Anders and Santiago, we conclude that
no non-frivolous issues exist.
Motion to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/18
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Com. v. Muhammad, M.
Combined Opinion