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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WALTER JORDAN, :
:
Appellant : No. 3855 EDA 2017
Appeal from the Judgment of Sentence October 3, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003741-2017
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 18, 2018
Appellant Walter Jordan appeals from the Judgment of Sentence
imposed after he entered an open guilty plea to Driving Under the Influence
(“DUI”)-Third Offense, and Driving While License Suspended-DUI Related.1
Appellant’s counsel seeks to withdraw pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). Upon review, we grant Counsel’s Petition to Withdraw and affirm the
Judgment of Sentence.
On October 2, 2017, while represented by counsel, Appellant entered
an open guilty plea to the above charges. At Appellant’s request, the court
immediately sentenced him to a term within the mitigated range of the
Sentencing Guidelines of 11½ to 23 months’ incarceration followed by 3 years’
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1 75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S. § 1543(b)(1).
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probation for the DUI. See N.T., 10/2/17, at 11-12. The court imposed a
concurrent term of 60 days’ incarceration for the Driving with a Suspended
License offense. The court denied Appellant’s Post-Sentence Motions2 after a
hearing.
Appellant timely appealed on November 2, 2017.3 Appellant’s counsel
filed a Pa.R.A.P. 1925(c)(4) Statement, and the trial court filed a Rule 1925(a)
Opinion.
In the Anders Brief, counsel raised one “Point of Arguable Merit”
challenging the sentence of 11½ to 23 months’ incarceration as too harsh.
Anders Brief at 7.
We first consider Counsel’s Petition to Withdraw. When presented with
an Anders Brief, this Court may not review the merits of the underlying issues
without first passing on the request to withdraw. Before counsel is permitted
to withdraw, he or she must meet the following requirements:
First, counsel must petition the court for leave to withdraw and
state that after making a conscientious examination of the record,
he has determined that the appeal is frivolous; second, he must
file a brief referring to any issues in the record of arguable merit;
and third, he must furnish a copy of the brief to the defendant and
advise him of his right to retain new counsel or to himself raise
any additional points he deems worthy of the Superior Court’s
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2Appellant filed counseled as well as pro se Post-Sentence Motions. The trial
court properly concluded that “hybrid representation” is prohibited, and
concluded that Appellant’s pro se filings were legal nullities. Order, 10/17/17,
at 2 n.3.
3On November 13, 2017, Appellant filed a pro se Motion for Early Parole,
which the trial court denied on November 14, 2017.
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attention.
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2008)
(citations omitted).
[I]n 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “[W]hen
counsel meets his or her obligations, ‘it then becomes the responsibility of the
reviewing court to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.’” Id. at 355 n.5.
Here, Counsel’s Petition to Withdraw states that he has made a
conscientious examination of the record, determined that the appeal is wholly
frivolous, notified Appellant of his opinion and provided him with a copy of his
Anders Brief, and advised Appellant that he may proceed pro se or retain
private counsel. Furthermore, we are satisfied that Counsel’s Anders brief
complies with the dictates of Santiago. We therefore proceed to an
independent review of Appellant’s sole issue—a challenge to the discretionary
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aspects of his sentence.4 See Bynum-Hamilton, 135 A.3d at 183.
With respect to our review of a challenge to the discretionary aspects of
sentence, this Court has stated:
A challenge to the discretionary aspects of sentencing does not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test: (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. 720;
(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).
Bynum-Hamilton, 135 A.3d at 184 (some citations omitted). Where counsel
files an Anders Brief, we may overlook the lack of a Rule 2119(f) statement.
Id.
Here, Appellant filed a timely Notice of Appeal and sought
reconsideration of his sentence in a timely Post-Sentence motion. The Anders
Brief includes a “Petition for Allowance of Appeal from the Discretionary
Aspects of the Judgment of Sentence,” but Counsel concludes, after citing
relevant case law, that Appellant’s challenge to his sentence as harsh does
not raise a substantial question. Counsel’s conclusion does not impede our
independent consideration of whether the issue presents a substantial
____________________________________________
4Appellant did not respond to Counsel’s Petition to Withdraw and Anders
Brief.
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question.
In determining whether a substantial question exists, this Court
does not examine the merits of whether the sentence is actually
excessive. Rather, we look to whether the appellant has forwarded
a plausible argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable. Concomitantly, the
substantial question determination does not require the court to
decide the merits of whether the sentence is clearly unreasonable.
Com. v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (internal citation
omitted).
In challenging a sentence that falls within the guidelines, a defendant
must “advance[] 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, 912-13 (Pa. Super.
2000).
At the hearing on the Motion for Reconsideration, the court noted that
it had mitigated the standard range sentence to a minimum of 11½ months
so that Appellant could stay in county jail, recognizing Appellant’s
circumstances, i.e., his family, work ethic, and show of remorse at the time
of the plea, while also considering Appellant’s prior record. See N.T.
Reconsideration, 10/24/17, 4, 19-20. See also N.T. Sentencing at 18-19
(noting mitigation of sentence). Our independent review of the record reveals
no evidence that would support an argument that the mitigated standard
range sentence was “inconsistent with a specific provision of the Sentencing
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code” or “contrary to the fundamental norms underlying the sentencing
process.” Sierra, supra at 912-13. Thus, we conclude Appellant has failed
to raise a substantial question.
Further, after conducting a full examination of all the proceedings, as
required pursuant to Anders, we discern no non-frivolous issues to be raised
on appeal. See Commonwealth v. Yorgey, 188 A.3d 1190, 1198-99 (Pa.
Super. 2018). We therefore grant Counsel’s Petition to Withdraw and affirm
the Judgment of Sentence.
Petition to Withdraw granted. Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/18
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