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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SONYA LOUISE WINTERS :
:
Appellant : No. 974 MDA 2018
Appeal from the Judgment of Sentence May 15, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000266-2018
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 11, 2019
Sonya Louise Winters (“Appellant”) appeals from the judgment of
sentence entered after she pled guilty to one count of delivery of a controlled
substance.1 In addition, counsel has filed a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 209).2 We permit counsel
to withdraw and affirm the judgment of sentence.
The record reveals that, at 1:43 p.m. on January 18, 2018, Appellant
delivered approximately one and one-half grams of cocaine to a confidential
informant in the Loyalsock Township K-Mart parking lot, pursuant to a
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1 35 P.S. § 780-113(a)(30).
2The Commonwealth chose not to file a brief. Letter to Superior Court Deputy
Prothonotary, 9/27/18.
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controlled buy supervised by State Police Trooper Tyler Morse. Affidavit of
Probable Cause, 1/30/18, at 5–6. In a criminal complaint filed at CP-41-CR-
0000266-2018, the Commonwealth charged Appellant with two counts of
delivery of a controlled substance (cocaine), one count of criminal use of
communication facility, one count of possession of a controlled substance, and
one count of driving without a license. Complaint, 1/30/18, at 2–4.
Pursuant to a negotiated plea agreement, Appellant pled guilty to one
count of delivery of a controlled substance. Guilty Plea, 3/5/18. The trial
court sentenced Appellant to incarceration for a term of nine months to forty-
eight months. N.T. Sentencing, 5/15/18, at 16. Appellant was eligible for the
Recidivism Risk Reduction Incentive (RRRI)3 at six months and twenty-two
days. Id. Appellant filed a timely motion for reconsideration of sentence on
May 25, 2018, which the trial court denied on June 8, 2018. This appeal
followed. Appellant and the trial court complied with Pa.R.A.P. 1925.
Before we address any questions raised on appeal, we must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (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
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3 61 Pa.C.S. §§ 4501-4512.
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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).
In this case, counsel averred that he “reviewed the original file and the
transcripts from the proceedings, consulted with Appellant’s original attorney,
and finds no justifiable issues upon which this appeal can be based.” Anders
Brief at 8. 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 to
withdraw. In the letter, counsel advised Appellant that she could represent
herself or that she could retain private counsel. Appellant has not filed any
additional documents with this Court.
We now examine whether the brief satisfies our Supreme Court’s
dictates in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), 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.
Id. at 361.
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Here, counsel’s brief is sufficiently compliant with Santiago. The brief
sets forth the procedural history of this case,4 outlines pertinent case
authority, and discusses counsel’s conclusion that the appeal is frivolous. We
thus conclude that counsel has met the procedural and briefing requirements
for withdrawal. “[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.’” Santiago, 978 A.2d at 355 n.5 (quoting
Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).
Counsel for Appellant has indicated that, after a thorough and careful
review of the certified record, there are no meritorious issues. Anders Brief
at 8. However, counsel does set forth one possible issue on Appellant’s behalf:
I. Did the trial court abuse its discretion when imposing a
sentence of nine (9) to forty-eight (48) months confinement
in a state correctional institution; a sentence that fails to
consider the history, characteristics, and rehabilitative
needs of the Appellant?
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4 Counsel has failed to include a factual summary and does not provide record
citations in the procedural summary in contravention of Pa.R.A.P. 2117(a)(4)
and 2119(c). We admonish counsel that it “is not this Court’s responsibility
to comb through the record seeking the factual underpinnings of [Appellant’s]
claim.” Irwin Union Nat. Bank & Tr. Co. v. Famous, 4 A.3d 1099, 1103
(Pa. Super. 2010) (citing Commonwealth v. Mulholland, 702 A.2d 1027,
1034 n.5 (Pa. 1997)).
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Anders Brief at 4 (full capitalization omitted).5
This issue presents a challenge to the discretionary aspects of
Appellant’s 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).
An appellant challenging the discretionary aspects of her 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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)). The
determination of whether there is a substantial question is made on a case-
by-case basis, and this Court will grant the appeal only when the appellant
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5 We note that counsel included a second issue: “Should an application to
withdraw as counsel be granted where counsel has investigated the possible
grounds of appeal and finds the appeal frivolous?” Anders Brief at 4. This
issue is implicit in counsel’s petition to withdraw.
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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. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015). “[W]e
cannot look beyond the statement of questions presented and the prefatory
2119(f) statement to determine whether a substantial question exists.”
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)
(citation omitted).
Herein, the first three requirements of the four-part test are satisfied:
Appellant brought a timely appeal, raised the challenge in a post-sentence
motion, and, at page seven of the Anders brief, included a concise statement
of the reasons relied upon for allowance of appeal. Therefore, we next
determine whether Appellant raised a substantial question requiring us to
review the discretionary aspects of the sentence imposed by the trial court.
On Appellant’s behalf, counsel submits that “the trial court imposed a
sentence that is manifestly excessive in relation to [Appellant’s]
characteristics, nature of the offense, and rehabilitative needs.” Anders Brief
at 7. Appellant seeks a county sentence. Id. We conclude that Appellant’s
challenge to the imposition of her sentence as excessive, together with her
claim that the trial court failed to consider her rehabilitative needs, presents
a substantial question. See Commonwealth v. Johnson, 125 A.3d 822 (Pa.
Super. 2015) (excessive sentence claim, in conjunction with assertion that
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sentencing court failed to consider mitigating factors, raises a substantial
question). Thus, we grant Appellant’s application for allowance of appeal and
address the merits of this sentencing claim. Caldwell, 17 A.3d at 770.
The record reveals that the trial court reviewed on the record a pre-
sentence investigation report (“PSI”) provided by the Pennsylvania Board of
Probation and Parole. N.T. Sentencing, 5/15/18, at 3–7. Moreover, defense
counsel advised the court of Appellant’s efforts to obtain a mental health, drug
and alcohol evaluation and a recent hospitalization, which has caused
Appellant “to finally begin[] to address the deep underlying issue[], which
seems to be mental health.” Id. at 13. Thus, the trial court was aware of
Appellant’s background, criminal history, mental health diagnosis, and failure
to obtain and maintain treatment.
The trial court stated the basis for Appellant’s sentence as follows:
[Appellant] had contacts with Lewistown in Mifflin County,
Mt. Union Police Department, and Pennsylvania State Police
Huntington dating back to 2001.3 In 2013 [Appellant’s] State IP
was revoked and she was resentenced to fifteen (15) to thirty (30)
months which she maxed out.4 [Appellant] was then charged with
Aggravated Assault while under the [i]nfluence, to which she
plead guilty to a DUI and served a sentence of one (1) year and
one (1) day to two (2) years and two (2) days in [a] state
correctional institution.5 Upon release, she accumulated a number
of summary offenses in both Lewistown and Grandville Township.6
[Appellant] was determined to have minimal contacts with county
[sic], expressed wishes to be closer to her son and mother in
New[ton] Hamilton, Pennsylvania, and had previous contacts with
the state prison system. This information[,] in addition to her bail
being revoked prior to sentencing due to reliable evidence that
[Appellant] had produced three positive patches for cocaine, failed
to follow up with the recommended treatment and services, failed
to reside at her approved address, and failed to comply with the
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directives of the supervised bail office, showed this [c]ourt
[Appellant’s] unwillingness to engage in steps to seek the help she
requires.7
3 See N.T., May 15, 2018 at page 3.
4 Id.
5 Id. at 4.
6 Id.
7 Id. at 10–17.
Contrary to [Appellant’s] assertion now, the [c]ourt did
consider her need for rehabilitation. As the [c]ourt noted at
sentencing, however, most of the opportunities for rehabilitation
are “self-reporting” and [Appellant’s] failure to “self-report”
prevented her from taking advantage of those opportunities.8
Given the numerous times this issue was addressed in dealing with
the multiple violations committed by [Appellant] throughout her
bail supervision, the [c]ourt did not believe that the sudden
interest in rehabilitation expressed by [Appellant] at sentencing
was sincere.
8 Id. at 16–17.
A review of the matter clearly showed that all county-level
efforts at rehabilitation had been exhausted and her contacts with
the county were transient. The instant sentence does provide
[Appellant] with the opportunity to participate in drug, alcohol,
and mental health treatment while incarcerated, and she will be
able to pursue further treatment upon release to supervision.
Trial Court Opinion, 8/10/18, at 1–2.
Upon review, we conclude Appellant’s claim that the trial court failed to
consider Appellant’s characteristics, the nature of the offense, and her
rehabilitative needs is meritless. Indeed, equipped with a PSI, the trial court
considered all of the factors Appellant identifies on appeal as relevant to
consideration of her personal circumstances and characteristics. See
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (“Where
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the sentencing judge had the benefit of a presentence investigation report, it
will be presumed that he or she was aware of the relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.”). Specifically, the trial court considered
Appellant’s recidivism and repeated failures to avail herself of the
opportunities to rehabilitate. Trial Court Opinion, 8/10/18, at 1–2. The
sentence was not excessive in light of those factors. Appellant has failed to
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. Thus,
Appellant’s sentencing challenge lacks merit.
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. See Commonwealth v. Flowers, 113 A.3d 1246,
1250 (Pa. Super. 2015) (holding that, after determining 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.
Petition to withdraw as counsel granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/11/2019
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Com. v. Winters, S.
Combined Opinion