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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACQUAN CLIFTON CULBERT :
:
Appellant : No. 1496 MDA 2022
Appeal from the Judgment of Sentence Entered September 13, 2022
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000336-2022
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 7, 2023
Jacquan Clifton Culbert (“Culbert”) appeals from the judgment of
sentence imposed after he pleaded guilty to simple assault and false
imprisonment.1 Additionally, Culbert’s counsel has filed a petition to withdraw
and an accompanying brief pursuant to Anders v. California, 386 U.S. 738
(1967). We affirm and grant counsel’s petition to withdraw.
Culbert, after admitting that he punched his wife in her face and did not
let her leave their bedroom, entered an open guilty plea to the above-stated
offenses. See N.T., 6/27/22, at 3; see also Affidavit of Probable Cause,
2/15/22, at 1. On September 13, 2022, the trial court held a sentencing
hearing, at which the parties discussed a presentence investigation report and
highlighted the information contained in the report, including Culbert’s mental
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1 See 18 Pa.C.S.A. §§ 2701(a)(1), 2903(a).
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health issues. See N.T., 9/13/22, at 1-3. Culbert’s counsel at the time argued
in favor of time-served sentences. See id. at 2-3.2 Culbert then apologized
to the court and his wife, see id. at 4, after which the trial court announced
its sentence of twelve to twenty-four months of imprisonment for simple
assault and a consecutive six to twenty-four months of imprisonment for false
imprisonment. See id. The trial court offered no further statements
concerning sentencing. See id.
Culbert timely filed a post-sentence motion for reconsideration of
sentence and asserted, in relevant part:
. . . [Culbert] suffers from several severe mental health disorders,
including bipolar disorder, schizophrenia and PTSD that affected
his thought process and actions on the day of the incident.
. . . Due to the facts and circumstances surrounding the instant
case, [Culbert] respectfully requests that th[e trial court]
reconsider the sentence imposed and consider imposing a
concurrent sentence[,] because both offenses . . . occurred
essentially simultaneously to each other during the midst of a
domestic dispute.
Post-Sentence Motion, 9/19/22, at 2.3
The trial court denied Culbert’s post-sentence motion, and Culbert
timely appealed. Culbert filed a court-ordered Pa.R.A.P. 1925(b) statement
claiming that (1) the trial court failed to state the reasons for its sentences
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2 Different attorneys from the Public Defender’s Office represented Culbert
during his guilty plea and sentencing, and in the present appeal.
3 Culbert’s post-sentence motion also asserted that (1) while he had a prior
record score of four, his last conviction was in 2011; (2) he had been on parole
for three years without a violation and was gainfully employed; and (3) he
was facing a parole violation. See Post-Sentence Motion, 9/19/22, at 1.
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and (2) the sentences were harsh and excessive given his mental health
issues. See Rule 1925(b) Statement, 11/10/22, at 1. The trial court filed a
Rule 1925(a) opinion concluding that Culbert waived his claim that it failed to
state the reasons for its sentences and Culbert’s claim that the aggregate
sentence was harsh and excessive does not raise a substantial question for
review. See Trial Court Opinion, 1/10/23, at 7-8. Culbert’s present counsel
has filed in this Court an Anders brief and a petition to withdraw from
representation.
Before considering the merits of the issues identified by Culbert’s
counsel, we must first consider her request to withdraw. See
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Counsel who wishes to withdraw on appeal 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
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 accordance with Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), the brief accompanying counsel’s petition to withdraw must also
(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
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case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361. Once counsel has complied with these procedural
requirements, we will review the record and render an independent judgment
as to whether the appeal is wholly frivolous. See Commonwealth v.
Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Here, Culbert’s counsel states that she has conscientiously examined
the record and determined that this appeal is wholly frivolous. See Anders
Brief at 8. Her Anders brief provides a summary of the procedural history
and facts of the case. See id. at 5. Counsel sets forth her conclusion that
this appeal is frivolous because Culbert has not preserved his intended issues
for appellate review, and she provides citations to the case law and rules of
procedure that led to her conclusion. See id. at 7-8. She has also attached
to her petition to withdraw a letter advising Culbert of her intent to withdraw,
stating that she enclosed a copy of her Anders brief and apprising Culbert of
his right to proceed pro se or with private counsel. We conclude that Culbert’s
counsel has substantially complied with the procedural requirements to
withdraw.4 Accordingly, we will proceed to an independent review to
determine if this appeal is frivolous. See Yorgey, 188 A.3d at 1197.
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4 We note, with disapproval, that Culbert’s counsel devotes much of her
Anders brief to alternative arguments based on her belief that this Court
should vacate Culbert’s sentences notwithstanding her conclusion that Culbert
waived his intended claims for review. Such a mixed approach could confuse
a defendant concerning the actual merits of his appeal and/or the need to
respond immediately. However, because Culbert’s counsel has clearly advised
(Footnote Continued Next Page)
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Culbert’s counsel identifies the following issues for review:
A. Whether the trial court failed to state on the record the reasons
for the sentences imposed as required by Pa.R.Crim.P.
[704(C)(2)].5
B. Whether the sentences imposed were harsh and excessive, and
an abuse of discretion[,] given [Culbert]’s mental health
issues.
Anders Brief at 4.6
Both issues discussed by Culbert’s counsel concern the discretionary
aspects of sentencing. See Commonwealth v. Schmidt, 165 A.3d 1002,
1007 (Pa. Super. 2017) (discussing a harsh-and-excessive claim);
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003) (discussing
a claim that the trial court failed to state the reasons for the sentence).
It is well-settled that “[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of right.” Commonwealth
v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits
of a discretionary sentencing issue,
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him of her intent to withdraw, identified waiver as the threshold issue, and
informed him of his appellate rights, we will not require an amended brief.
5 Throughout her Anders brief, Culbert’s counsel mistakenly cites Rule 708,
which governs sentences imposed following the revocation of probation or
parole. However, the Rule 704, which governs the procedure at the time of
sentencing, has an identical requirement that the trial court state the reasons
for the sentence imposed. Compare Pa.R.Crim.P. 704(C)(2) with
Pa.R.Crim.P. 708(D)(2).
6Culbert has not responded to his counsel’s petition to withdraw or the
Anders brief.
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[this Court conducts] 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. [720]; (3) whether appellant’s brief
has a fatal defect, [see] 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, [see] 42 Pa.C.S.A. §
9781(b).
Id. (citation omitted).
“Issues not raised in the trial court are waived and cannot be raised for
the first time on appeal.” Pa.R.A.P. 302(a). The failure to preserve an
objection to the discretionary aspects of sentencing during the sentencing
proceeding or in a post-sentence motion results in the waiver of the objection,
and a party cannot preserve a claim for appeal by raising it for the first time
in a Rule 1925(b) statement. See Commonwealth v. Watson, 835 A.2d
786, 791 (Pa. Super. 2003).
Our review of the record confirms that Culbert did not object at the
sentencing hearing. See N.T., 9/13/22, at 4. Although he filed a post-
sentence motion, the motion did not preserve a claim that the trial court failed
to state the reasons for its sentence. See Post-Sentence Motion, 9/19/22, at
1-2. Moreover, Culbert did not assert that the sentences were harsh or
excessive, nor did he even allege that the trial court had abused its discretion.
See id. Culbert’s counsel, instead, raised claims that the trial court failed to
state the reasons for the sentence and imposed harsh and excessive sentences
for the first time in a Rule 1925(b) statement. Therefore, we agree with
Culbert’s counsel that Culbert has waived his intended claims and this appeal
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is frivolous. See Schmidt, 165 A.3d at 1007; Mann, 820 A.2d at 794; see
also Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008)
(noting that the pursuit of a waived claim on appeal is frivolous).
Thus, having conducted an independent review of the record, we agree
with Culbert’s counsel that this appeal is frivolous because none of Culbert’s
intended issues have been preserved for review. See Kalichak, 943 A.2d at
291. Because our independent review of the record reveals no issues of
arguable merit preserved for this appeal, we affirm the judgment of sentence
and grant Culbert’s counsel petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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