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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALBERT EARL MORTON
Appellant No. 479 MDA 2016
Appeal from the Judgment of Sentence January 26, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003513-2013
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 13, 2017
Albert Earl Morton appeals from his judgment of sentence, imposed in
the Court of Common Pleas of Dauphin County, after a jury found him guilty
of carrying a firearm without a license, tampering with evidence, possession
of drug paraphernalia, and possession of a small amount of marijuana.
Counsel has petitioned this Court to withdraw from her representation of
Morton pursuant to Anders, McClendon and Santiago.1 Upon review, we
affirm Morton’s judgment of sentence and grant counsel’s petition to
withdraw.
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1
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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In order to withdraw pursuant to Anders, counsel must: (1) petition
the Court for leave to withdraw, certifying that after a thorough review of
the record, counsel has concluded the issues to be raised are wholly
frivolous; (2) file a brief referring to anything in the record that might
arguably support an appeal; and (3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief raising any additional points that the appellant deems worthy of review.
Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the Pennsylvania
Supreme Court held that, in order to withdraw under Anders, counsel must
also state her reasons for concluding her client’s appeal is frivolous.
Instantly, counsel’s petition states that she has made an examination
of the record and concluded the appeal is wholly frivolous. Counsel indicates
that she supplied Morton with a copy of the brief and a letter explaining his
right to proceed pro se,2 or with newly-retained counsel, and to raise any
other issues he believes might have merit. Counsel has also submitted a
brief, setting out in neutral form the issue raised by Morton and, pursuant to
the dictates of Santiago, explains why she believes the claim to be
frivolous. Thus, counsel has substantially complied with the requirements
for withdrawal.
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2
Morton has not submitted any additional or supplemental filings to this
Court.
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Counsel having satisfied the above requirements, this Court must
conduct its own review of the proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Morton asserts that the sentence imposed by the trial court was
excessive and unreasonable and did not take into consideration his
rehabilitative needs. This claim implicates the discretionary aspects of
Morton’s sentence. Such a claim does not entitle an appellant to review as a
matter of right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super.
2015). Rather, before this Court can address such a discretionary challenge,
an appellant must comply with the following requirements:
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.
Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011).
Here, Morton filed a post-sentence motion raising his sentencing claim,
followed by a timely notice of appeal to this Court. He has also included in
his Anders brief a concise statement of reasons relied upon for allowance of
appeal with respect to the discretionary aspects of his sentence pursuant to
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Pa.R.A.P. 2119(f). We must now determine whether Morton has raised a
substantial question that the sentence appealed from is not appropriate
under the Sentencing Code.
In his Rule 2119(f) statement, Morton claims that his sentence is
manifestly excessive in light of the fact that he had been incarcerated for
more than 6 months on this docket at the time of sentencing. This Court
has held that a claim of excessiveness of sentence does not raise a
substantial question where the sentence is within the statutory limits.
Commonwealth v. Coss, 695 A.2d 831, 833 (Pa. Super. 1997), citing
Commonwealth v. Jones, 613 A.2d 587, 593 (Pa. Super. 1992). Here,
Morton was convicted of carrying a firearm without a license, a misdemeanor
of the first degree carrying a statutory maximum penalty of five years. In
light of the offense gravity score of 4 and Morton’s prior record score of 2,
the standard-range sentence for the firearms conviction3 was RS-<12
months. Morton received a sentence of five years’ intermediate punishment,
with the first six months to be served on house arrest. Thus, the restrictive
portion of Morton’s sentence was well within the standard range of the
guidelines, and his overall sentence was within the statutory maximum.
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3
The court also sentenced Morton to a concurrent probationary period of
two years on the tampering charge. He received no further penalty on the
remaining two charges.
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Accordingly, Morton’s claim that his sentence is excessive does not raise a
substantial question.4
Judgment of sentence affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
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4
Although he did not raise the issue in his Rule 2119(f) statement, Morton
also argues that the sentencing court failed to consider his rehabilitative
needs in fashioning his sentence. Here, where the restrictive portion of
Morton’s sentence fell well within the standard range of the guidelines, we
find that this claim fails to raise a substantial question. Moreover, even if we
were to address the claim on its merits, Morton would be entitled to no
relief. Where, as here, the sentencing court had the benefit of a pre-
sentence report, we presume that the judge was aware of the relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. Commonwealth v.
Walls, 926 A.2d 957, 967 n.7 (Pa. 2007).
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Com. v. Morton, A.
Combined Opinion