J-S78017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD J. SHERILL
Appellant No. 1236 MDA 2014
Appeal from the Judgment of Sentence April 11, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001065-2013
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 14, 2015
Appellant Donald J. Sherill appeals from the judgment of sentence
entered in the Luzerne County Court of Common Pleas following his bench
trial conviction for aggravated assault.1 After review, we affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this appeal are as follows.
On September 18, 2012, while serving a period of incarceration for criminal
attempt to commit homicide2 and criminal conspiracy to commit aggravated
assault,3 Appellant spit into one prison guard’s face and bit another prison
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1
18 Pa.C.S. § 2702(a)(3).
2
18 Pa.C.S. § 901; § 2501.
3
18 Pa.C.S. § 903(a); § 2702(a).
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guard’s wrist. At the time of the assault, the two guards were attempting to
handcuff Appellant to transport him from the misconduct hearing room to
the restricted housing unit within the prison. Appellant was charged with
aggravated assault and aggravated harassment by a prisoner.4
On April 11, 2014, Appellant pled guilty to aggravated assault, and the
Commonwealth withdrew the aggravated harassment charge. The court
sentenced Appellant to thirty-six to seventy-two (36-72) months’
incarceration to run consecutively to the sentence he was serving at the
time. On April 16, 2014, Appellant filed a post sentence motion, which the
court denied on May 6, 2014. Appellant timely filed a notice of appeal on
June 5, 2014, and the court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
timely filed his Rule 1925(b) statement on June 26, 2014. On September
16, 2014, Appellant’s counsel filed a petition for leave to withdraw along
with an Anders brief.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 978 A.2d
349 (Pa.2009). Prior to withdrawing as counsel on a direct appeal under
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4
18 Pa.C.S. § 2703.1.
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Anders, counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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.
Santiago, 978 A.2d at 361. Counsel must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
appellant of his or her right to “(1) retain new counsel to pursue the appeal;
(2) proceed pro se on appeal; or (3) raise any points that the appellant
deems worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super.2007), appeal denied, 936 A.2d 40 (Pa.2007). Substantial
compliance with these requirements is sufficient. Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the
antecedent requirements have been met, this Court must then make an
independent evaluation of the record to determine whether the appeal is, in
fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246
(Pa.Super.2006).
Here, counsel filed a petition for leave to withdraw as counsel. The
petition states counsel made a conscientious and extensive review of the
record and the law in this matter, and determined there were no non-
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frivolous issues to be raised on appeal. The petition explains counsel
notified Appellant of the withdrawal request, supplied him with a copy of the
Anders brief, and sent Appellant a letter explaining his right to proceed pro
se or with new, privately-retained counsel to raise any additional points or
arguments that Appellant believed had merit. In the Anders brief, counsel
provides a summary of the facts and procedural history of the case with
citations to the record, refers to evidence of record that might arguably
support the issue raised on appeal, provides citations to relevant case law,
and states his conclusion that the appeal is wholly frivolous and his reasons
therefor. See Anders Brief, pp. 1-3. Accordingly, counsel has substantially
complied with the requirements of Anders and Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issue raised
in the Anders brief:
WHETHER THE TRIAL COURT ERRED BY MAKING THE
SENTENCE TO BE SERVED [CONSECUTIVE] RATHER THAN
[CONCURRENT] TO [APPELLANT’S] PREVIOUS SENTENCE?
Anders Brief at 1.
In the Anders brief, counsel states he found nothing that arguably
supports an appeal, because Appellant challenges the discretionary aspects
of sentencing without raising a substantial question. We agree.
When reviewing a challenge to the discretionary aspects of sentencing,
we determine whether the trial court has abused its discretion.
Commonwealth v. Seagraves, ___ A.3d ___, 2014 PA Super 252, *3
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(Nov. 6, 2014). “Challenges to the discretionary aspects of sentencing do
not entitle a petitioner to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super.2011). 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.
Allen, 24 A.3d at 1064.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
A substantial question exists only when the appellant
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.
Id. (internal citations omitted). A court’s exercise of discretion in imposing
a sentence concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d 581
(Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011). In fact, the
imposition of consecutive rather than concurrent sentences will only present
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a substantial question in “the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d
365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).
Presently, Appellant filed a timely notice of appeal and preserved his
issues in a post sentence motion. Appellant’s brief, however, does not
include a concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f). Nevertheless, in light of Counsel’s
petition to withdraw, we will proceed to address whether Appellant raises a
substantial question. See Commonwealth v. Lilley, 978 A.2d 995, 998
(Pa.Super.2009) (observing that Anders requires review of issues otherwise
waived on appeal).
Appellant was sentenced to thirty-six to seventy-two (36-72) months’
incarceration for spitting on and biting prison guards while he was already
incarcerated. The aggregate sentence is not unduly harsh, considering the
nature of the crimes and the length of imprisonment. Thus, Appellant’s
challenge to the discretionary aspects of his sentence does not present a
substantial question. See Lamonda, supra.
Because Appellant does not raise a substantial question, we need not
address whether the court abused its discretion in the imposition of its
sentence. Further, after an independent review of the record, we agree with
Counsel that this appeal is wholly frivolous.
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Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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Com. v. Sherill, D.
Combined Opinion