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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL MONROE
Appellant No. 1853 WDA 2015
Appeal from the Judgment of Sentence June 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009499-2014
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 29, 2016
Michael Monroe appeals from the judgment of sentence entered in the
Court of Common Pleas of Allegheny County after he pled guilty to one count
of voluntary manslaughter – unreasonable belief.1 Counsel has petitioned
this Court to withdraw her representation of Monroe pursuant to Anders and
Santiago.2 Upon review, we affirm Monroe’s judgment of sentence and
grant counsel’s petition to withdraw.
On July 6, 2014, Monroe used a butcher knife to stab and kill his
girlfriend’s son, Dereck Frye, after the couple had engaged in a domestic
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1
18 Pa.C.S.A. § 2503(b).
2
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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dispute. Monroe admitted to the stabbing, but claimed that he had
committed the act because he believed that Frye was in possession of a gun.
Monroe was originally charged with one count each of voluntary
manslaughter and terroristic threats and two counts of simple assault.
However, the remaining charges were withdrawn when Monroe agreed to
plead guilty to voluntary manslaughter.
On June 30, 2015, the trial court sentenced Monroe to 75 to 200
months of incarceration. In imposing sentence, the court applied the deadly
weapon enhancement contained in the Sentencing Guidelines. Monroe filed
post-sentence motions in which he asserted, inter alia, that his sentence was
illegal pursuant to Alleyne v. U.S., 133 S.Ct. 2151 (2013). Monroe
ultimately moved to withdraw his motion, which the court allowed. This
timely appeal followed.
As stated above, counsel has filed a motion to withdraw from her
representation of Monroe. 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 to raise any additional points that the appellant deems worthy
of review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
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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 Monroe with a copy of the brief and a letter explaining his
right to proceed pro se,3 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 one issue of arguable merit and, pursuant
to the dictates of Santiago, explaining why she believes the issue to be
frivolous. Thus, counsel has substantially complied with the requirements
for withdrawal.
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).
Monroe claims that the trial court imposed an illegal sentence because
the decision of the United States Supreme Court in Alleyne rendered
unconstitutional the deadly weapon sentencing enhancement under which he
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3
Monroe has not submitted any additional or supplemental filings to this
Court.
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was sentenced. In Alleyne, the Court held that any fact, other than a prior
conviction, that results in the application of a mandatory minimum sentence
is an element of the crime which must be submitted to the jury and found
beyond a reasonable doubt. Monroe is entitled to no relief.
We begin by noting that, where an appellant challenges the legality of
his sentence, our scope of review is plenary and our standard of review is de
novo. Commonwealth v. McClintic, 909 A.2d 1241, 1245 (Pa. 2006).
In sentencing Monroe, the trial court applied the deadly weapon
enhancement contained in the Sentencing Guidelines, see 204 Pa. Code §
303.10, which provides that the court “shall consider” imposing the
enhanced sentence suggested by the guidelines where the offender uses a
deadly weapon in a way that threatened or injured another individual. Id.
Here, Monroe utilized a deadly weapon – namely a butcher knife – in the
commission of a voluntary manslaughter.
In Commonwealth v. Ali, 112 A.3d 1210 (Pa. Super. 2015), this
Court considered the school-zone sentencing enhancement and distinguished
sentencing enhancements from the mandatory minimums contemplated by
Alleyne. The Court concluded that Alleyne is inapplicable to the former,
reasoning that:
The parameters of Alleyne are limited to the imposition of
mandatory minimum sentences, i.e., where a legislature has
prescribed a mandatory baseline sentence that a trial court must
apply if certain conditions are met. The sentencing
enhancements at issue impose no such floor. Rather, the
enhancements only direct a sentencing court to consider a
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different range of potential minimum sentences, while preserving
a trial court’s discretion to fashion an individual sentence. By
their very character, sentencing enhancements do not share the
attributes of a mandatory minimum sentence that the Supreme
Court held to be elements of the offense that must be submitted
to a jury. The enhancements do not bind a trial court to any
particular sentencing floor, nor do they compel a trial court in
any given case to impose a sentence higher than the court
believes is warranted. They require only that a court consider a
higher range of possible minimum sentences. Even then, the
trial court need not sentence within that range; the court only
must consider it. Thus, even though the triggering facts must be
found by the judge and not the jury—which is one of the
elements of an Apprendi[4] or Alleyne analysis—the
enhancements that the trial court applied in this case are not
unconstitutional under Alleyne.
Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015),
reargument denied (May 8, 2015), appeal granted in part, 127 A.3d 1286
(Pa. 2015).5
Consistent with our holding in Ali, we conclude that the trial court’s
application of the deadly weapon enhancement did not render Monroe’s
sentence illegal under Alleyne. Rather than prescribing a mandatory
minimum sentence that the court is required to impose, the enhancement
simply increases the “range of potential minimum sentences” to be
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4
Apprendi v. New Jersey, 530 U.S. 466 (2000).
5
The Court granted allowance of appeal on the following issue:
Does a sentencing judge have discretion to consider victim
impact evidence where the offense is not a “crime against a
person”?
Ali, 127 A.3d at 1287.
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considered by the court. Id. Thus, the trial court retained its discretion to
fashion an individual sentence “consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant.” See
42 Pa.C.S.A. § 9721(b). Accordingly, Monroe’s sentence does not violate
the dictates of Alleyne and he is entitled to no relief.
Judgment of sentence affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2016
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