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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JESUS MANUEL ALVAREZ-DIAZ, :
:
APPELLANT :
: No. 321 MDA 2016
Appeal from the Judgment of Sentence February 4, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005351-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 23, 2016
Appellant, Jesus Manuel Alvarez-Diaz, appeals from the Judgment of
Sentence entered in the Berks County Court of Common Pleas on February
4, 2016, following the revocation of his probation and parole. With this
appeal, Appellant’s counsel, Megan C. Mahon, Esq., has filed a Petition to
Withdraw and an Anders1 brief, stating that the appeal is wholly frivolous.
After careful review, we affirm the Judgment of Sentence and grant
counsel’s Petition to Withdraw.
The procedural history relevant to the instant appeal is as follows. On
September 12, 2014, Appellant entered a negotiated guilty plea to one count
*
Retired Senior Judge assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967).
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of Robbery and one count of Conspiracy to Commit Robbery. The Honorable
M. Theresa Johnson sentenced Appellant to 6 to 23 months’ incarceration on
the Robbery conviction, with a consecutive sentence of 5 years’ probation on
the Conspiracy conviction. The trial court made Appellant eligible for
participation in the Earned Time reentry program, Appellant was eligible for
release on January 19, 2015.
On April 10, 2015, Appellant was arrested on new criminal charges.
See Docket No. CP-06-CR-0002259-2015. On February 4, 2016, Appellant
appeared before Judge Johnson on the new charges and entered a
negotiated guilty plea to one count each of Aggravated Assault and
Conspiracy to commit Aggravated Assault. Judge Johnson sentenced
Appellant to 15 to 60 months’ incarceration.
That same day, Judge Johnson proceeded to a probation and parole
revocation hearing in the instant case. Judge Johnson found Appellant in
violation of his probation for the new conviction and sentenced Appellant to
2 to 4 years’ incarceration, to run concurrent to his sentence on the new
convictions. Due to the concurrent nature of the sentences imposed in both
cases, the 2 to 4 year sentence added an additional 9 months to Appellant’s
new aggregate sentence. It did not impact the maximum range of
Appellant’s aggregate sentence.
On February 12, 2016, Appellant filed a Post-Sentence Motion for
Modification of Sentence. Before any action was taken on the Post-Sentence
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Motion, Appellant timely-filed a Notice of Appeal to this Court. The trial
court did not rule on Appellant’s Post-Sentence Motion. Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue:
Whether the sentencing court abused its discretion in imposing a
sentence of two (2) to four (4) years of incarceration for
Conspiracy to Commit Robbery where the sentence was
manifestly excessive and fails to consider the fundamental
norms underlying the sentencing code?
Appellant’s Brief at 5.
As Appellant’s counsel has filed an Anders Brief, we must consider her
request to withdraw as counsel prior to reviewing Appellant’s claims on the
merits. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010).
An Anders brief must comply with the requirements set forth by our
Supreme Court:
[W]e hold 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client:
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Counsel also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his 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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc). Further, “this
Court must conduct an independent review of the record to discern if there
are any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote and citation omitted).
In this appeal, we conclude that counsel’s Anders brief complies with
the requirements of Santiago. First, counsel has provided a procedural and
factual summary of the case with references to the record. Second, counsel
advances relevant portions of the record that arguably support Appellant’s
claims on appeal. Third, counsel concludes that the instant appeal is wholly
frivolous. Lastly, counsel has complied with the requirements set forth in
Millisock. See Letter from Counsel to Appellant, dated 6/22/16. As a
result, we proceed to conduct an independent review to ascertain if the
appeal is indeed wholly frivolous.
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A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
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. 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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In the instant case, Appellant filed a timely Post-Sentence Motion and
Notice of Appeal. He also included a separate Pa.R.A.P. 2119(f) Statement
in his appellate brief. As to whether Appellant has presented a substantial
question, we note:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. 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.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
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Here, Appellant avers in his Rule 2119(f) statement that the sentence
following revocation of his probation was excessive and that the trial court
failed to consider mitigating factors before re-sentencing him. He claims
that the trial court did not adequately consider his prior record score of zero
at the time of his original sentencing, as well as the fact that he “has a
supportive family who is able to provide him with a parole plan.” Appellant’s
Brief at 13-14.
An argument that the sentencing court failed to consider mitigating
factors in favor of a lesser sentence does not present a substantial question
appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254,
1257-58 (Pa. Super. 2004). See also Commonwealth v. Griffin, 804
A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d
1385, 1388 (Pa. Super. 1989) (en banc) (an allegation that the sentencing
court did not adequately consider various factors is, in effect, a request that
this court substitute its judgment for that of the lower court in fashioning a
defendant’s sentence)).
Moreover, we note that Appellant does not allege that his 2 to 4 year
sentence is outside the statutory maximum sentence. Neither does
Appellant point to any specific provision of the Sentencing Code the
sentencing court ostensibly violated. Appellant’s bald assertion that his
sentence is excessive does not raise a substantial question. See
Commonwealth v. Trippett, 932 A.2d 188, 201-03 (Pa. Super. 2007)
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(bald allegations of excessiveness insufficient to permit discretionary
review).
Accordingly, we conclude that Appellant has failed to raise a
substantial question as to the appropriateness of his sentence and agree
with counsel that this appeal is wholly frivolous. Furthermore, our
independent review of the record reveals no additional non-frivolous claims.
We therefore grant counsel’s Petition to Withdraw and affirm the February 4,
2016 Judgment of Sentence.
Judgment of Sentence affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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