J-S78035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TERRY PAUL MYERS
Appellant No. 500 WDA 2016
Appeal from the Judgment of Sentence March 17, 2016
in the Court of Common Pleas of Fayette County Criminal Division
at No(s): CP-26-CR-0000014-2015
CP-26-CR-0000250-2016
CP-26-CR-0000328-2016
CP-26-CR-0000398-2016
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TERRY PAUL MYERS
Appellant No. 501 WDA 2016
Appeal from the Judgment of Sentence March 17, 2016
in the Court of Common Pleas of Fayette County Criminal Division
at No(s): CP-26-CR-0000014-2015
CP-26-CR-0000250-2016
CP-26-CR-0000328-2016
CP-26-CR-0000398-2016
J-S78035-16
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TERRY PAUL MYERS
Appellant No. 502 WDA 2016
Appeal from the Judgment of Sentence March 17, 2016
in the Court of Common Pleas of Fayette County Criminal Division
at No(s):
CP-26-CR-0000014-2015
CP-26-CR-0000250-2016
CP-26-CR-0000328-2016
CP-26-CR-0000398-2016
MJ-14201-CR-0000105-2016
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TERRY PAUL MYERS
Appellant No. 503 WDA 2016
Appeal from the Judgment of Sentence March 17, 2016
in the Court of Common Pleas of Fayette County Criminal Division
at No(s):
CP-26-CR-0000014-2015
CP-26-CR-0000250-2016
CP-26-CR-0000328-2016
CP-26-CR-0000398-2016
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 24, 2017
*
Former Justice specially assigned to the Superior Court.
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Appellant, Terry Paul Myers, appeals from the judgments of sentence
imposed after he entered negotiated guilty pleas to numerous offenses listed
in the above captioned four criminal cases. Appellant purports to challenge
the excessiveness of the sentence. We are constrained to dismiss
Appellant’s appeal due to a defective brief.
We need not recite the factual history of this case. It suffices to note
that on March 17, 2016, Appellant entered a negotiated guilty plea to
numerous charges in CR-14-2015, CR-250-2016, CR-328-2016, and CR-
398-2016. That same day, the trial court sentenced Appellant to the
following consecutive terms of imprisonment: (1) in CR-14-2015, sixty days
for driving with suspended operating privileges1 (“DUS”), (2) in CR-250-
2016, six to twelve months for flight to avoid apprehension2 and sixty days
for DUS, (3) in CR-328-2016, nine to twenty-four months for escape,3 and
(4) in CR-398-2016, one to two years for driving under the influence,4 a
third offense, and ninety days for DUS. Consequently, the aggregate
sentence of imprisonment was a minimum of 27 months and 210 days to a
maximum of sixty months. Additionally, the court imposed a consecutive
1
75 Pa.C.S. § 1543(b)(1).
2
18 Pa.C.S. § 5126(a).
3
18 Pa.C.S. § 5121(a).
4
75 Pa.C.S. § 3802(d)(1)(iii).
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two-year probationary term for fleeing and eluding5 in CR-14-2015, and
ordered that the sentences in these matters run consecutively to a prior
sentence in CR-916-2013. Appellant did not file post-sentence motions.
Appellant was represented by the Public Defender.
Appellant, acting pro se, timely filed notices of appeal in this Court,
which were transmitted to the trial court. The trial court ordered Pa.R.A.P.
1925(b) statements. Appellant’s counsel thereafter moved to withdraw from
representation,6 and the trial court granted counsel’s motion on April 29,
2016. On May 31, 2016, remanded the matter for a Grazier7 hearing. On
remand, the trial court vacated its order granting Appellant’s counsel leave
to withdraw. Counsel thereafter filed Pa.R.A.P. 1925(b) statements, each
raising a single challenge to the discretionary aspects of the sentence. The
trial court filed a statement in lieu of an opinion. This Court consolidated the
appeals.
Before addressing Appellant’s sentencing claim, we are compelled to
address the contents of Appellant’s brief. It is well settled that
“Pennsylvania Rule of Appellate Procedure 2119 contains mandatory
provisions regarding the contents of briefs. Rule 2119(a) requires the
5
75 Pa.C.S. § 3733(a).
6
Counsel averred in relevant part that an appeal would be frivolous. We
remind counsel that the proper course is to petition this Court to withdraw
from representation and file an Anders/Santiago Brief. See
7
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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argument to be followed by discussion and pertinent citation of authorities.
Additionally, this Court has held that arguments which are not sufficiently
developed are waived.” Commonwealth v. Irby, 700 A.d 463, 464 (Pa.
Super. 1997) (citation omitted). “It is the [a]ppellant who has the burden of
establishing his entitlement to relief by showing that the ruling of the trial
court is erroneous under the evidence or the law.” Commonwealth v.
Thomas, 909 A.2d 860, 862 (Pa. Super. 2006) (citation omitted).
We reiterate that
[t]his Court is neither obliged, nor even particularly
equipped, to develop an argument for a party. To do so
places the Court in the conflicting roles of advocate and
neutral arbiter. When an appellant fails to develop his
issue in an argument and fails to cite any legal authority,
the issue is waived.
Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008)
(citations omitted). Thus, “[i]f the defects are in the brief . . . of the
appellant and are substantial, the appeal or other matter may be quashed or
dismissed.” Pa.R.A.P. 2101.
Our review reveals that in the statement of facts and argument
sections of Appellant’s brief, Appellant’s counsel discusses a revocation
proceeding in a different matter. See Appellant’s Brief at 8 (discussing
revocation proceedings in CR-547-2014 and an appeal docketed at 1451
WDA 2015, neither of which correspond to the instant case). Although the
brief contains citations of law relevant to a challenge to the discretionary
aspects of a sentence, counsel provides no meaningful discussion of why
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Appellant’s sentence should be deemed excessive. Thus, we conclude the
failure to develop any issues for review constitutes a substantial defect. See
Pa.R.A.P. 2101, 2119(a); B.D.G., 959 A.2d at 371-72. Therefore, we
dismiss the present appeal.8 See Pa.R.A.P. 2101.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
8
The fact that Appellant did not preserve an objection to the sentence at the
sentencing hearing or in a post-sentence motion would also result in waiver
of the claim presented in this appeal. See Pa.R.A.P. 302(a); Cf.
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)
(reiterating that absent efforts to present a challenge to the discretionary
aspect of a sentence to the trial court during sentencing or in a post-
sentence motion, an objection to the discretionary aspect of the sentence is
waived). In any event, because Appellant was sentenced pursuant to a
negotiated sentence, any challenge to the discretionary aspects of that
sentence would be frivolous. See Commonwealth v. Dalberto, 648 A.2d
16, 20 (Pa. Super. 1994) (“Where the plea agreement contains a
negotiated sentence which is accepted and imposed by the sentencing
court, there is no authority to permit a challenge to the discretionary aspects
of that sentence.” (citation omitted)). Lastly, we note that the trial court
sentenced Appellant to a minimum sentence that was sixty days less than
the agreed-upon sentence. See Plea Bargain Form, 3/17/16. Because the
Commonwealth did not object at the time of sentencing or raise this issue on
appeal, we presume the Commonwealth believes the sentence substantially
comported with the plea agreement.
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