J-S87030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FIKRI APTILIASIMOU
Appellant No. 557 MDA 2016
Appeal from the Judgment of Sentence Dated March 21, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002876-2014
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 06, 2017
Appellant, Fikri Aptiliasimou, appeals from the judgment of sentence of
twenty-seven months’ to six years’ incarceration following a guilty plea to
possession of a controlled substance with intent to deliver (“PWID”).1
Appellant’s counsel has filed a petition to withdraw and an Anders2 brief,
stating that the appeal is wholly frivolous. After careful review, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
On January 5, 2016, Appellant pleaded guilty to PWID. Following a
pre-sentence investigation, the court sentenced Appellant on March 21,
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
Anders v. California, 386 U.S. 738 (1967).
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2016, and advised him of his post-sentence rights. Appellant did not raise
any issues at the hearing after he was sentenced, and he did not file a post-
sentence motion. Appellant timely appealed and filed a court-ordered
Pa.R.A.P. 1925(b) statement claiming that the court abused its discretion
when sentencing him. Appellant’s counsel filed a petition to withdraw with
this Court.
In the Anders brief, counsel raises a single issue for our review:
Whether the trial court abused its discretion in sentencing
the Appellant.
Anders Brief at 1.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010). An Anders brief shall comply with the requirements set forth by the
Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009):
[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.
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Id. at 361.
Counsel seeking to withdraw on direct appeal must meet the following
obligations to his or her client:
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) (quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,
“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 citations omitted).
In this case, counsel provided a copy of the Anders brief to Appellant
and advised Appellant of his right to either retain new counsel or proceed
pro se on appeal, and to raise any issues he wished to bring to this Court’s
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attention.3 Further, counsel’s Anders brief complies with prevailing law in
that counsel has provided a procedural and factual summary of the case with
references to the record. Counsel explained that nothing in the record would
support the appeal because Appellant waived the issue. Finally, counsel
states the reasons for concluding this appeal is frivolous. Anders Brief at 6-
7.
Appellant challenges the discretionary aspects of his sentence, an
issue that is not appealable as of right. See Commonwealth v. Colon, 102
A.3d 1033, 1042 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa.
2015).4 Instead, this Court has set forth an analytical framework under
which we determine whether we may exercise our discretion to hear such an
appeal. Under that framework, we determine —
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
[regarding the sentence’s impropriety under the Sentencing
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3
Appellant did not file an additional pro se or counseled brief with this Court.
4
“Upon entry of a guilty plea, a defendant generally waives all defects and
defenses except those concerning the validity of the plea, the jurisdiction of
the trial court, and the legality of the sentence imposed. However, when the
plea agreement is open, containing no bargain for a specific or stated term
of sentence, the defendant will not be precluded from appealing the
discretionary aspects of his sentence.” Commonwealth v. Guth, 735 A.2d
709, 710 n.3 (Pa. Super.) (citations omitted), appeal denied, 743 A.2d 915
(Pa. 1999).
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Code]. [I]f the appeal satisfies each of these four requirements,
we will then proceed to decide the substantive merits of the
case.
Id. at 1042-43 (citation omitted). For purposes of an Anders analysis, a
waived issue is frivolous. Commonwealth v. Kalichak, 943 A.2d 285, 291
(Pa. Super. 2008).
“Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). In the current case, Appellant failed to file a post-
sentence motion or otherwise preserve the issue at the sentencing hearing.
Because Appellant failed to preserve his issue before the trial court, he failed
to satisfy the second prerequisite to appellate review, see Colon, 102 A.3d
at 1042-43; Moury, 992 A.2d at 170, and thus, his issue is frivolous for
purposes of Anders. Kalichak, 943 A.2d at 291. In addition, we have
reviewed the certified record consistent with Flowers, 113 A.3d at 1250,
and have discovered no additional arguably meritorious issues. Accordingly,
we grant appellate counsel’s petition to withdraw and affirm the trial court’s
judgment of sentence.
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Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2017
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