J-S03011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON MICHAEL WOODALL
Appellant No. 395 WDA 2016
Appeal from the Judgment of Sentence February 1, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015787-2006
CP-02-CR-0015796-2006
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 07, 2017
Appellant, Jason Michael Woodall, appeals from the judgment of
sentence entered on February 1, 2016. On this direct appeal, Appellant’s
court-appointed counsel filed both a motion to withdraw as counsel and an
accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386
U.S. 738 (1967). We conclude that Appellant’s counsel complied with the
procedural requirements necessary to withdraw. Furthermore, after
independently reviewing the record, we conclude that the appeal is wholly
frivolous. We, therefore, grant counsel’s motion to withdraw and affirm the
judgment of sentence.
* Retired Senior Judge assigned to the Superior Court
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This Court previously summarized the factual background of this case
as follows:
On May 31, 2006, at 1:30 p.m., [Jerome] Bauer [(“Bauer”)]
placed a wiretapped telephone call to [A]ppellant to purchase
four ounces of cocaine. . . . Appellant indicated that he did have
the amount, and they agreed to meet at 4:00 p.m. at the bar
Bauer owned. Police officers directed Bauer to place a follow-up
call to receive an “extra one,” which meant an extra ounce of
cocaine. . . . [At the appointed time,] Appellant walked into the
bar and made eye contact with Bauer. Appellant then met Bauer
in the game room, and they walked to an alcove between the
kitchen and the bathroom where they exchanged $3,600[.00] for
cocaine. . . . [A]ppellant turned around, walked back out of the
bar, jogged to his vehicle, and left. . . .
In the bar, officers recovered the cocaine from Bauer, removed
the body wire, and searched him. The cocaine weighed 82.7
grams, which was one ounce short of the agreed upon amount.
Consequently, Bauer was directed to place another wiretapped
phone call to [A]ppellant regarding the shortage. Appellant
agreed to meet Bauer later that evening at the Mt. Oliver
McDonald’s to provide the missing ounce of cocaine, as he
believed he was followed from the parking lot of the bar. . . .
Appellant never arrived [at the McDonald’s]. Later that evening,
Bauer called [A]ppellant and arranged to meet him on June 1,
2006, at the same McDonald’s to get the ounce of cocaine.
[When Bauer arrived at the McDonald’s] Appellant exited the
McDonald’s and proceeded to the front passenger seat of Bauer’s
vehicle. While sitting in the car, [A]ppellant handed Bauer an
ounce of cocaine. . . .
On June 7, 2006, officers had Bauer make another recorded call
to [A]ppellant and set up another transaction for four ounces at
the same McDonald’s. . . . Appellant arrived and proceeded into
the bathroom. However, the undercover officers followed him
into the bathroom and placed [A]ppellant under arrest. The
officers found a “fairly large softball size of cocaine” in
[A]ppellant’s right front pocket and a piece of crack cocaine on
the floor.
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Commonwealth v. Woodall, 120 A.3d 1064, 2015 WL 7454076, *1-3 (Pa.
Super. 2015), appeal discontinued, 143 WAL 2015 & 144 WAL 2015 (Pa.
May 22, 2015) (internal citations, footnotes, and certain paragraph breaks
omitted).
The procedural history of this case is as follows. On December 29,
2006, the Commonwealth charged Appellant, via two separate criminal
informations, with two counts of possession with intent to deliver a
controlled substance,1 two counts of possession of a controlled substance,2
two counts of driving with a suspended license,3 and delivery of a controlled
substance.4 The trial court consolidated the criminal informations for trial.
On March 5, 2009, Appellant was convicted of possession of a
controlled substance, possession with intent to deliver a controlled
substance, and driving with a suspended license for the events that occurred
on June 7, 2006. The jury was unable to reach a verdict on the delivery of a
controlled substance, possession with intent to deliver a controlled
substance, and possession of a controlled substance charges for the events
that occurred on May 31 and June 1, 2006. On March 24, 2009, Appellant
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
75 Pa.C.S.A. § 1543(a).
4
35 P.S. § 780-113(a)(30).
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was sentenced to an aggregate term of 7 to 14 years’ imprisonment for the
events that occurred on June 7, 2006.
A retrial was held with respect to the May 31 and June 1, 2006 events
and on April 1, 2011, Appellant was convicted of delivery of a controlled
substance, possession with intent to deliver a controlled substance,
possession of a controlled substance, and driving with a suspended license.
On June 30, 2011, the trial court sentenced Appellant to an aggregate term
of 7 to 14 years’ imprisonment for the events that occurred on May 31 and
June 1, 2006. That sentence was ordered to run concurrently with the term
of imprisonment imposed on March 24, 2009.
On June 14, 2012, Appellant filed a pro se petition pursuant to the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel
was appointed. On February 13, 2013, Appellant filed an amended PCRA
petition. On February 15, 2013, the PCRA court granted the amended PCRA
petition and reinstated Appellant’s direct appellate rights nunc pro tunc. On
March 27, 2015, this Court affirmed Appellant’s judgments of sentence. See
generally Woodall, 2015 WL 7454076. Appellant’s allocatur petitions were
discontinued on May 22, 2015.
On May 6 and June 29, 2015, Appellant filed pro se PCRA petitions.
Counsel was appointed and filed an amended PCRA petition. On February 1,
2016, the PCRA court granted Appellant’s amended PCRA petition and
vacated his judgments of sentence. That same day, the trial court
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sentenced Appellant to an aggregate term of 42 to 84 months’
imprisonment. This timely appeal followed.5
Appellant’s counsel raises one issue in his Anders brief:
Whether the trial court erred and/or abused its discretion by
sentencing Appellant to a state sentence and telling Appellant
that the trial court would immediately parole Appellant when
that has not been done?
Anders Brief at 8.
Before reviewing the merits of this appeal, we must first determine
whether counsel has fulfilled the necessary procedural requirements for
withdrawing as counsel. See Commonwealth v. Flowers, 113 A.3d 1246,
1248-1249 (Pa. Super. 2015) (citation omitted). To withdraw under
Anders, court-appointed counsel must satisfy certain technical
requirements. “First, counsel must petition the court for leave to withdraw
and state that after making a conscientious examination of the record, he
has determined that the appeal is frivolous.” Commonwealth v. Bynum-
Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016), quoting Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an
Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts,
with citations to the record; (2) refer[s] to anything in the record
that counsel believes arguably supports the appeal; (3) set[s]
forth counsel’s conclusion that the appeal is frivolous; and (4)
state[s] counsel’s reasons for concluding that the appeal is
frivolous.
5
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
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Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa. Super. 2015),
quoting Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and “advise[] him of his right to retain new counsel, proceed pro se[,] or
raise any additional points that he deems worthy of the court’s attention,
and attach[] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation
omitted).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting
McClendon, 434 A.2d at 1187. It is only when both the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw. In the case at bar, counsel has met all of the above procedural
obligations. We now turn to whether this appeal is wholly frivolous.6
The lone issue raised in counsel’s Anders brief challenges the
discretionary aspects of Appellant’s sentence. Pursuant to statute, Appellant
does not have an automatic right to appeal the discretionary aspects of his
sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition
6
Appellant did not file a response to counsel’s Anders brief.
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this Court for permission to appeal the discretionary aspects of his sentence.
Id.
As this Court has explained, in order to reach the merits of a
discretionary aspects claim,
[w]e conduct a four-part analysis to determine: (1) whether
[the] 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 [the] 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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
In this case, Appellant failed to preserve the issue at sentencing or in a
post-sentence motion.7 Therefore, Appellant waived his discretionary
aspects claim. See id. An issue that is waived is frivolous. See
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008).
Therefore, Appellant’s discretionary aspects claim is frivolous.
In sum, we conclude that the lone issue raised in counsel’s Anders
brief is wholly frivolous. Furthermore, after an independent review of the
entire record, we conclude that no other issue of arguable merit exists.
Therefore, we grant counsel’s request to withdraw. Having determined that
7
The issue was not preserved in Appellant’s pro se “Motion to Suspend
Sentence” as Appellant’s motion was a legal nullity because it was filed while
he was represented by counsel. See Commonwealth v. Reid, 117 A.3d
777, 781 n.8 (Pa. Super. 2015). Moreover, even if it were not a legal
nullity, Appellant’s motion was untimely. See Pa.R.Crim.P. 720(A)(1).
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the lone issue raised on appeal is frivolous, we affirm the judgment of
sentence.
Motion to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2017
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Com. v. Woodall, J.
Combined Opinion