J-S16023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY SHOWALTER,
Appellant No. 1049 WDA 2016
Appeal from the Judgment of Sentence entered June 22, 2016,
in the Court of Common Pleas of Bedford County,
Criminal Division, at No(s): CP-05-CR-0000132-2013.
BEFORE: MOULTON, RANSOM, and PLATT,* JJ.
MEMORANDUM BY RANSOM, J.: FILED MAY 24, 2017
Appellant Larry Showalter appeals from the judgment of sentence
imposed on June 22, 2016. We remand with instructions.
The pertinent facts and procedural history, as gleaned from our review
of the certified record are as follows. The multiple charges brought against
Appellant stem from allegations made by his biological daughter that he
raped her on multiple occasions when she was between the ages of 8 and
11. On June 19, 2014, a jury convicted Appellant of two counts of rape of a
child, two counts of involuntary deviate sexual intercourse (IDSI), two
counts of aggravated indecent assault, two counts of incest, endangering the
*Retired Senior Judge assigned to the Superior Court.
J-S16023-17
welfare children, corruption of minors, and three counts of indecent
exposure.1 Appellant was found not guilty of an additional fourteen charges.
After an evidentiary hearing on September 24, 2014, the trial court
designated Appellant a sexually violent predator and sentenced him to an
aggregate term of 60-120 years of imprisonment.
Appellant timely filed an appeal to this Court, in which he asserted trial
court error in its admission of hearsay statements made by the victim, as
well as a challenge to the discretionary aspects of his sentence. Although
we concluded that the trial court erred in admitting the statements as an
excited utterance, we found the error harmless because the victim had
already made the same statements in her own testimony at trial. We then
raised sua sponte the issue of whether Appellant’s sentence, which included
the application of mandatory minimums, was illegal in light of the United
States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.
2151 (2013), and subsequent Pennsylvania cases applying the Alleyne
holding, including Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
2014). Because these cases concluded that the application of the
mandatory minimums were unconstitutional, we vacated and remanded for
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1
18 Pa.C.S. §§ 3121(c), 3123(b), 3125(a)(7), 4302, 4304(a)(1),
6301(a)(i), and 3127(a), respectively.
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resentencing. See Commonwealth v. Showalter, 145 A.3d 770 (Pa.
Super. 2016) (unpublished memorandum).
Upon remand, Appellant was resentenced on June 22, 2016, to an
aggregate term of 56-120 years. The trial court denied Appellant’s timely-
filed motion for reconsideration of sentence. This appeal follows. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issue:
I. WHETHER THE TRIAL COURT ABUSED ITS
DISCRETION IN SENTENCING APPELLANT TO AN
AGGREGATE TERM OF 56 TO 120 YEARS?
Appellant’s Brief at 6.
Although not styled as an Anders2 brief, counsel for Appellant
essentially argues Appellant’s sentencing claim is frivolous. According to
counsel’s assessment, Appellant is unable to establish that a substantial
question exists as to the aggregate term imposed upon resentencing:
Meeting the “substantial question” burden, in the
undersigned counsel’s experience and research is not a huge
burden to meet. An [a]ppellant needs only to raise a “colorable
argument” that a substantial question exists. [Commonwealth
v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)]. See
Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002).
However, there must be something in the record to indicate that
the burden can be met at least for review.
In the instant case, a review of the record shows no
evidence that the sentence was either inconsistent with a specific
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2
Anders v. California, 386 U.S. 738 (1967).
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provision of the Sentencing Code or contrary to the fundamental
norms which underlie the sentencing process and even a
“colorable argument” that a “substantial questions exists” cannot
be raised.
[Appellant] in this case was being resentenced; and had
already experienced getting sentenced to 60 years minimum in
jail. At his resentencing, which is the subject of the instant
appeal, [Appellant] himself did not even complain about his first
sentence or state why it should be less.
Appellant’s Brief at 12-13.
This is this sum total of counsel’s analysis. When court-appointed
appellate counsel determines that an appeal is wholly frivolous, he or she
must file a petition to withdraw accompanied by an appellate brief that
complies with the following:
[I]n 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. Super. 2009).
Here, counsel has done neither. In addition, we note that, in his prior
appeal, Appellant did complain of the length of his aggregate sentence, but
the issue was not reached by the panel due to its finding the sentence
illegal. See Showalter, supra. Thus, we remand for preparation of a
proper advocate brief addressing Appellant’s sentencing issue as reproduced
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above, or, if in counsel’s assessment the appeal remains frivolous, a
Anders/Santiago compliant brief accompanied by a petition to withdraw.
The amended brief shall be submitted within forty-five days.
Case remanded. Jurisdiction retained.
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