J-S58036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Y.R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
A.J.J. :
:
Appellant : No. 94 MDA 2017
Appeal from the Judgment of Sentence Entered December 8, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 12097-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 30, 2017
Appellant, A.J.J., appeals from the judgment of sentence entered in
the Luzerne County Court of Common Pleas, following his open guilty plea to
indirect criminal contempt.1 We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows.
On October 27, 2015, Y.R. (“Victim”) filed a petition for Protection from
Abuse (“PFA”) against Appellant, which sought protection for herself and the
parties’ children. The petition alleged that Appellant physically and verbally
abused Victim on numerous occasions. In light of these allegations, the
court issued a temporary PFA order and scheduled a hearing on the matter.
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1 23 Pa.C.S.A. § 6114(a).
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After a hearing, the court issued a final PFA order on November 3, 2015.
The order: (1) directed Appellant not to abuse, harass, stalk or threaten
Victim or the children; (2) evicted Appellant from the family residence; and
(3) prohibited Appellant from the possession of firearms. The court set the
expiration date of the PFA order as November 3, 2018.
On August 15, 2016, Appellant approached Victim, grabbed her hair,
and hit her face. As a result, police arrested Appellant and charged him with
indirect criminal contempt. Appellant entered an open guilty plea to indirect
criminal contempt on August 30, 2016, and the court immediately sentenced
Appellant to six months of intermediate punishment. The court also set
August 30, 2019, as the new expiration date of the PFA order. On
November 20, 2016, Appellant entered Victim’s home without permission,
punched Victim in the face, threatened to kill Victim, and took Victim’s keys.
Police arrested Appellant that same day and again charged him with indirect
criminal contempt. Appellant entered an open guilty plea to indirect criminal
contempt on December 8, 2016, and the court sentenced Appellant to a
term of six months’ incarceration.
Appellant timely filed a post-sentence motion for reconsideration of
sentence on December 9, 2016, which the court denied on December 15,
2016. Appellant timely filed a notice of appeal on January 12, 2017. On
January 23, 2017, the court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and
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Appellant’s counsel filed a statement of intent to file an Anders brief on
February 10, 2017. Appellant’s counsel filed a petition for leave to withdraw
as counsel and Anders brief in this Court on July 26, 2017.
As a preliminary matter, counsel seeks to withdraw her representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to
confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903
A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
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Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[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.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated July 26,
2017, attached to Petition for Leave to Withdraw as Counsel). In the
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Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel’s argument refers to relevant law that might
arguably support Appellant’s issues. Counsel further states the reasons for
her conclusion that the appeal is wholly frivolous. Therefore, counsel has
substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT IMPOSED A SENTENCE, FOLLOWING A GUILTY
PLEA, OF SIX MONTHS[’] INCARCERATION?
(Anders Brief at 1).
Appellant argues a sentence of six months’ incarceration for
Appellant’s indirect criminal contempt conviction is excessive. Appellant
avers the court should have imposed a sentence of three months’
incarceration because both the Commonwealth and Appellant’s counsel
asked the court to impose a sentence of three months’ incarceration.
Appellant concludes the sentence of six months’ incarceration was an abuse
of discretion, in light of sentencing recommendations of defense counsel and
the Commonwealth, and this Court should vacate and remand for
resentencing. As presented, Appellant challenges the discretionary aspects
of his sentence.2 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.
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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
(Footnote Continued Next Page)
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2002) (stating claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspect of 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. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal
denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.
Evans, 901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727,
909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of
a sentence are waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed at that hearing. Commonwealth
v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759,
(Footnote Continued) _______________________
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super 2005). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included
no negotiated sentence.
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831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must also invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617,
621-22 (2002); Pa.R.A.P. 2119(f). “The requirement that an appellant
separately set forth the reasons relied upon for allowance of appeal ‘furthers
the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.’” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745,
964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385,
1387 (Pa.Super. 1989) (en banc) (emphasis in original)).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 913 (quoting Commonwealth v.
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Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)). Significantly, “a bald assertion that a
sentence is excessive does not by itself raise a substantial question justifying
this Court’s review of the merits of [a discretionary aspects of sentencing]
claim.” Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.Super. 2012),
appeal denied, 619 Pa. 677, 62 A.3d 378 (2013).
Instantly, Appellant properly preserved his discretionary aspects of
sentencing claim in his post-sentence motion. Additionally, the failure of
Appellant’s counsel to include a Rule 2119(f) statement is not fatal to our
review of Appellant’s discretionary aspects of sentencing issue. See
Commonwealth v. Ziegler, 112 A.3d 656, 661 (Pa.Super. 2015)
(explaining failure to include Rule 2119(f) statement in Anders brief does
not preclude review of discretionary aspects of sentencing claim, even if
Commonwealth objects, because we still have “to examine the merits of the
appeal to determine if it is ‘wholly frivolous’ so as to permit counsel’s
withdrawal”). See also Commonwealth v. Lilley, 978 A.2d 995, 998
(Pa.Super. 2009) (noting Anders situation allows review of issues otherwise
waived on appeal due to defective Rule 2119(f) statement). Nevertheless,
Appellant’s bald assertion that the court-imposed sentence of six months’
incarceration is excessive fails to raise a substantial question as to the
discretionary aspects of his sentence. See Fisher, supra.
In any event, the court explained its reason for Appellant’s sentence as
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follows:
In the case at bar, the record clearly illustrates that on
November 20, 2016, [Appellant] violated the [PFA] order
for the second time. Moreover, the second violation
occurred while [Appellant] was serving a six[-]month
[intermediate punishment] sentence. [Appellant] admitted
to the following facts as the basis of his guilty plea to the
second violation:
…On November 20th, 2016, while there was a valid PFA…,
[Appellant] did make contact with [Victim] by striking her
in the face and threatening her.
* * *
The court reviewed the history of the PFA case as well as
the basis for the guilty plea and sentenced [Appellant]
within the statutorily mandated maximum. Therefore, in
light of the [c]ourt’s analysis of the record and the law, the
[c]ourt’s sentencing was warranted.
(See Trial Court Opinion, filed June 9, 2017, at 3-4). Thus, even if
Appellant’s claim raised a substantial question, we would rely on the court’s
analysis. Based on the foregoing, Appellant is not entitled to relief on his
challenge to the discretionary aspects of his sentence. Following our
independent review of the record, we confirm the appeal is wholly frivolous.
See Palm, supra. Accordingly, we affirm and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed; petition to withdraw is granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2017
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