Com. v. Aptiliasimou, F.
557 MDA 2016
| Pa. Super. Ct. | Feb 6, 2017Background
- Appellant Fikri Aptiliasimou pleaded guilty on January 5, 2016 to possession with intent to deliver a controlled substance.
- After a pre-sentence investigation, the court sentenced him on March 21, 2016 to 27 months to 6 years’ incarceration.
- Appellant did not raise objections at sentencing and did not file a post‑sentence motion, but timely appealed.
- Appellant’s court‑appointed counsel filed a petition to withdraw accompanied by an Anders brief asserting the appeal was frivolous. Counsel provided the required notice to Appellant of his options.
- Appellant’s Rule 1925(b) statement challenged the discretionary aspects of the sentence. The Superior Court reviewed counsel’s Anders submission and the certified record.
- The Superior Court concluded the discretionary‑sentence claim was waived for failure to preserve, found the Anders brief compliant, granted counsel’s petition to withdraw, and affirmed the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in sentencing Aptiliasimou | Appellant argued the sentence was an abuse of discretion (discretionary‑aspects challenge) | Commonwealth argued the claim was waived because Appellant failed to object at sentencing or file a post‑sentence motion; counsel argued appeal frivolous | The claim was waived; no substantial question for review; Anders brief compliant; petition to withdraw granted and sentence affirmed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (standards for counsel seeking withdrawal when appealing as frivolous)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (requirements for an Anders brief in Pennsylvania)
- Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 2015) (appellate court must independently review the record for overlooked issues)
- Commonwealth v. Colon, 102 A.3d 1033 (Pa. Super. 2014) (framework for discretionary‑aspects review prerequisites)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (discretionary‑sentence objections waived if not raised at sentencing or in a post‑sentence motion)
- Commonwealth v. Kalichak, 943 A.2d 285 (Pa. Super. 2008) (waived issues are frivolous for Anders purposes)
- Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 2007) (appellate duty to conduct independent review after Anders brief)
- Commonwealth v. Orellana, 86 A.3d 877 (Pa. Super. 2014) (counsel must notify client of rights when filing Anders withdrawal)
- Commonwealth v. Guth, 735 A.2d 709 (Pa. Super. 1999) (guilty plea generally waives defects but open pleas preserve discretionary‑sentence rights)