Com. v. Morton, A.
479 MDA 2016
| Pa. Super. Ct. | Jan 13, 2017Background
- Appellant Albert Earl Morton was convicted by a jury of: carrying a firearm without a license (1st-degree misdemeanor), tampering with evidence, possession of drug paraphernalia, and possession of a small amount of marijuana.
- At sentencing Morton received five years of intermediate punishment on the firearms count, with the first six months on house arrest; concurrent two-year probation on the tampering count; no additional penalties on the drug counts.
- Trial counsel filed a post-sentence motion and a timely appeal. Appellate counsel moved to withdraw under Anders, McClendon, and Santiago, submitting a brief and informing Morton of his rights to proceed pro se or retain new counsel. Morton filed no pro se supplemental brief.
- Appellate counsel certified after review that the appeal was wholly frivolous and, per Santiago, explained the basis for that conclusion in the brief.
- The Superior Court reviewed counsel’s compliance with Anders/Santiago and conducted its own independent review of the record and issues.
Issues
| Issue | Morton’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Whether counsel complied with Anders/Santiago to permit withdrawal | Counsel complied and Morton had no meritorious issues; Morton did not file a pro se brief | Counsel substantially complied with withdrawal requirements and the appeal is frivolous | Withdrawal granted; counsel satisfied Anders/Santiago; Court independently reviewed and found no merit |
| Whether the sentence was excessive / failed to consider rehabilitative needs (discretionary aspects) | Sentence was excessive given Morton’s ~6 months served pre-sentencing and court did not account for rehabilitative needs | Sentence was within statutory limits and guideline standard range; court had pre-sentence report and presumptively considered mitigation | Claim does not present a substantial question; sentence is within statutory and guideline range; no relief granted |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (requires counsel to move to withdraw when appeal is frivolous and to submit a brief identifying any arguably appealable issues)
- Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) (Pa. precedent on counsel withdrawal procedures)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (requires counsel to state reasons for concluding appeal is frivolous when moving to withdraw)
- Commonwealth v. Hernandez, 783 A.2d 784 (Pa. Super. 2001) (Anders withdrawal checklist for Pennsylvania courts)
- Commonwealth v. Wright, 846 A.2d 730 (Pa. Super. 2004) (appellate court must conduct independent review when counsel seeks to withdraw)
- Commonwealth v. Swope, 123 A.3d 333 (Pa. Super. 2015) (discretionary sentencing challenges are not reviewable as of right)
- Commonwealth v. Allen, 24 A.3d 1058 (Pa. Super. 2011) (four-part test to invoke review of discretionary aspects of sentence)
- Commonwealth v. Coss, 695 A.2d 831 (Pa. Super. 1997) (within-statutory sentence claims of excessiveness do not raise a substantial question)
- Commonwealth v. Jones, 613 A.2d 587 (Pa. Super. 1992) (similar holding on within-statutory sentences)
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (presumption that sentencing court considered pre-sentence report and relevant mitigating information)