Com. v. Terry, K.
Com. v. Terry, K. No. 1323 MDA 2016
| Pa. Super. Ct. | Mar 28, 2017Background
- Kenneth A. Terry and Brandy Spells were observed acting suspiciously in a Tommy Hilfiger outlet; employees saw Terry place merchandise under his coat and exit the store with items that triggered the alarm.
- Police detained Terry in the parking lot, recovered a pry bar and scissors on his person, and found stolen clothing (retail value $159.67) in a vehicle; at the police station Terry’s bag produced crack cocaine.
- Terry pled guilty on June 28, 2016 to retail theft, criminal conspiracy, possession of an instrument of crime (PIC), possession of a controlled substance, and possession of drug paraphernalia (open plea, no negotiated sentence).
- The court sentenced Terry to an aggregate term of 16 to 36 months’ incarceration (concurrent standard-range sentences) with credit for time served; concurrent probation terms and fines were imposed on narcotics-related counts.
- Terry filed a post-sentence motion and timely appealed; appellate counsel filed an Anders brief and petition to withdraw, asserting the appeal is frivolous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel may withdraw under Anders/Santiago | Counsel asserts, after review, no non-frivolous issues exist and seeks withdrawal | Appellant may oppose withdrawal or file pro se brief (right preserved) | Court found counsel substantially complied with Anders/Santiago and granted withdrawal |
| Whether the 16–36 month sentence is excessive (discretionary aspects of sentencing) | Terry contends the sentence is manifestly excessive and unreasonable | Commonwealth and trial court note sentences were within standard guideline ranges, concurrent, with credit for time served, and Terry’s prior score and repeated offenses justified the sentence | Court held Terry’s challenge lacked a substantial question; sentence affirmed as not an abuse of discretion |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (requires counsel to identify potentially arguable issues before withdrawing)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (refines Anders requirements for court-appointed counsel in Pennsylvania)
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (explains sentencing guidelines are advisory and review is deferential)
- Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (requires concise Rule 2119(f) statement to raise substantial question on discretionary sentencing)
- Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (holding that a claim that sentence is manifestly excessive attacks discretionary aspects of sentencing)