Com. v. Winiavski, H.
581 MDA 2017
| Pa. Super. Ct. | Dec 13, 2017Background
- Appellant Hassan Andrew Winiavski pled guilty to one count of involuntary deviate sexual intercourse (first-degree felony) arising from charges that included multiple counts of IDSI and corruption of minors.
- Sentencing occurred January 19, 2017; court imposed 8 to 20 years’ imprisonment (at the lower end of the guideline range).
- Winiavski filed a timely post-sentence motion preserving a challenge to the discretionary aspects of the sentence.
- Court- appointed counsel filed an Anders/Santiago brief and moved to withdraw, notifying Winiavski of his rights to new counsel or to proceed pro se.
- Counsel argued Winiavski’s sentencing claim (excessiveness and inadequate consideration of rehabilitative needs) was frivolous; Superior Court conducted independent review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant raised a substantial question to permit review of discretionary aspects of sentence | Winiavski argued sentence was excessive given lack of prior record and court failed to account for treatment/rehabilitation | Commonwealth (and court) argued sentencing record and PSR show court considered relevant factors and the claim was a bald assertion of excessiveness | No substantial question; claim frivolous and not subject to merits review |
| Whether counsel complied with Anders/Santiago requirements to withdraw | Winiavski implicitly challenged counsel’s adequacy by contesting sentence on appeal | Counsel filed Anders/Santiago brief summarizing facts, citing record, noting arguably supportable issues, explaining frivolity, and notifying client | Counsel satisfied Anders/Santiago; motion to withdraw granted |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedural protection when counsel seeks to withdraw on appeal)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (requires Anders brief to summarize record, identify arguable issues, and explain frivolity)
- Commonwealth v. Leatherby, 116 A.3d 73 (Pa. Super. 2015) (four-part test for discretionary-aspect sentencing appeals)
- Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (presumption that sentencing judge reviewed presentence report and relevant information)
- Commonwealth v. Mouzon, 812 A.2d 626 (Pa. 2002) (appellant must articulate how sentence violated Sentencing Code)
- Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super. 2013) (claim of inadequate consideration of mitigating factors ordinarily does not raise a substantial question)
- Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (when a substantial question exists for sentencing review)
- Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 2006) (bald excessiveness claims do not raise substantial question)
- Commonwealth v. Rojas, 874 A.2d 638 (Pa. Super. 2005) (appellate court independent review following Anders brief)
- Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011) (discretionary-aspect sentencing challenge treated as petition for permission to appeal)