121 A.3d 1144

Pa. Super. Ct.

2015

COMMONWEALTH OF PENNSYLVANIA v. MICHAEL ANTHONY SALTER

No. 1653 WDA 2014

In the Superior Court of Pennsylvania

April 28, 2015

J-S25031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 9, 2014 in the Court of Common Pleas of Erie County Criminal Division at No.: CP-25-CR-0000591-2014

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:

Appellant, Michael Anthony Salter, appeals from the judgment of sentence imposed after he pleaded guilty to one count each of possession of a controlled substance and possession of drug paraphernalia.¹ Counsel has filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), on the basis that the appeal is wholly frivolous. We grant counsel‘s petition and affirm Appellant‘s judgment of sentence.

* Retired Senior Judge assigned to the Superior Court.

We take the following facts and procedural history from our independent review of the record. On January 29, 2014, Officers Gould² and Christopher J. Szoszorek were dispatched to the scene of a domestic dispute between Appellant and his girlfriend, Naomi Dodd. Upon the officers’ arrival at the scene, Dodd told them that she did not want to pursue charges for the domestic dispute, but that she would like Appellant to leave the residence for a while. Dodd consented to the officers’ entry into the apartment, at which point they smelled marijuana. While looking for Appellant, the officers found two potted marijuana plants and a digital scale. Thereafter, Appellant, whose license was suspended, drove away from the residence in Dodd‘s car.

On March 24, 2014, the Commonwealth filed an information against Appellant charging him with one count each of possession with intent to deliver a controlled substance, possession of a controlled substance, and driving while operating privilege is suspended or revoked; and three counts of possession of drug paraphernalia.³ On September 9, 2014, Appellant pleaded guilty to one count each of possession of a controlled substance and possession of drug paraphernalia. The Commonwealth nolle prossed the remaining charges. The same day, the court sentenced Appellant to an aggregate term of eighteen months of county probation and twenty hours of

community service, plus fines and costs. (See Sentencing Order, 9/09/14, at 1). Appellant timely appealed.⁴ Counsel filed an Anders brief on January 12, 2015, and a petition to withdraw on January 13, 2015, on the basis that the appeal is wholly frivolous.

The standard of review for an Anders brief is well-settled:

Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous must:

(1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) file a brief referring to anything that arguably might support the appeal but which does not resemble a “no-merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the court‘s attention.

[T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations and most quotation marks omitted). Further, our Supreme Court ruled in Santiago, supra, that Anders briefs must contain “a discussion of

counsel‘s reasons for believing that the client‘s appeal is frivolous[.]” Santiago, supra at 360.

Instantly, counsel‘s Anders brief and petition to withdraw substantially comply with the applicable technical requirements and reveal that he has made “a conscientious examination of the record [and] determined that the appeal would be frivolous[.]” Lilley, supra at 997. Additionally, the record establishes that counsel served Appellant with a copy of the Anders brief and petition to withdraw, and a letter of notice which advised Appellant of his right to retain new counsel or to proceed pro se and raise additional issues to this Court.⁵ See id.; (see also Petition for Leave to Withdraw as Counsel, 1/13/15, Exhibit 1, at 1). Further, the petition and brief cite “to anything that arguably might support the appeal[.]” Lilley, supra at 997; (see also Anders Brief, at 4-7). As noted by our Supreme Court in Santiago, the fact that some of counsel‘s statements arguably support the frivolity of the appeal does not violate the requirements of Anders. See Santiago, supra at 360-61.

Having concluded that counsel‘s petition and brief substantially comply with the technical Anders requirements, we must “conduct [our] own review of the trial court‘s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 (citation omitted).

The Anders brief raises one question for our review: “Whether the Appellant‘s sentence is manifestly excessive, clearly unreasonable and inconsistent with the objectives of the Pennsylvania Sentencing Code[?]” (Anders Brief, at 3).

Appellant‘s issue challenges the discretionary aspects of his sentence, which “must be considered a petition for permission to appeal.” Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation omitted).⁶

It is well-settled that:

When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, [that] the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We examine an appellant‘s Pa.R.A.P. 2119(f) statement to determine whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.

Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (case citations omitted) (emphases in original).

Here, Appellant has met the procedural requirement of including a Rule 2119(f) statement. (See Anders Brief, at 4-6). Accordingly, we must consider whether Appellant‘s statement raises a substantial question. See Hill, supra at 363-64.

Appellant‘s Rule 2119(f) statement maintains that “the term of probation ordered to be served by [him] conflicts with the objectives of Section 9721(b)[]” where the court failed to consider mitigating factors such as “his current and then-pending fatherhood, having graduated high school and continuing vocational education in veterinary science and construction, his employment at Berry Plastics, and the fact the controlled substance was only two marijuana plants.” (Anders Brief, at 6-7 (record citation

omitted)). An allegation that the court failed to consider all relevant factors does not raise a substantial question. See Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010) (“That the court refused to weigh the proposed mitigating factors as Appellant wished, absent more, does not raise a substantial question.“) (citations omitted). Accordingly, we conclude that Appellant has failed to raise a substantial question.

Moreover, our own independent review reveals that the court did not abuse its discretion⁷ when fashioning Appellant‘s sentence. The court considered the particular circumstances of Appellant‘s case, including the fact that he is a father; his age; his educational background and employment status; his criminal history; and the sentencing guidelines, including his prior record and offense gravity scores. (See N.T. Plea and Sentencing Hearing, 9/09/14, at 13-17). Therefore, we agree with counsel that Appellant‘s issue on appeal is frivolous. See Lilley, supra at 998. Additionally, we find no other non-frivolous issues that would merit relief.

Judgment of sentence affirmed. Counsel‘s application to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2015

Notes

35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.

Officer Gould‘s first name does not appear in the certified record.

35 P.S. §§ 780-113(a)(30) and (a)(16), 75 Pa.C.S.A. § 1543(a), and 35 P.S. § 780-113(a)(32), respectively.

On October 10, 2014, the court ordered Appellant to file a Rule 1925(b) statement. On October 30, 2014, counsel filed a statement of intent to file an Anders/McClendon brief. See Pa.R.A.P. 1925(c)(4). On November 3, 2014, the trial court filed an opinion and order in which it stated that, in light of counsel‘s notice of intent to file an Anders/McClendon brief, no opinion on the merits of Appellant‘s appeal would issue. See Pa.R.A.P. 1925(a).

Appellant has not filed a response to the petition to withdraw.

“[I]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.” (en banc) (citation omitted); see also , affirmed, .

In the case before us, Appellant did not file a post-sentence motion or raise an argument at sentencing that challenged his sentence, thus normally waiving his issue. (See N.T. Plea and Sentencing Hearing, 9/09/14, at 7-17); see also . However, because counsel has filed a petition to withdraw, we will not deem Appellant‘s issue waived. See (noting that, “[p]ursuant to Anders, this Court must review the merits of all claims set forth in an Anders brief in order to determine whether to grant counsel‘s petition to withdraw from representation, despite the fact that the issues have been waived.“) (citation omitted).

See , appeal denied, (“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion.“) (citation omitted).

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