Opinion
J-S84041-16 No. 3562 EDA 2015
01-27-2017
COMMONWEALTH OF PENNSYLVANIA v. EARL LANE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 9, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004739-2014 BEFORE: OLSON, SOLANO, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Earl Lane, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas after he entered an open guilty plea to charges of possession with intent to deliver a controlled substance ("PWID") and persons not to possess a firearm. Appellant's counsel has filed a petition to withdraw and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We grant counsel's petition to withdraw and affirm the judgment of sentence.
18 Pa.C.S. § 780-113(a)(30).
We adopt the facts and procedural history set forth by the trial court's opinion. See Trial Ct. Op., 7/25/16, at 1-5. We note that Appellant entered an open guilty plea to the above referenced charges on September 15, 2015. On November 9, 2015, the trial court sentenced Appellant to an aggregate term of three to ten years of incarceration. Appellant filed a timely motion for reconsideration of the sentence, which the court denied on November 24, 2015. On November 30, 2015, Appellant filed the instant timely appeal. However, in lieu of a Pa.R.A.P. 1925(b) statement, Appellant's counsel, Lawrence J. Bozzelli, Esq. ("Counsel"), filed a statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). The trial court filed a responsive Pa.R.A.P. 1925(a) opinion concurring with Counsel by finding no meritorious grounds for appeal.
In his Anders brief, Counsel identifies the following issues:
Did the trial judge commit any errors while conducting the guilty plea and/or sentencing hearing?Anders Brief at 9-10. Appellant has not filed a pro se or counseled brief.
[Whether] the Superior Court should review the discretionary aspects of [Appellant's] sentence. Specifically, . . . [whether] the sentence [Appellant] received was too harsh or [an] abuse of discretion?
We note that Counsel failed to file a Pa.R.A.P. 2119(f) statement. However, this Court has held that where counsel files an Anders Brief, "we do not consider counsel's failure to submit a Rule 2119(f) statement as precluding review of whether [petitioner's] issue is frivolous." Commonwealth v. Bynum-Hamilton , 135 A.3d 179, 184 (Pa. Super. 2016) (citation and quotation marks omitted). Further, in this case, Counsel failed to set forth his issues complained of on review as required under Pa.R.A.P. 2111(a)(4). However, because we can discern the issues in the body of Counsel's Anders brief, we will review the merits. See Commonwealth v. Ryan , 909 A.2d 839, 841 (Pa. Super. 2006) (nonconformance with the rules of appellate procedure does not require waiver where appellate review is not hindered).
As a prefatory matter, we review counsel's petition to withdraw.
This Court must first pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under Anders , counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts, with citations to the record;
(2) refer to anything in the record that counsel believes arguably supports the appeal;
(3) set forth counsel's reasons for concluding that the appeal is frivolous; and
(4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Commonwealth v. Orellana , 86 A.3d 877, 879-80 (Pa. Super. 2014) (some citations omitted). If counsel complies with these requirements, "we will make a full examination of the proceedings in the [trial] court and render an independent judgment [as to] whether the appeal is in fact 'frivolous.'" Id. at 882 n.7 (citation omitted).
Santiago , 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: "(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[']s attention in addition to the points raised by counsel in the Anders brief."
Instantly, Counsel provided a factual and procedural summary of the case with citations to the record. Anders Brief at 6-7. Counsel indicated that he had made a conscientious examination of the record, and determined the appeal is wholly frivolous. Id. at 9. Further, Counsel provided the relevant law and discussed why Appellant's issues are meritless. Id. at 9-11. Counsel provided Appellant with a copy of the Anders brief and a letter advising him of his rights. Counsel's Letter to Appellant, 9/6/16. In light of the foregoing, we hold Counsel has complied with the requirements of Santiago. See Orellana , 86 A.3d at 879-80. We now examine the record to determine whether the appeal is wholly frivolous. See id. at 882 n.7.
After careful consideration of the Anders brief, the record, and the decision of the trial court, we affirm on the basis of the Honorable Susan I. Schulman's thorough opinion. See Trial Ct. Op. at 2-6 (finding Appellant's issues wholly frivolous where (1) Appellant's guilty plea colloquy indicated that he fully understood the nature of the charges to which he was pleading guilty and the rights he was forfeiting by entering the plea, (2) Appellant's sentence was less than the maximum sentence, and (3) Appellant's sentence was below the applicable standard range sentencing guidelines and was fashioned after the trial court "closely examined Appellant's pre-sentence report and the circumstances of Appellant's crimes, his criminal history, his capacity to rehabilitate, and his individual circumstances"). Thus, we agree with Counsel that Appellant's intended challenge to the validity of his guilty plea was frivolous and that a challenge to the excessiveness of the sentence would not raise a substantial question. Moreover, even if we were to consider the sentence, there is no basis in the record or the law to disturb the sentence for the reasons set forth by the trial court.
See Commonwealth v. Austin , 66 A.3d 798, 808 (Pa. Super. 2013) (reiterating that "there is no automatic right to appeal" the discretionary aspects of a sentence and that a substantial question warranting review of a sentence exists "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process") (citations omitted).
Our independent review of the record reveals no other issues of arguable merit. See Orellana , 86 A.3d at 882 n.7. Accordingly, we grant Counsel's petition to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Counsel's petition to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017
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